Appellate Division: Second Judicial Department

M62193

K/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

REINALDO E. RIVERA, JJ.

2007-04846 In the Matter of Mayank V. Munsiff, an attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; Mayank V. Munsiff, respondent. (Attorney Registration No. 4102794)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second and Eleventh Judicial Districts for an order: 1) suspending the respondent from the practice of law pending charges of professional misconduct, pursuant to 22 NYCRR 691.4(l)(1)(ii) and(iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest, in that he has made substantial admissions under oath that he has committed acts of professional misconduct and based upon uncontroverted evidence of professional misconduct; 2) authorizing the institution and prosecution of a disciplinary proceeding against the respondent based upon a petition dated May 3, 2007; 3) directing respondent to submit a written answer to the petition; and 4) referring the issues raised to a Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on December 11, 2002.

Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), the respondent, Mayank A. Munsiff, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,

ORDERED that the respondent shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Mayank V. Munsiff, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law of its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Second and Eleventh Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Mayank V. Munsiff, based on the petition dated May 3, 2007; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second and Eleventh Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201-3745, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer with this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Jerome M. Becker, a former Judge of the Criminal and Family Courts, c/o Douglas Becker, Esq., Joseph P. Day Co., 9 East 40th Street, 8th floor, New York, N.Y. 10016, as Special Referee to hear and report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Mayank V. Munsiff, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his substantial admissions under oath and upon other uncontroverted evidence of professional misconduct.

On or about May 26, 2006, the Grievance Committee received a complaint from Robert L. Schnepps, an attorney representing the respondent's former client, Josephine Tellez, executrix of the estate of her husband, Anibal Tellez. Mrs. Tellez had retained respondent in October 2004. Monies in excess of the sum of $1,000,000 were marshalled for the Tellez Estate from various bank accounts and from the sale of properties and were deposited in an Estate account maintained by the executrix. Mrs. Tellez paid the bill submitted to her by the respondent in the amount of $8,125. The respondent deposited a portion of those funds in his escrow account and another portion in his business account. The deposit of earned legal fees into the escrow account, which contained client funds, constituted commingling, in violation of DR 9-102(a).

Between June 30 and December 19, 2005, the respondent directed Ms. Tellez to issue four estate checks, in the aggregate sum of $140,000 for deposit into his escrow account. The respondent indicated that he would hold those funds in his escrow account to be used for court costs and legal fees. The respondent proceeded to use those estate funds for personal and office expenses and even other clients' expenses without the prior approval of the executrix. By so doing, the respondent converted Estate funds, in violation of DR 9-102(a). The respondent's explanation for the expenditures made with Estate funds includes checks for his malpractice insurance premiums, office rent (even though he works from his residence), gift baskets to the Queens County Bar Association for "good will," telephone bills, bar association dues, a subscription to the New York Law Journal, and Continuing Legal Education program tuition. The respondent gave the following explanation for his actions: "Because of time constraints and because as the lawyer for the fiduciary I had to keep myself solvent to advance the best interest of the beneficiaries. "

At his investigative appearances on March 14 and April 4, 2007, the respondent admitted under oath that he deposited his earned legal fee in his escrow account and retained his perceived earned fees in his escrow account until he needed to pay himself. The respondent further admitted that he wrote checks against Estate funds held in his escrow account for expenses incurred on other clients' cases and for unrelated business and personal expenses.

By letter dated May 22, 2006, Mrs. Tellez discharged the respondent for cause. She filed a petition to set the respondent's compensation from the Estate before the Surrogate's Court, Queens County. The respondent filed opposition papers and cross motions.

By decision dated November 28, 2006, Surrogate Robert L. Nahman discharged the respondent as attorney for the Estate for cause and ruled that he is not entitled to any legal fee from the Estate. The decision concludes that the respondent was using Estate funds as though it were a business account in order to subsidize his entire legal practice, in violation of DR 9-102(b)(1).

Based upon Surrogate Nahman's decision, an order was entered on December 14, 2006, discharging the respondent for cause and directing him to return the sum of $159,750 in legal fees and disbursements taken from the Estate. Upon the complainant's concession that $22,050 of the amount expended by the respondent actually benefitted the Estate, the amount to be returned by the respondent was reduced by that sum by order dated April 3, 2007.

The initial decision by the Office of Court Administration (hereinafter OCA) to deny the respondent a secure pass was overruled by the Supreme Court on the ground that the denial violated the Americans with Disabilities Act of 1990 (42 USC § 12101). By order dated June 8, 2006, the Appellate Division, First Department, reversed and upheld OCA's determination not to issue the secure pass based solely on the respondent's criminal record.

Throughout his opposition papers, the respondent admits to numerous violations of the Disciplinary Rules but concludes that although he did not adhere to appropriate accounting procedures, there was no theft and no one was harmed. The respondent explains that he felt justified inasmuch as his actions were undertaken for the convenience of the executrix. It is the respondent's express position that he did nothing wrong.

The respondent maintains that there was no conversion whatsoever and there is total justification for his technical commingling. While he admits that he wrote checks directly from the escrow account to the payees for his malpractice insurance premiums, office rent, and other personal expenses, these all emanated from his legal fees. His fees were withdrawn from the escrow account "within a reasonable time under the circumstances or practically as soon as possible."

In the respondent's view, this is essentially a dispute and a misunderstanding about legal fees and costs as opposed to commingling and misappropriation of funds.

Notwithstanding the respondent's strongly expressed belief that he has not committed any unethical acts, there exists uncontroverted evidence that he drew checks on his escrow account payable to himself for expenses not directly related to his clients' benefit. The respondent's reasoning overlooks the ruling of Surrogate Nahman that "it was clear that the Respondent was using estate fund as though it was a business account in order to subsidize his entire legal practice."

Throughout his response papers, the respondent has evinced an inability to grasp the concept that his actions, albeit not venal in nature, are in direct contravention of the disciplinary rules.

Accordingly, the Grievance Committee's motion is granted, the respondent is immediately suspended and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent.

PRUDENTI, P.J., MILLER, SCHMIDT, CRANE and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court