Appellate Division: Second Judicial Department

M276612

E/sl

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

MARK C. DILLON

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2020-06884 In the Matter of Thomas P. Casper, admitted as Thomas Paul Casper, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Thomas P. Casper, respondent. (Attorney Registration No. 2279180)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District to immediately suspend the respondent from the practice of law, pursuant to 22 NYCRR 1240.9(a)(2), (3) and (5), upon a finding that he is guilty of professional misconduct immediately threatening the public interest, and to refer the issues raised to a Special Referee, to conduct a post-suspension hearing and to hear and report on the underlying issues raised by the petition. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 23, 1981, under the name Thomas Paul Casper.

Upon the papers filed in support of the motion, and no papers having been submitted in opposition or in relation thereto, it is

ORDERED that the branches of the petitioner's motion which are to immediately suspend the respondent from the practice of law, pursuant to 22 NYCRR 1240.9(a)(2), (3) and (5) and to refer the issues raised to a Special Referee to conduct a post-suspension hearing and report on the post-suspension hearing are granted; and it is further,

ORDERED that the motion is otherwise denied; and it is further,

ORDERED that pursuant to 22 NYCRR 1240.9(a)(2),(3) and (5), the respondent, Thomas P. Casper, admitted as Thomas Paul Casper, 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, Thomas P. Casper, admitted as Thomas Paul Casper, shall promptly comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); 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, Thomas P. Casper, admitted as Thomas Paul Casper, 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 or 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 if the respondent, Thomas P. Casper, admitted as Thomas Paul Casper, 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 1240.15(f); and it is further,

ORDERED that the issues raised are referred to the Honorable Alfred J. Weiner, 100 Dutch Hill Road, Suite 390, Orangeburg, New York 10962, as Special Referee, to conduct a post-suspension hearing and issue a report on the post-suspension hearing, with the post-suspension hearing to be completed within 60 days of the date of this decision and order on motion, or as soon thereafter as practicable, and the post-suspension hearing report, which contains his findings on the issues, to be submitted within 60 days after the conclusion of the post-suspension hearing or the submission of post-hearing memoranda.

Discussion

We find, prima facie, that the respondent, Thomas P. Casper, admitted as Thomas Paul Casper, is guilty of professional misconduct immediately threatening the public interest based on uncontroverted evidence that he misappropriated client funds entrusted to him, commingled personal funds with client funds, and failed to fully cooperate with the petitioner's investigation regarding the same.

Escrow Account

At all times relevant herein, the respondent maintained an attorney escrow account at JP Morgan Chase Bank, titled "Thomas P. Casper, Attorney at Law, IOLA Account," account ending in 8920 (hereinafter the escrow account).

Dempsey Trust Matter

In 2017 and 2018, the respondent used the escrow account to receive and disburse funds in connection with the Dempsey Trust real estate transaction (hereinafter Dempsey matter). On or about August 1, 2017, the respondent disbursed check no. 2357 in the amount of $6,945 in connection with the Dempsey matter from the escrow account payable to "New York State Income Tax." On August 22, 2017, and August 23, 2017, check no. 2357 was presented for payment and dishonored due to insufficient funds. Although the respondent advised the petitioner that he had issued a replacement check outside the escrow account, the petitioner confirmed that he issued escrow check no. 2920, dated April 10, 2018, as replacement of the dishonored check. Thereafter, notwithstanding repeated inquiries from the petitioner, the respondent has failed to account for the source of the funds used to pay check no. 2920.

Shepherd Transaction

Between on or about June 5, 2017, and on or about September 20, 2017, the respondent over-disbursed funds from the escrow account in the amount of $1,385.28 in connection with the Shepherd real estate matter.

Doyle Matter

On or about June 26, 2017, the respondent deposited $31,340 of funds received from the sale of personal property into the escrow account at a time when client and/or third party funds were on deposit.

Kuo Estate Matter

In 2017 and 2018, the respondent made deposits and disbursements from the escrow account in connection with various matters associated with the Estate of Angeline Kuo (hereinafter the Kuo estate). On or about April 30, 2018, the respondent deposited $320,390.67, received from the sale of a piece of real property, owned by the Kuo estate, into the escrow account. Throughout the same period, the respondent used the escrow account for the receipt and disbursement of other funds held incident to his practice of law, including, among others, in the Dempsey and Doyle matters. Despite this, the respondent failed to disburse the property sale proceeds to the executor of the Kuo estate for deposit into a separate estate account, under the control of the Kuo estate's executor.

Failure to Cooperate

By letter dated October 5, 2017, the petitioner notified the respondent of a sua sponte investigation based upon the dishonored check report and requested he submit a response within 20 days. The respondent failed to respond within the established time frame and a follow-up letter was sent, dated October 25, 2017, demanding the respondent forward a response to the October 5 letter "forthwith." On November 21, 2017, the respondent contacted the petitioner seeking a final adjournment to December 1, 2017, which was granted. On December 6, 2017, the respondent filed an answer wherein, inter alia, he requested a 10-day extension. Notwithstanding the extension, the respondent failed to follow-up as promised.

By letter dated February 5, 2018, the petitioner requested the respondent provide responses to previous and additional inquires within 10 days. The respondent failed to respond. By letter dated March 14, 2018, the petitioner again demanded respondent provide a response within 10 days. The respondent thereafter did not contact the petitioner until April 9, 2018, and did so only to request additional time. By letter dated April 17, 2018, the respondent submitted a response where, inter alia, he requested a two-week extension. Thereafter, by letter dated July 30, 2018, the petitioner notified the respondent of additional concerns and directed him to submit a response regarding the same on or before August 15, 2018, and by letter dated July 31, 2018, the petitioner notified the respondent of an additional investigation and directed him to answer the complaint within 10 days of receipt. The respondent, however, failed to respond to either letter.

On February 11, 2019, the respondent appeared for an examination under oath (hereinafter EUO). At the conclusion of the EUO, the petitioner requested that the respondent submit additional information on or before February 19, 2019. By letter received February 21, 2019, the respondent submitted only a partial response to the outstanding information requested by the petitioner. By letter dated September 10, 2019, the petitioner again asked the respondent to provide the outstanding information no later than September 23, 2019, and advised that no adjournments would be granted. On September 23, 2019, the respondent submitted a partial response and requested a 10-day extension, which was denied. On September 27, 2019, by letter and by phone conversation, the petitioner advised the respondent that he had still not submitted a complete response to the September 10, 2019 inquiry and again demanded he provide the outstanding information. In a letter dated October 4, 2019, the respondent conceded that he had failed to provide all of the outstanding information.

By letter dated February 7, 2020, the petitioner requested the respondent provide escrow account records by February 21, 2020. However, he failed to do so.

The petitioner thereafter spoke with the respondent on May 18 and May 19, 2020, regarding a final request that he comply with the outstanding requests. Additionally, by letter dated May 20, 2020, the petitioner sent a final request for the respondent to provide the outstanding information no later than May 29, 2020. To date, the respondent has failed to provide the requested information and/or records.

The respondent, although personally served on September 15, 2020, has not filed a response to the petitioner's motion.

Conclusion

Accordingly, we find that the petitioner has sufficiently demonstrated that the respondent poses an immediate threat to the public interest based on his misappropriation of client funds and his longstanding failure to cooperate with the lawful investigations of the Grievance Committee.

Based upon the foregoing, the petitioner's motion is granted to the extent that the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 1240.9(a)(2),(3) and (5), pending further order of this Court, the matter is referred to a Special Referee for a post-suspension hearing and to report on the post-suspension hearing, and the motion is otherwise denied.

MASTRO, A.P.J., RIVERA, DILLON, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court