Thursday, July 7, 2016

An apparently ignoble career at the Bar culminated in a disbarment imposed yesterday by the New York Appellate Division for the Second Judicial Department.

In determining an appropriate measure of discipline to impose, we find that the respondent has engaged in serious misconduct, including a repeated and longstanding failure to honor his duties as a fiduciary as demonstrated by his misappropriation of escrow funds on multiple matters, commingling of client and personal funds, failure to maintain and produce required bank and bookkeeping records, as well as his failure to cooperate with the lawful demands of the Grievance Committee concerning the investigation of multiple complaints. Of note, the respondent has an extensive disciplinary record, having received eight admonitions and six letters of caution for similar misconduct, including his failure to properly handle funds or property in which another party had a potential interest, commingling personal funds with funds held as a fiduciary incident to the practice of law, and failure to cooperate with grievance investigations. Under the totality of circumstances, effective immediately, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law (see Matter of Goddard, 103 AD3d 139). In view of the respondent's disbarment, the application pursuant to 22 NYCRR 691.3, under Appellate Division Docket No. 2014-06741, is discontinued.

The court found misconduct beyond that found by the referee

After the hearings were completed on April 22, 2015, the Special Referee filed a report in which he sustained charges 1-17, 21, 24-42, 44, and 49, sustained in part charge 18, and did not sustain charges 19, 20, 22, 23, 43, and 45-48. Further, with respect to the application to impose discipline pursuant to 22 NYCRR 691.3, the Special Referee found that the respondent failed to establish that the order of the Unites States District Court for the Southern District of New York dated May 23, 2014, was arrived at in deprivation of the right of due process to which the respondent is entitled.

The Grievance Committee now moves to confirm in part and disaffirm in part the Special Referee's report, and to impose such discipline upon the respondent as this Court deems appropriate. Prior to submitting response papers, the respondent filed an affidavit of resignation with this Court sworn to on January 7, 2016. Thereafter, the respondent, by his attorney, submitted an affirmation in opposition to the Grievance Committee's motion, contending that, in view of the respondent's affidavit of resignation, the motion was moot and, therefore, should be denied. In that regard, we note that the respondent's affidavit of resignation simply acknowledges that he is "aware of a pending investigation" that concerns his failure to cooperate with the Grievance Committee in connection with one complaint and, as such, does not sufficiently acknowledge the extent of his professional misconduct. Furthermore, under the circumstances of this case, the acceptance of the respondent's proffered resignation at this late stage, after the hearings have been completed and the Special Referee has filed a report, would serve only to allow him to avoid the findings of his professional misconduct. We therefore reject the respondent's proffered resignation. As to the charges in the petition and the supplemental petition, we find the Special Referee properly sustained charges 1-17, 21, 24-42, 44, and 49, and in part charge 18. However, we find that the Special Referee improperly declined to sustain charges 19, 20, 22, 23, 43, and 45-48, and in part charge 18, and those charges should have been sustained, based upon the evidence adduced.

The federal district court had already disbarred the attorney.

I hope that cases like these will not come before the court in the future with a total of 14 "cautions" and "admonitions" for "similar misconduct." That sounds to me an awful lot like a regulatory failure. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/07/an-apparently-ignoble-career-at-the-bar-culminated-in-a-disbarment-imposed-yesterday-by-the-new-york-appellate-division-for-t.html