In re Anschell

11 A.D.3d 56, 781 N.Y.S.2d 310, 2004 N.Y. App. Div. LEXIS 9789
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 15, 2004
StatusPublished
Cited by19 cases

This text of 11 A.D.3d 56 (In re Anschell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Anschell, 11 A.D.3d 56, 781 N.Y.S.2d 310, 2004 N.Y. App. Div. LEXIS 9789 (N.Y. Ct. App. 2004).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Grosvenor Anschell was admitted to the practice of law in the State of New York by the First Judicial Department on June 27, 1956. At all times relevant to this proceeding, respondent has maintained an office for the practice of law in the State of Washington, where he was admitted to the practice of law on March 8, 1954.

Respondent has been previously disciplined by this Court on two occasions: (1) by order entered July 20, 1976 (53 AD2d 297 [1976]), this Court suspended respondent for one year based upon his 1971 disbarment in Canada for conversion of client funds. Respondent was subsequently reinstated by order of this Court entered March 30, 1982 (87 AD2d 571 [1982]); and (2) by-order entered October 9, 2001, this Court suspended respondent for two years based upon an October 30, 2000 order from the Supreme Court of the State of Washington which suspended respondent for two years, followed by two years of supervised probation, for his neglect of three immigration matters, his failure to inform his clients of problems with their cases, his collection of fees without performing legal services and refusing to refund the unearned fee, and for his failure to cooperate with the disciplinary investigation (286 AD2d 173 [2001]).

Pursuant to an investigation by the Washington State Bar Association (WSBA) with regard to three new complaints against respondent, he was subsequently disbarred from the practice of law in July 2003 after a full hearing in which he fully participated (149 Wash 2d 484, 69 P3d 844 [2003]). In disbarring respondent, the Washington court determined that respondent had violated several Washington Court Rules of Professional Conduct (RPC) and found no factors in mitigation. It is undisputed that respondent failed to advise the Clerk of this Court or the Departmental Disciplinary Committee (Committee) of his disbarment imposed by the State of Washington. Moreover, respondent remains suspended from the practice of law in the State of New York and has not sought reinstatement.

The Committee now seeks an order disbarring respondent from the practice of law pursuant to the doctrine of reciprocal discipline as set forth in 22 NYCRR 603.3, predicated upon his disbarment by the Supreme Court of Washington, or alternatively, imposing sanctions upon respondent as this Court deems appropriate. Respondent has failed to answer this petition.

[58]*58Inasmuch as this proceeding is premised upon reciprocal discipline, respondent may only raise those three defenses enumerated in 22 NYCRR 603.3 (c) (see Matter of Terzis, 274 AD2d 230 [2000]). Respondent is precluded from raising a defense pursuant to 22 NYCRR 603.3 (c) (1) since he was given ample notice and opportunity to be heard in the Washington proceeding. The record clearly demonstrates that respondent actively participated and defended himself in the Washington disciplinary proceeding, including answering the complaint, admitting certain facts, testifying at the hearing, appealing the disciplinary board’s recommendation to the court, and seeking reconsideration of the court’s disbarment order.

Likewise, respondent has no valid defense under 22 NYCRR 603.3 (c) (2) inasmuch as the proof submitted was sufficient to support the findings of misconduct. Since respondent did not challenge the findings of fact, which were subsequently confirmed by the Washington disciplinary board and court, respondent is precluded from raising a defense that there was. an infirmity of proof establishing his misconduct.

Since the misconduct for which respondent was disciplined in Washington would also constitute misconduct in New York, respondent has no defense under 22 NYCRR 603.3 (c) (3). The Washington court found respondent had violated RPC 1.3 on four occasions. RPC 1.3 states: “A lawyer shall act with reasonable diligence and promptness in representing a client.” We find that Code of Professional Responsibility DR 6-101 (a) (3) (22 NYCRR 1200.30), which states that an attorney shall not neglect a legal matter entrusted to the lawyer, is analogous to Washington’s rule (286 AD2d at 177).

The Washington court also found respondent had violated RPC 1.4 on two occasions. RPC 1.4 states:

“(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
“(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

While the New York Code does not have a provision exactly the same as RPC 1.4, in this Court’s previous decision suspending respondent we found RPC 1.4 comparable to DR 6-101 (a) (3) (286 AD2d at 177). Moreover, this Court has repeatedly found conduct such as respondent’s failure to communicate with his [59]*59clients as to the status of their cases to be a form of neglect and, thus, a violation of DR 6-101 (a) (3) (see e.g. Matter of Denhoffer, 127 AD2d 230, 232 [1987]).

In addition, the Washington court determined respondent violated RPC 1.9 (a) which prohibits attorneys from representing another person against a former client “in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts.” We find that RPC 1.9 is essentially similar to DR 5-108 (a) (1) (22 NYCRR 1200.27) which provides “a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure . . . [thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client” (see Matter of Ghobashy, 185 AD2d 23 [1993], lv denied 82 NY2d 701 [1993], cert denied 510 US 1045 [1994]).

Respondent was also found to have violated RPC 1.14 by failing to preserve the identity of escrow funds by his untimely deposit of funds, and by failing to disburse funds in the transaction per escrow instructions. RPC 1.14 (a) states: “[a]ll funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable interest-bearing trust accounts . . . and no funds belonging to the lawyer or law firm shall be deposited therein . . .” New York rule DR 9-102 (b) (1) (22 NYCRR 1200.46) is analogous to the above rule insofar as it requires attorneys to deposit escrow funds into specially designated trust accounts, and New York courts have disciplined attorneys for misconduct similar to respondent’s (see Matter of Klugerman, 189 AD2d 284 [1993]).

Respondent’s failure to maintain proper escrow records violated RPC 1.14 (b) (3), which requires attorneys who maintain client funds in escrow accounts to “[m]aintain complete records of all funds ... of a client coming into the possession of the lawyer and render appropriate accounts to his or her client regarding them.” DR 9-102 (d), which is entitled “Required bookkeeping records,” is clearly similar to the Washington rule and this Court has disciplined attorneys for failing to maintain required escrow records (see e.g. Matter of Fong, 308 AD2d 19 [2003]).

The Washington court also found that respondent had violated RPC 1.15 (d) by failing to withdraw, from representing a client. RPC 1.15 states as pertinent:

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Bluebook (online)
11 A.D.3d 56, 781 N.Y.S.2d 310, 2004 N.Y. App. Div. LEXIS 9789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anschell-nyappdiv-2004.