In re Baltimore

132 A.D.2d 424, 522 N.Y.S.2d 563, 1987 N.Y. App. Div. LEXIS 50341
Appellate Division of the Supreme Court of the State of New York·Decided December 29, 1987·Published·Cited by 3 cases

Opinion

OPINION OF THE COURT

Per Curiam.

Petitioner, the Departmental Disciplinary Committee for the First Department, seeks an order confirming the Hearing Panel’s findings of fact and conclusions of law and disbarring respondent from the practice of law, pursuant to 22 NYCRR 603.4 (d).

Respondent was admitted to practice in the First Department on April 15, 1935 and, until his suspension, maintained an office for the practice of law within this Department. By order entered June 4, 1987, he was suspended from practice as an attorney and counselor-at-law, pending final disposition of the complaint and/or until further order of this court (Matter of Baltimore, 128 AD2d 323).

On February 6, 1987, respondent was served with a notice and a statement of charges, concerning complaints of professional misconduct, involving seven separate charges. These included conversion of clients’ and third-party funds, neglect, failure to preserve funds in a special or escrow account, issuance of checks with insufficient funds and misrepresentations to the Committed during the investigation. He answered the complaint on March 2, 1987, admitting several of the allegations. Thereafter, a hearing was held, at which respondent offered no evidence, either in defense or in mitigation. While the matter was pending before the Hearing Panel, awaiting its decision and recommendations, the Committee moved to suspend respondent from practice pursuant to 22 NYCRR 603.4 (e) (1) (ii) and (iii), pending resolution of the charges against him, which motion was granted (Matter of Baltimore, 128 AD2d 323, supra).

Review of the record fully supports the decision and recommendations by the Hearing Panel with respect to each of the several charges of professional misconduct, much of which has been admitted.

Charge 1 alleges that, in September 1979, Doretha Jackson retained Baltimore to represent her in an action to be brought against the City of New York and the Transit Authority for personal injuries sustained when a subway door closed on Ms. Jackson’s hand. Respondent filed a notice of claim and appeared with his client at a Transit Authority hearing but, thereafter, failed to institute suit. Between April 1980 and [426]*426January 1986, he neglected to respond to Ms. Jackson’s calls or letters. Finally, he advised her that no action had been commenced and that the Statute of Limitations had expired. While he offered to compensate her for loss of earnings, he never did. This conduct, the Hearing Panel found, amounted to neglect of a legal matter (Code of Professional Responsibility DR 6-101 [A] [3]), failure to carry out a contract of employment (DR 7-101 [A] [2]) and failure to file a retainer statement with the Office of Court Administration (22 NYCRR 603.7 [a]).

The second charge relates to dishonesty and conversion of funds to be held by respondent as escrow agent. In August 1984, Ronald Zanders, who had entered into negotiations to purchase the stock and assets of a limousine rental business, delivered to Baltimore a handwritten letter agreement and a $5,000 check to be held in escrow as a deposit on the purchase price. The agreement, acknowledged and signed by respondent, stated that the $5,000 would be deposited in a trust account and refunded to Zanders if the deal was not completed. When this eventuality occurred, after the parties were unable to agree on terms, Zanders requested return of the deposit, which respondent refused or failed to make. Thereafter, in February 1985, Zanders instituted suit to recover the deposit and, at an examination before trial, respondent testified that he was holding the $5,000 in escrow when, at the time, his bank statement showed a balance of only $3,699.47. Subsequently, he misrepresented to the Committee that the $5,000 would be deposited with the Supreme Court pending resolution of the lawsuit, which was never done. The Hearing Panel found that respondent had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation (Code of Professional Responsibility DR 1-102 [A] [4]), prejudicial to the administration of justice (DR 1-102 [A] [5]) and which adversely reflected upon his fitness to practice law (DR 1-102 [A] [6]).

Charge 3 relates to respondent’s failure to maintain and his conversion of a different escrow fund. In December 1984, Baltimore received $30,000, to be held in escrow in his trust account and returned if negotiations with respect to the underlying transaction collapsed. The agreement specifically provided that, if a letter of commitment was not obtained within 10 banking days, the agreement would be rendered invalid and respondent would return the $30,000 escrow. Respondent signed the agreement as trustee and escrow agent and, thereafter, deposited the fund in his trust account. How[427]*427ever, when the negotiations collapsed, he failed to return the escrow and misrepresented that he would make repayment. The Hearing Panel found that this conduct adversely reflected on his fitness to practice law (Code of Professional Responsibility DR 1-102 [A] [6]), involved dishonesty, fraud, deceit or misrepresentation (DR 1-102 [A] [4]) and amounted to conduct prejudicial to the administration of justice (DR 1-102 [A] [5]).

Charge 4 alleges that respondent had improperly disbursed certain other funds also held in escrow. In January 1985, Baltimore was retained to represent Donald Ramsay, who had entered into a contract to sell a vacant lot at 4 West 104th Street, New York, New York, for the sum of $120,000. Pursuant to the contract, respondent received $12,000 as a down payment, to be held in escrow until the closing but, two weeks later, without the knowledge, consent or authorization of the buyer, he improperly disbursed to his client the sum of $1,000 of the contract deposit and, thereafter, converted $9,000 of the fund to his own use. On March 7, 1985, at the closing, he failed to remit the escrow to his client. Subsequently, on April 11, 1985, he delivered a check to Ramsay in the sum of $8,520, drawn on his "trustee” account (deducting from the $12,000 down payment, $1,680 for disbursements and $1,800 for legal fees), which check was twice returned for insufficient funds. Thereafter, in May 1985, he paid Ramsay $10,320. Respondent did not deny this charge and, following the hearing, the Panel found his conduct to evince dishonesty, fraud, deceit or misrepresentation which adversely reflected on his fitness to practice law (Code of Professional Responsibility DR 1-102 [A] [4], [6]).

Charge 5 pertains to respondent’s representation of the seller of premises at 229 West 135th Street, New York, New York. Under the contract of sale, on May 16, 1985, Baltimore received $7,500 as a down payment on the purchase price, in escrow until the closing. Subsequently, without the knowledge or permission of either party, he withdrew the escrow, converting it to his own use. While he denied having converted the sum, his check to the seller, drawn on his trustee account, was returned for insufficient funds on two occasions, on September 23 and December 13, 1985, and was not paid in full until nine months later, in June 1986. Also, during the intervening period, he made several misrepresentations that he would pay his client $1,500 in lost interest and penalties because of the delay in repaying the fund and made similar misrepresentations to the Committee. The Hearing Panel [428]

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In re Baltimore, 132 A.D.2d 424, 522 N.Y.S.2d 563, 1987 N.Y. App. Div. LEXIS 50341 (N.Y. Ct. App. 1987).

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