In re Cox

76 A.D.2d 301, 906 N.Y.S.2d 56

This text of 76 A.D.2d 301 (In re Cox) 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 Cox, 76 A.D.2d 301, 906 N.Y.S.2d 56 (N.Y. Ct. App. 2010).

Opinion

OPINION OF THE COURT

Per Curiam.

The Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated October 3, 2008 containing 13 charges of professional misconduct. After a preliminary conference on June 29, 2009, at which the parties unsuccessfully attempted to reach a stipulation in order to narrow the issues, the matter was set down for a hearing. The hearing was held on July 9, 2009, July 10, 2009, July 13, 2009 and July 17, 2009.

At the close of the hearing, the Special Referee directed both parties to submit posthearing memoranda by a date certain. After extending that date, the Special Referee issued an order dated October 6, 2009, directing that, upon the respondent’s failure to submit a memorandum within 10 days, the proposed findings and conclusions of law submitted by the Grievance Committee dated October 1, 2009 would be deemed uncontroverted. Upon the respondent’s failure to submit a memorandum or to otherwise contact him, the Special Referee found the Grievance Committee’s proposed findings and conclusions of law to be uncontroverted, and sustained all of the 13 charges based on the Grievance Committee’s posthearing memorandum.

The Grievance Committee now moves to confirm the report of the Special Referee for the reasons set forth in its supporting affirmation and its proposed findings and conclusions of law, and to impose such discipline upon the respondent as this Court deems just and proper. The respondent has not submitted a cross motion or a reply to the Grievance Committee’s motion to confirm, and has not requested additional time in which to do so.

[303]*303Charge one alleges that the respondent engaged in conduct adversely reflecting on her fitness to practice law by converting funds and/or failing to safeguard funds entrusted to her as a fiduciary, in violation of Code of Professional Responsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]).

The respondent maintains an attorney escrow account at Bank of America. She received a deposit of $5,000 on or about August 2, 2006, on behalf of client Lacarrubba, which was returned uncollected on or about August 7, 2006. The respondent made a disbursement of $950 from her escrow account on or about September 29, 2006, payable to Lisa L. Cox, Esq. She also made the following disbursements from her escrow account on September 29, 2006: $100 payable to C, S, C, B & V, LLP, $377.46 payable to Carriage House Owners Corporation, $450 payable to Sherry & Sons, Inc., and $300 payable to Carriage House Owners Corporation.

At the time she made those disbursements, the respondent failed to insure that she had adequate funds on deposit relevant thereto. The respondent ultimately received a replacement check for $5,000 which she deposited on November 28, 2006.

Charge two alleges that the respondent engaged in conduct adversely reflecting on her fitness to practice law by converting funds and/or failing to safeguard funds entrusted to her as a fiduciary, in violation of Code of Professional Responsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]), based on the facts set forth in charge one.

On October 20, 2006, the respondent’s attorney escrow account had a negative balance of $539.96.

Charge three alleges that the respondent engaged in conduct adversely reflecting on her fitness to practice law by converting funds and/or capturing a legal fee from funds entrusted to her as a fiduciary, in violation of Code of Professional Responsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]).

On or about August 1, 2006, the respondent received a deposit of $10,000 on behalf of her clients, the Forbes, relevant to the sale of real property. The respondent disbursed $7,962.50 by check payable to herself on or about August 17, 2006. She made a further disbursement of $3,057.50 payable to herself on or about January 29, 2007, of which $2,037.50 constituted legal fees relevant to the Forbes matter. At the time she made these disbursements, the respondent did not have the Forbes’ authorization to do so.

[304]*304Charge four alleges that the respondent failed to render an appropriate accounting of funds held in escrow, in violation of Code of Professional Responsibility DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]).

The respondent represented Ronald, Lindy, and Ivor Forbes in the sale of real property. Ronald Forbes sent a letter, certified return receipt requested, in or about May 2007 requesting an accounting of funds being held in the respondent’s attorney escrow account. The respondent acknowledged receipt of the letter on or about June 9, 2007, but failed to provide the requested accounting.

Charge five alleges that the respondent engaged in conduct prejudicial to the administration of justice and/or adversely reflecting on her fitness as a lawyer by failing to cooperate with the lawful demands of the Grievance Committee, in violation of Code of Professional Responsibility DR 1-102 (a) (5) and (7) (22 NYCRR 1200.3 [a] [5], [7]).

By letter dated June 17, 2007, the Grievance Committee advised the respondent that she was the subject of a sua sponte complaint based upon her failure bo file her biennial registration statement with the Office of Court Administration (hereinafter OCA). The letter directed the respondent to file an answer, within 10 days of her receipt of the letter, explaining her failure to reregister with OCA and demanded that the respondent submit proof of registration to the Grievance Committee within 60 days.

By letter dated June 17, 2007, the Grievance Committee advised the respondent that the complaint of Ronald Forbes was opened and requested that the respondent file an answer within 10 days. Both letters advised the respondent that an unexcused failure to submit an answer constituted professional misconduct independent of the merits of the complaint. The respondent failed to submit an answer to either complaint within 10 days.

The Grievance Committee then sent two certified letters to the respondent dated August 1, 2007, advising her that she failed to submit answers and directing her to do so within 10 days. By letter dated August 3, 2007, the respondent advised the Grievance Committee that her father had passed away and that she would respond to the complaints no later than late September 2007. By letter dated August 9, 2007, the Grievance Committee advised the respondent that her time to answer was extended until September 17, 2007. The Grievance Committee further directed the respondent to submit her complete file in [305]*305the Forbes matter and reminded her that failure to comply would result in the issuance of subpoenas. The respondent still failed to submit answers.

By facsimile dated September 18, 2007, the respondent advised the Grievance Committee that her son had been ill and that she would comply with the Grievance Committee’s requests by September 20, 2007. She failed to do so.

The respondent appeared before the Grievance Committee on October 11, 2007 to give sworn testimony regarding the sua sponte complaint and the Forbes complaint. At that time, she submitted an answer to the Forbes complaint.

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Cite This Page — Counsel Stack

Bluebook (online)
76 A.D.2d 301, 906 N.Y.S.2d 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cox-nyappdiv-2010.