In re Gunderson

75 A.D.2d 706, 427 N.Y.S.2d 307, 1980 N.Y. App. Div. LEXIS 11177

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1980
• Status: Published

Opinion

Respondent was admitted to the Bar by this court on August 1, 1973. In this proceeding to discipline him for professional misconduct, petitioner moves to confirm in part and to disaffirm in part the report of the Judge to whom the issues were referred. Respondent cross-moves to confirm the findings favorable to him and to disaffirm those which are unfavorable. Preliminarily, we note that the Hearing Judge ruled that petitioner is required to establish a. charge of professional misconduct by "clear and convincing” evidence. We take this occasion to reiterate that the questions involved in a disciplinary proceeding are to be determined upon a fair preponderance of the evidence and the reasonable inferences to be drawn therefrom (see Matter of Feola, 37 AD2d 789). The petition contains three charges of professional misconduct. After carefully reviewing the evidence, we conclude that the record supports the findings and conclusion of the Hearing Judge that respondent attempted to steal a pewter porringer from a museum in New Haven, Connecticut, as alleged in Charge No. 1. Accordingly, petitioner’s motion to confirm the report of the Hearing Judge, insofar as it sustained Charge No. 1, is granted and respondent is suspended forthwith from the practice of law pending the further order of this court. As to Charges Nos. 2 and 3, we are of the opinion that they should be remitted to the Hearing Judge for the taking of such further evidence as may be presented by the parties, with the Hearing Judge to thereafter report thereon. Respondent suspended from practice as an attorney and counselor at law until the further order of the court and Charges Nos. 2 and 3 remitted to the Hearing Judge for further proceedings not inconsistent herewith. Mahoney, P. J., Greenblott, Kane, Staley, Jr., and Mikoll, JJ., concur.