In re Jennings

75 A.D.2d 676, 426 N.Y.S.2d 862, 1980 N.Y. App. Div. LEXIS 11145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1980
• Status: Published

Opinion

Respondent was admitted to the Bar by this court on June 13, 1962. By decision dated December 10, 1974, he was censured by this court (Matter of Jennings, 46 AD2d 932). In the present disciplinary proceeding, petitioner moves to confirm in part and to disaffirm in part the report of the Judge to whom the issues were referred. Respondent requests that we confirm the findings which are favorable to him and disaffirm those which are unfavorable. The petition contains three charges of professional misconduct. The Hearing Judge sustained two of the charges, finding that respondent used, without authority, moneys of a memorial fund (Charge No. 2) and neglected the prosecution of an appeal in a criminal matter (Charge No. 3). After reviewing the evidence, we conclude that the record supports the findings of the Hearing Judge. Accordingly, petitioner’s motion to confirm the report is granted. In mitigation, we note that the moneys of the memorial fund were subsequently returned by respondent. The Hearing Judge refused to sustain the charge that respondent failed to return an unearned fee to his client (Charge No. 1). We concur. However, we find that after respondent agreed to return a portion of the fee, his delay of approximately 22 months in so doing constitutes misconduct. As for the sanction to be imposed, while we cannot condone respondent’s actions and will deal vigorously with any subsequent dereliction, we have concluded that a severe censure is the appropriate measure of discipline in this matter. Respondent censured. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Main, JJ., concur.