In re Losner

217 A.D.2d 376, 636 N.Y.S.2d 804, 1995 N.Y. App. Div. LEXIS 13980
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 29, 1995
StatusPublished
Cited by1 cases

This text of 217 A.D.2d 376 (In re Losner) 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 Losner, 217 A.D.2d 376, 636 N.Y.S.2d 804, 1995 N.Y. App. Div. LEXIS 13980 (N.Y. Ct. App. 1995).

Opinion

OPINION OF THE COURT

Per Curiam.

In this proceeding, the respondent was charged with 28 allegations of professional misconduct. Charges Fifteen through [377]*377Seventeen were withdrawn by the petitioner during the disciplinary proceeding. The Special Referee sustained 21 charges and failed to sustain charges One, Four, Eight, and Nine. The petitioner moves to confirm the Special Referee’s report by sustaining the 21 charges that were sustained by the Special Referee and imposing such discipline as this Court deems appropriate. The respondent cross-moves to disaffirm the Special Referee’s report and to dismiss the 21 charges that were sustained by the Special Referee or, in the alternative, to remit the matter to another Special Referee for a new hearing.

Charge Two alleges that the respondent engaged in conduct involving dishonesty and misrepresentation. In or about 1991, the respondent agreed to represent clients in their purchase of a home. The respondent was aware that his clients were relying upon Thomas A. Neely, Jr., a credit specialist and mortgage broker, to arrange the financing for the purchase. They entered into a contract of sale to purchase that property in or about November 1991. Pursuant to the contract of sale, the clients made a down payment of $7,850, which the respondent forwarded to the seller’s attorney to be held in escrow.

According to the contract, the down payment would be refunded if good-faith efforts to obtain a mortgage commitment were unsuccessful. In the absence of such efforts, the down payment would be forfeited to the seller. Neely failed to obtain a mortgage commitment. The seller’s attorney thereafter notified the respondent that, due to the clients’ failure to obtain a mortgage commitment, the down payment would be released to the seller unless the clients could document good-faith efforts to obtain a mortgage commitment. The respondent failed to obtain the necessary documentation from Neely. The respondent misrepresented to the clients that their down payment was being released to the seller without any legal basis when, in fact, he knew the reason for the release. In or about July 1992, the seller’s attorney released the down payment to his client due to the respondent’s failure to document a good-faith attempt to obtain a mortgage commitment.

By reason of the foregoing, the respondent violated Code of Professional Responsibility DR 1-102 (A) (4) and (8) (22 NYCRR 1200.3 [a] [4], [8]).

Charge Three alleges that the respondent engaged in conduct involving dishonesty and misrepresentation in that, throughout his representation of the aforementioned clients, he failed to [378]*378disclose to them that Neely and his business entities were the subject of an investigation by the New York State Banking Department that was based upon allegations of fraudulent activities. Moreover, the respondent led the clients to believe that a mortgage commitment had been arranged or was imminent when, in fact, no such arrangement had been made.

By reason of the foregoing, the respondent violated Code of Professional Responsibility DR 1-102 (A) (4) and (8) (22 NYCRR 1200.3 [a] [4], [8]).

Charge Five alleges that the respondent improperly entered into a business transaction with a client. In or about March 1989, a client met with the respondent for the purpose of obtaining legal advice and assistance concerning investments that he was considering. The respondent had previously represented this client in similar transactions. During their March 1989 meeting, the respondent solicited and obtained from the client a personal loan in the sum of $20,000. In return for the loan, the respondent drafted and gave to the client a promissory note for $22,000, to be paid on April 19, 1989. Interest at the rate of 17% per annum would thereafter be charged on any unpaid balance. The respondent failed to disclose to the client that, as lender and borrower, they had differing interests and that the client should not expect the respondent to exercise his professional judgment for the client’s protection. The respondent failed to repay the loan, notwithstanding numerous demands to do so by the client.

By reason of the foregoing, the respondent violated Code of Professional Responsibility DR 5-104 (A) and DR 1-102 (A) (8) (22 NYCRR 1200.23 [a]; 1200.3 [a] [8]).

Charge Six alleges that the respondent improperly communicated with parties that he knew were represented by counsel. On July 6, 1988, the respondent entered into a contract to purchase a home. The title closing was scheduled for August 1988. The sellers were represented by Geoffrey Long, Esq.

On July 8, 1988, the respondent, acting without the knowledge or consent of the sellers’ attorney, induced the sellers to deed their property to him, depriving them of the safeguards customarily afforded sellers of real property. The respondent used the deed to obtain a refinancing loan from Greenpoint Savings Bank. The sellers’ interests remained unprotected until the title closing, which occurred on or about August 1, 1988.

[379]*379By reason of the foregoing, the respondent violated Code of Professional Responsibility DR 7-104 (A) (1) and DR 1-102 (A) (8) (22 NYCRR 1200.35 [a] [1]; 1200.3 [a] [8]).

Charge Seven alleges that the respondent engaged in conduct adversely reflecting upon his fitness to practice law. In or about May 1991, the respondent rented property that he owned in Boca Raton, Florida, to an individual at a monthly rental of $850. The rental was arranged through Safe Rentals, a Boca Raton agency, acting on the respondent’s behalf. Pursuant to the terms of the rental agreement, the lessee made a security deposit and an advance payment of rent totalling $2,550. Florida law required the respondent to either hold the funds in a separate Florida bank account or to post a surety bond and provide the lessee with written notice of the manner in which the funds were being safeguarded. The respondent failed to respond to several requests by the lessee for the written notice to which he was entitled and failed to safeguard the funds as required by law. Prior to the expiration of his lease, the lessee was evicted from the premises when a judgment of foreclosure was entered against the respondent due to the respondent’s failure to make mortgage payments. The respondent failed to return the lessee’s deposit despite frequent demands to do so.

By reason of the foregoing, the respondent violated Code of Professional Responsibility DR 1-102 (A) (8) (22 NYCRR 1200.3 [a] [8]).

Charge Ten alleges that the respondent engaged in an improper conflict of interest in connection with his representation of a couple in bankruptcy proceedings. In or about July 1990, these clients consulted with the respondent about financial difficulties they were experiencing, both personally and with their business. The respondent guaranteed to arrange the financing needed to pay off their creditors and introduced the clients to Thomas A. Neely, Jr., a mortgage broker, who was to arrange the long-term financing they needed. In return for his services, the respondent requested a fee of $12,500 to be paid in advance. To pay the respondent’s fee, the wife gave Neely a $12,500 mortgage on the clients’ residence.

On or about July 17, 1990, the respondent had the clients sign several documents that he had prepared. These included the bankruptcy petition and the mortgage documents.

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Cite This Page — Counsel Stack

Bluebook (online)
217 A.D.2d 376, 636 N.Y.S.2d 804, 1995 N.Y. App. Div. LEXIS 13980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-losner-nyappdiv-1995.