In re McCann

276 A.D.2d 813, 714 N.Y.S.2d 247, 2000 N.Y. App. Div. LEXIS 10114

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2000
• Status: Published

Opinion

Per Curiam.

Respondent was admitted to practice by this Court in 1985 and maintains an office for the practice of law in the Village of Malone, Franklin County.

We grant the motion by petitioner to confirm a Referee’s report which found respondent guilty of five charges of professional misconduct. Most seriously, the evidence establishes that over a period of several years, respondent converted substantial client funds from his escrow account for personal and professional purposes, in violation of this Court’s attorney disciplinary rules (see, Code of Professional Responsibility DR 1-102 [a] [4], [5], [7]; DR 9-102 [22 NYCRR 1200.3 (a) (4), (5), (7); 1200.46]). In addition, respondent failed to notify a client of his receipt of funds and failed to promptly remit funds to the client (see, DR 9-102 [c] [22 NYCRR 1200.46 (c)]), improperly permitted a nonattorney to sign checks drawn on his escrow account (see, DR 9-102 [e] [22 NYCRR 1200.46 (e)]), maintained an escrow account with an improper title (see, DR 9-102 [b] [22 NYCRR 1200.46 (b)]), and failed to maintain adequate records concerning deposits and withdrawals in and from his escrow account (see, DR 9-102 [d] [22 NYCRR 1200.46 (d)]). The Referee rejected a charge that respondent had attempted to mislead and deceive petitioner.

Although respondent’s use of client funds was inexcusable, and constitutes serious misconduct, we acknowledge certain mitigating circumstances found by the Referee. Respondent voluntarily corrected all escrow account shortages in 1999, has fully cooperated with investigations by the local bar association and by petitioner, and has instituted new recordkeeping procedures. He also has an unblemished public disciplinary record.

Under the circumstances presented, we conclude that respondent should be suspended from practice for a period of 18 months.

Peters, J. P., Spain, Carpinello, Graffeo, and Lahtinen, JJ., concur. Ordered that petitioner’s motion to confirm the Referee’s report is granted; and it is further ordered that respondent is found guilty of the professional misconduct charged and specified in charges I, II, III, V, and VI of the petition; and it is further ordered that respondent is suspended from the practice of law for a period of 18 months, effective 20 days from the date of this decision, and until further order of this Court; and it is further ordered that respondent, for the period of his suspension, is commanded to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another; and he is forbidden to appear as an attorney or counselor-at-law before any court, Judge, Justice, board, commission or other public authority or to give to another an opinion as to the law or its application or any advice in relation thereto; and it is further ordered that respondent shall comply with the provisions of this Court’s rules (see, 22 NYCRR 806.9) regulating the conduct of suspended attorneys.