In re Toscano

17 A.D.3d 72, 793 N.Y.S.2d 106
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 11, 2005
StatusPublished
Cited by1 cases

This text of 17 A.D.3d 72 (In re Toscano) 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 Toscano, 17 A.D.3d 72, 793 N.Y.S.2d 106 (N.Y. Ct. App. 2005).

Opinion

OPINION OF THE COURT

Per Curiam.

The Grievance Committee for the Second and Eleventh Judicial Districts (hereinafter the petitioner) served the respondent with a petition dated June 24, 2003, containing seven charges of professional misconduct. After a prehearing conference on October 15, 2003, and a hearing on January 12, 2004, at which the respondent appeared pro se, the Special Referee sustained all seven charges. The petitioner now moves to confirm the Special Referee’s report and to impose such discipline upon the respondent as the Court deems appropriate. The respondent has neither cross-moved, submitted any response, nor requested additional time in which to do so. According to the report of the Special Referee, the respondent cannot be located since the hearings were held.

Charge One alleges that the respondent converted funds entrusted to him as fiduciary, in violation of Code of Professional Responsibility DR 9-102 (a) (22 NYCRR 1200.46 [a]) and DR 1-102 (a) (4) and (7) (22 NYCRR 1200.3 [a] [4], [7]).

Between approximately September 2001 and May 2002, the respondent maintained an IOLA account at Citibank, entitled “Andrew Toscano, Esq., Attorney Trust—IOLA,” into which he deposited funds entrusted to him as fiduciary, incident to his practice of law. On or about September 21, 2001, he received $5,500 in settlement funds on behalf of client Susan Riley in connection with a personal injury matter.

Between September 21, 2001, and October 19, 2001, the respondent was required to maintain at least $3,600 on deposit in his IOLA account on behalf of Ms. Riley. The account was depleted to $2,049.50 on October 9, 2001.

Charge Two alleges that the respondent converted funds entrusted to him as a fiduciary, incident to his practice of law, in violation of Code of Professional Responsibility DR 9-102 (a) (22 NYCRR 1200.46 [a]) and DR 1-102 (a) (4) and (7) (22 NYCRR 1200.3 [a] [4], [7]).

[74]*74On or about November 6, 2001, the respondent received settlement funds on behalf of client Charnette Banks in connection with a personal injury matter. Between November 6, 2001, and December 18, 2001, he was required to maintain at least $5,766.05 on deposit in his IOLA account on behalf of Ms. Banks. The account was depleted to $18.30 on November 29, 2001.

Charge Three alleges that the respondent improperly withdrew cash from his IOLA account, in violation of Code of Professional Responsibility DR 9-102 (e) (22 NYCRR 1200.46 [e]) and DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]).

Between September 24, 2001, and February 19, 2002, the respondent made approximately 76 cash withdrawals from his IOLA account.

Charge Four alleges that the respondent failed to maintain required bookkeeping records, in violation of Code of Professional Responsibility DR 9-102 (d) (22 NYCRR 1200.46 [d]) and DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]).

Between September 2001 and May 2002, the respondent failed to maintain a ledger book or similar record of deposits into and withdrawals from his IOLA account.

Charge Five alleges that the respondent failed to maintain and/or produce required bookkeeping records, in violation of Code of Professional Responsibility DR 9-102 (d) and (i) (22 NYCRR 1200.46 [d], [i]) and DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]).

Between September 2001 and May 2002, the respondent failed to maintain all checkbooks, check stubs, bank statements, prenumbered cancelled checks, and duplicate deposit slips with respect to his IOLA account. Between approximately July 3, 2002, and January 3, 2003, the respondent failed to produce the aforesaid bookkeeping records as directed by the petitioner.

Charge Six alleges that the respondent failed to properly maintain his attorney registration, in violation of Code of Professional Responsibility DR 1-102 (a) (5) and (7) (22 NYCRR 1200.3 [a] [5], [7]), Rules of the Chief Administrator of the Courts (22 NYCRR) § 118.1 (b) and Judiciary Law § 468-a (1) and (2).

As an attorney admitted to practice since approximately 1994, the respondent was required to file a registration statement with the Office of Court Administration (hereinafter OCA) on a biennial basis and to pay a registration fee. From 2000 through the present, he has failed to reregister as an attorney with OCA.

[75]*75Charge Seven alleges that the respondent failed to cooperate with the petitioner, in violation of Code of Professional Responsibility DR 1-102 (a) (5) and (7) (22 NYCRR 1200.3 [a] [5], [7]) and 22 NYCRR 691.4.

On August 5, 2002, the petitioner forwarded to the respondent a copy of the complaint of Harvey Friedman, Esq. and requested his answer within 10 days. No answer was received. On August 27, 2002, the petitioner forwarded additional letters by certified and regular mail, directing the respondent to submit an answer within 10 days, and on August 29, 2002, the respondent was personally given a copy of the complaint at the petitioner’s offices.

Although the respondent was repeatedly directed to submit an answer within 10 days, no answer was received until November 14, 2002, after an investigation was commenced into the respondent’s alleged failure to cooperate. At the disciplinary hearing conducted on January 12, 2004, the respondent admitted to the allegations of all of the charges.

On August 5, 2002, the petitioner forwarded to the respondent a sua sponte inquiry concerning his failure to reregister as an attorney with OCA. The respondent failed to comply with the petitioner’s directive to register forthwith and to submit proof of compliance within 30 days. On September 24, 2002, the petitioner forwarded additional letters to the respondent via certified and regular mail. He failed to comply with the directive that he reregister and provide proof of compliance within 10 days.

In view of the respondent’s admissions and the evidence adduced, the Special Referee properly sustained all seven charges, and the motion to confirm the Special Referee’s report is granted.

In determining an appropriate measure of discipline to impose, the petitioner notes that the respondent was issued a letter of caution on November 20, 2002, for neglecting a legal matter entrusted to him, and an admonition also dated November 20, 2002, for failing to cooperate with the petitioner. The respondent advanced in mitigation his testimony regarding his mental illness and his drug and alcohol addiction. Although the respondent allegedly commenced a rehabilitation program in or about November 2003 and testified at the disciplinary hearing that he attends meetings regularly, he failed to substantiate those claims. No corroborating evidence of the respondent’s progress was offered. Given the nominal length [76]*76and extent of treatment, evidence of progress is limited, at best. While the respondent may be well-intentioned in his efforts to overcome his long-standing addiction to drugs and alcohol, there is an absence of evidence to establish that he can necessarily sustain a long-term drug and/or alcohol-free lifestyle.

In Matter of Butler (285 AD2d 344 [2001]), the respondent was disbarred based on eight charges of professional misconduct, including escrow violations and failure to maintain proper records, notwithstanding evidence that his long history of severe cocaine dependence was in remission.

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Related

Matter of Toscano
187 N.Y.S.3d 820 (Appellate Division of the Supreme Court of New York, 2023)

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Bluebook (online)
17 A.D.3d 72, 793 N.Y.S.2d 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-toscano-nyappdiv-2005.