Opinion
2011-10-27
In the Matter of Richard P. WEINHEIMER, II, an Attorney.Committee on Professional Standards, Petitioner;Richard P. Weinheimer, II, Respondent.
Peter M. Torncello, Committee on Professional Standards, Albany, for petitioner.Richard E. Grayson, White Plains, for respondent.
Peter M. Torncello, Committee on Professional Standards, Albany, for petitioner.Richard E. Grayson, White Plains, for respondent.
PER CURIAM.
Respondent was admitted to practice by this Court in 1991. He maintains an office for the practice of law in the Village of Fort Plain, Montgomery County.
Petitioner charges respondent with having converted funds on behalf of a client. The matter was referred to a Referee for a hearing and report ( see 22 NYCRR 806.5). We confirm the Referee's report insofar as it did not sustain the charge of conversion in violation of former Code of Professional Responsibility DR 1–102(a)(4) and DR 9–102(c)(4) (22 NYCRR 1200.3[a][4]; 1200.46[c][4] ) and Rules of Professional Conduct (22 NYCRR 1200.0) rules 8.4(c) and 1.15(c), because we agree with the Referee that respondent's misconduct was not motivated by larcenous intent ( see e.g. Matter of Newbould, 277 A.D.2d 697, 716 N.Y.S.2d 126 [2000] ). We disaffirm the report insofar as it did not sustain the charge that respondent converted client funds in violation of former Code of Professional Responsibility DR 1–102(a)(5) and (7) (22 NYCRR 1200.3[a][5], [7] ) and Rules of Professional Conduct ( 22 NYCRR 1200.0) rule 8.4(d) and (h). A charge of conversion is sustainable when the balance of an escrow account falls below the amount an attorney is required to maintain in the account on behalf of his or her client, as specified in the instant petition ( see e.g. Matter of Swyer, 143 A.D.2d 462, 532 N.Y.S.2d 936 [1988] ), even when the conversion is due to inadvertence or mismanagement of the funds rather than venal intent ( see
The alleged professional misconduct occurred prior to and after April 1, 2009, the effective date of the Rules of Professional Conduct.
Matter of Joseph, 223 A.D.2d 999, 637 N.Y.S.2d 490 [1996] ). We grant and deny the motions to confirm and disaffirm the Referee's report in accordance with the above.
Given the mitigating circumstances presented, we conclude that the appropriate disciplinary sanction is a suspension from the practice of law for a period of one year, effective immediately and until further order of this Court, which suspension is stayed upon condition that respondent submit to petitioner quarterly reports by a certified public accountant confirming that he is maintaining his escrow accounts and preserving client funds in accordance with applicable provisions of the attorney disciplinary rules ( see Rules of Professional Conduct [22 NYCRR 1200.0] ). The first quarterly report shall be submitted within three months of the date of this decision. Any substantial failure to meet this condition shall be reported by petitioner to this Court. After expiration of the one-year suspension period, respondent may apply to this Court for termination thereof. Such application shall be supported by documentation that respondent took and passed the Multistate Professional Responsibility Examination within the suspension period. Any application to terminate the suspension shall be served upon petitioner, which may be heard thereon ( see e.g. Matter of Newbould, 277 A.D.2d at 699, 716 N.Y.S.2d 126; Matter of Joseph, 223 A.D.2d at 1000, 637 N.Y.S.2d 490; Matter of Miller, 210 A.D.2d 869, 870, 621 N.Y.S.2d 151 [1994] ).
ORDERED that respondent is found guilty of the professional misconduct as charged and specified in the petition, except insofar as the charge alleges a violation of former Code of Professional Responsibility DR 1–102(a)(4) and DR 9–102(c) (22 NYCRR 1200.3[a][4]; 1200.46[c] ) and Rules of Professional Conduct (22 NYCRR 1200.0) rules 8.4(c) and 1.15(c); and it is further
ORDERED that respondent is suspended from the practice of law for a period of one year, effective immediately, and until further order of this Court, which suspension is stayed upon the terms and condition set forth in this Court's decision.
MERCURE, J.P., LAHTINEN, MALONE, JR., KAVANAGH and STEIN, JJ., concur.