The Appellate Division departments have not limited the application of the statute to residents of adjoining states, but have applied it to nonresident attorneys in general (see e.g. Lichtenstein v. Emerson, 251 A.D.2d 64, 674 N.Y.S.2d 298 [1st Dept.1998] ; Matter of Haas, 237 A.D.2d 729, 654 N.Y.S.2d 479 [3d Dept.1997] ). We accept that interpretation, which is not contested by the parties, for the purposes of this certified question.
The Appellate Division departments have not limited the application of the statute to residents of adjoining states, but have applied it to nonresident attorneys in general (see e.g. Lichtenstein v. Emerson, 251 A.D.2d 64, 674 N.Y.S.2d 298 [1st Dept.1998] ; Matter of Haas, 237 A.D.2d 729, 654 N.Y.S.2d 479 [3d Dept.1997] ). We accept that interpretation, which is not contested by the parties, for the purposes of this certified question.
The Third Department imposes disciplinary sanctions. See Matter of Marin, 250 AD2d 997 (3rd Dept 1998), lv app den 92 NY2d 818 (1999); Matter of Haas, 237 AD2d 729 (3rd Dept 1997). It is undisputed that plaintiff's attorney, her husband Ian Wallach, is a California resident who was admitted to the practice of law in New York in 2000.
"that respondent should be suspended from practice for a period of three years, nunc pro tunc to May 18, 1998, the date of a letter from respondent to petitioner in which he admitted the conversion. Upon any reapplication for reinstatement, respondent shall make the showing required by this Court's rules (see 22 NYCRR 806.12[b]), including the restitution ordered by this Court's decision which censured respondent in 1997 ( Matter of Haas, 237 A.D.2d 729, 654 N.Y.S.2d 479), medical opinion addressing his current capacity to practice law, compliance with the attorney registration requirements ( see Judiciary Law § 468-a; 22 NYCRR part 118), and respondent's past and present status, if any, in the bar of any other state."Id. at 732-33, 770 N.Y.S.2d at 663.
Considering all of the circumstances, we conclude that respondent should be suspended from practice for a period of three years, nunc pro tunc to May 18, 1998, the date of a letter from respondent to petitioner in which he admitted the conversion. Upon any reapplication for reinstatement, respondent shall make the showing required by this Court's rules (see 22 NYCRR 806.12 [b]), including the restitution ordered by this Court's decision which censured respondent in 1997 (Matter ofHaas, 237 A.D.2d 729), medical opinion addressing his current capacity to practice law, compliance with the attorney registration requirements (see Judiciary Law § 468-a; 22 NYCRR part 118), and respondent's past and present status, if any, in the bar of any other state. Mercure, J.P., Spain, Mugglin, Rose and Lahtinen, JJ., concur.
Under the circumstances presented, we conclude that respondent should be censured for his misconduct. We further direct respondent to refund the retainer (minus disbursements) to the client within 90 days of the date of this decision (see e.g.Matter of Haas, 237 A.D.2d 729). We also direct respondent to fully comply with the attorney registration requirements within 30 days (see e.g. Matter of Relyea, 175 A.D.2d 949). Respondent shall submit timely proof of the refund and of his compliance with the attorney registration requirements to petitioner.
As alleged in charge III, respondent filed further papers in contravention of the order on at least three occasions (in violation of Code of Professional Responsibility DR 1-102 [A] [4], [5]; DR 7-102 [A] [1], [2] [ 22 NYCRR 1200.3 (a) (4), (5); 1200.33 (a) (1), (2)]). As alleged in charge IV, respondent appeared as attorney of record in New York State courts although he did not maintain a law office in this State as required by Judiciary Law § 470 (in violation of Code of Professional Responsibility DR 1-102 [A] [5] [ 22 NYCRR 1200.3 (a) (5)]; see, e.g., Matter of Haas, 237 A.D.2d 729). Finally, as alleged in charge VI, respondent has failed to cooperate with petitioner (in violation of Code of Professional Responsibility DR 1-102 [A] [5], [8] [ 22 NYCRR 1200.3 (a) (5), (8)]).
Despite his continued contact with the Pierro Law Group after he moved to another state, the fact remains that Attorney Stein failed to physically maintain an "office for the transaction of law business in New York" within the plain meaning of Judiciary Law § 470. Similar to the facts in Lichtenstein v Emerson ( 251 AD2d at 64), there is no indication that Attorney Stein had a designated telephone number in New York, a New York address at which to receive service of process, or that he had designated the Pierro Law Group to accept telephone calls and service of process on his behalf. ( See also Matter of Haas, 237 AD2d 729, 730.) Notably, respondent's papers do not contain an affidavit from Louis W. Pierro, or any other member of his firm, to establish that Attorney Stein continued to maintain an office with the Pierro Law Group, or maintained an of counsel relationship with that firm or any other professional affiliation.