Opinion
November 27, 1967
In this proceeding to discipline an attorney, petitioner moves (1) to confirm the report of the Justice of the Supreme Court to whom the matter had been referred for hearing and report and (2) to direct respondent to return certain stenographic minutes to a former client. Respondent did not answer the petition and, although he appeared and testified at the hearing, he has also not submitted any papers in opposition to the present motion. He was admitted to the Bar by this court on December 17, 1947. The petition sets forth two similar charges against respondent, in effect, abandoning the interests of separate clients who were defendants in two criminal actions, converting the fees he had received to represent the clients and failing to return to one of the clients a transcript of the stenographic minutes of his sentencing. In the first charge it is stated that respondent was retained to prosecute an appeal from his client's conviction of assault in the third degree, received a $350 fee therefor and did nothing except to file a notice of appeal (dated July 7, 1966). It is also there alleged that respondent failed to answer any letters or telephone calls by the client and his family and by petitioner's Committee on Grievances; that charge is the one which also involves the failure to return the minutes. In the second charge it is stated that respondent was retained to defend two clients who had been charged with possession of narcotics, received $750 as a fee in January 1967, obtained two adjournments of the case and then "disappeared". The reporting Justice has found both charges sustained, except that he found that the $350 fee may have been given to respondent for three other cases in which he was representing the client involved in the first charge. More specifically as to that charge, the Justice found that respondent was guilty in not performing the services for which he had been retained, in not seeking to be relieved by judicial order from doing so and in failing to respond to the Grievance Committee's communication to him. In addition, the Justice found respondent remiss in that he failed to present himself before this court as directed in the order to show cause upon which this proceeding was initiated and failed to answer the petition; and further found that respondent's physical and mental condition is such that he cannot engage in the general practice of the law, particularly in trial work. The findings of the reporting Justice are clearly sustained by the evidence. Accordingly, the motion is granted insofar as it is to confirm the report. The motion is otherwise denied. The misconduct alleged in the petition and of which respondent has been found guilty is such as to warrant more severe disciplinary action than is directed herewith. However, we have taken into account the nature of respondent's physical and mental condition, the fact that that condition contributed to or caused the misconduct and that at some time in the future respondent might be able to overcome his infirmity and to rehabilitate himself. Therefore, we limit our disciplinary action to suspending him from the practice of law for five years, commencing December 15, 1967. Beldock, P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.