Opinion
October 4, 1999
Grace D. Moran, Syosset, N.Y. (Robert P. Guido of counsel), for petitioner.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, SONDRA MILLER, CORNELIUS J. O'BRIEN, DAVID S. RITTER, JJ.
OPINION ORDER
DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the practice of law at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 9, 1983. By decision and order on motion of this court dated February 25, 1997, the respondent was suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i), unless within 20 days he appeared at the petitioner's offices to give testimony and produce certain requested documents. By decision and order of this court dated May 2, 1997, the respondent was suspended from the practice of law upon his failure to cooperate with the Grievance Committee's investigation of seven complaints and his failure to avail himself of the additional opportunity to cooperate afforded him by the order dated February 25, 1997, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against him, and the issues raised in the proceeding were referred to Alfred Besunder, Esq., as Special Referee to hear and report. By decision and order on motion of this court dated October 21, 1998, Thomas J. Spellman, Jr., was granted leave to withdraw as attorney for the respondent. The petitioner now moves to confirm the report of the referee, which sustained all of the charges in the petition.
The Grievance Committee served the respondent with a petition dated April 3, 1997, containing 18 charges of professional misconduct against him. After hearings conducted on May 7, June 4, July 1, August 21, and September 19, 1997, and February 27, March 20, July 14, and November 25, 1998, the Special Referee sustained all 18 charges. The Grievance Committee now moves to confirm the findings of the Special Referee and to impose such discipline as the court deems just and proper. The respondent has neither cross-moved for any relief, nor submitted any papers in response to the motion.
The petition contains 18 charges, arising from seven separate complaints against the respondent, alleging that he: neglected his duties and obligations on behalf of various clients in violation of Code of Professional Responsibility DR 6-101(A)(3) ( 22 NYCRR 1200.30 [a][3]); failed to act competently in his representation of a client in violation of Code of Professional Responsibility DR 6-101(A)(1) ( 22 NYCRR 1200.30[a][1]); failed to cooperate with the Grievance Committee's investigation, in violation of Code of Professional Responsibility DR 1-102(A)(5), and (7) (former [8]) ( 22 NYCRR 1200.30[a][5], [7] [former (8)]); entered into an impermissible non-refundable fee agreement in violation of Code of Professional Responsibility DR 2-106(C)(3) ( 22 NYCRR 1200.11 [c][3]); made false statements to one client and in the course of representing another client, in violation of Code of Professional Responsibility DR 7-102(A)(5) ( 22 NYCRR 1200.33 [a][5]); failed to promptly refund a fee paid in advance which had not been earned, in violation of Code of Professional Responsibility DR 2-110(A)(3) ( 22 NYCRR 1200.15[a][8]); failed to file a retainer statement with the Office of Court Administration in violation of 22 NYCRR 691.20(a); and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Code of Professional Responsibility DR 1-102(A)(4) ( 22 NYCRR 1200.3[a][4]).
The testimony and exhibits produced by the petitioner amply support all of the allegations of misconduct. Accordingly, the motion to confirm the Special Referee's report sustaining all of the charges is granted.
Although the respondent has no prior disciplinary history, he has submitted no mitigating evidence with respect to the many charges of professional misconduct against him. He offered no witnesses, did not testify in his own defense, and failed to appear on several scheduled hearing dates. His conduct led to a motion by his counsel to withdraw. He did not submit a post-hearing memorandum, and has not responded to the instant motion to confirm. In view of the utter disregard for the disciplinary process which the respondent has exhibited, he is disbarred.
MANGANO, P.J., BRACKEN, S. MILLER, O'BRIEN and RITTER, JJ., concur.
ORDERED that the motion to confirm the Special Referee's report is granted; and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Mark J. Morgenstern, is disbarred and his name is stricken from the roll of attorneys and counselors at law; and it is further,
ORDERED that the respondent shall continue to comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see, 22 NYCRR 691.10); and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, Mark J. Morgenstern is commanded to continue to desist and refrain from (l) practicing law in any form, either as principal or as agent, clerk, or employee of another in the State of New York, (2) appearing as an attorney or counselor at law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor at law.