Opinion
July 10, 1967
Proceeding to discipline respondent, an attorney, for professional misconduct. Pursuant to an order of reference, dated March 13, 1967, a Justice of the Supreme Court has heard the issues and has submitted his report, dated June 1, 1967, to this court. Petitioner now moves to confirm the report and to impose discipline upon respondent. The charges against respondent were set forth in nine specifications (A to I, inclusive) of the petition. Under Specification A, it was charged in the petition, and admitted by respondent in his answer, that respondent received the sum of $3,800 in settlement of his client's negligence claim and that he failed to use any part thereof toward the payment of the liens of the Department of Hospitals of the City of New York and the Long Island College Hospital, and the claim of the Department of Welfare of the City of New York. After deducting his fee, the respondent retained approximately $2,200, representing his client's share of the settlement proceeds, subject to the liens of the hospitals and of the Department of Welfare. Despite the existence of these liens, which exceeded the client's share of the proceeds, respondent paid the full amount to his client in disregard of his obligation to protect the interests of the lienors. The reporting Justice found that the charges set forth in this specification were sustained insofar as it was claimed that the lienors were unlawfully and unjustly deprived of their share of the settlement proceeds; he further found that the charge that the respondent converted the proceeds of the settlement to his own use was not established by the proof adduced. Specifications B and C, which were admitted by respondent in his answer, were that respondent had failed to pay the liens of hospitals, doctors and the Department of Welfare out of the proceeds of the settlements of two negligence claims and had converted said sums to his own use. The total sum of the amounts so converted was in excess of $1,500. The Justice found that these specifications were sustained by the evidence. Under Specification G, it was charged in the petition, and admitted by respondent in his answer, that during the period from January 1, 1964 to December 31, 1966, respondent had issued 65 checks which were returned for insufficient funds. Specifications H-1, H-2 and H-3, which were admitted by respondent in his answer, were that (1) he had failed to file numerous statements of retainer; (2) he had failed to file numerous closing statements; and (3) he had failed to deposit sums of money received in settlement of contingent fee claims in an account separate from his personal account. In our opinion, the findings as to the above-enumerated specifications are supported by the proof. Accordingly, the motion to confirm is granted. The reporting Justice has found that Specifications D, E, F, H-4 and I were not established. The petitioner has not moved to disaffirm these findings and we are in accord therewith. In view of the seriousness of the nature of respondent's professional misconduct, particularly with respect to the charge of conversion of moneys owed to lienors, we are of the opinion that respondent should be suspended from the practice of law for a period of five years, commencing August 1, 1967. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.