Opinion
June 10, 1999
DISCIPLINARY PROCEEDINGS instituted by the Departmental Disciplinary Committee for the First Judicial Department.
Sherry K. Cohen of counsel ( Thomas J. Cahill, attorney), for petitioner.
Regina M. Tate, respondent pro se.
OPINION OF THE COURT
Respondent, Regina M. Tate, was admitted to the practice of law in the State of New York by the Second Judicial Department on December 11, 1991 as Regina Marquita Tate. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.
By an order entered September 25, 1997 ( 233 A.D.2d 53), this Court suspended respondent pursuant to 22 NYCRR 603.4 (e) (1) (i) and (iii) until farther order of the Court based upon her willful failure to cooperate with the Departmental Disciplinary Committee (the Committee) in its investigation of allegations of professional misconduct and other uncontroverted evidence of professional misconduct.
On July 2, 1998, the Committee served respondent with a notice and statement of charges containing 27 charges regarding: (a) conversion of third-party funds held in respondent's IOLA account (Charges One and Two); (b) improper loan transaction with a client (Charges Three and Four); (c) failure to comply with court-ordered discovery deadlines and other orders of the court as reflected in two Federal court decisions (Charges Five and Six, Seven); (d) neglect of numerous clients' legal matters (Charges. Eight, Eleven, Twelve, Sixteen, Nineteen, Twenty-Two and Twenty-Four); (e) failure to promptly deliver property in her possession which clients were entitled to receive (Charges Nine, Seventeen, Twenty-Three and Twenty-Five); (f) failure to return an unearned fee in two client matters (Charges Fifteen and Twenty-One); (g) use of impermissible nonrefundable retainer agreements in five client matters (Charges Ten, Thirteen, Fourteen, Eighteen and Twenty); (h) conduct involving dishonesty, fraud, deceit or misrepresentation (Charge Twenty-Six); and (i) conduct which adversely reflects on her fitness to practice law (Charge Twenty-Seven).
Committee staff and respondent entered into a prehearing stipulation dated November 16, 1998 whereby respondent stipulated, among other things, that she had engaged in the violations of the disciplinary rules set forth in Charges One, Two, Three (as modified), Four, Eight (as modified) Nine, Fifteen, Sixteen, Seventeen, Nineteen, Twenty-Two, Twenty-Three, Twenty-Four (as modified), Twenty-Five and Twenty-Seven. Charges Five, Six and Seven (involving the collateral estoppel effect of two Federal court decisions), and Ten, Fourteen, Eighteen and Twenty (involving respondent's use of nonrefundable retainer agreements) were disputed. The Committee withdrew Charges Eleven, Twelve, Thirteen, Twenty-One and Twenty-Six.
A hearing was conducted before the Referee on November 19, 1998. By a report and recommendation dated January 13, 1999, the Referee made findings of facts and conclusions of law with respect to the charges. The Referee relied on the prehearing stipulation and the Committee's exhibits with respect to the following charges, which were sustained: Charges One, Two, Three (as modified), Four, Eight (as modified), Nine, Fifteen, Sixteen, Seventeen, Nineteen, Twenty-Two, Twenty-Three, Twenty-Four (as modified), Twenty-Five and Twenty-Seven. Charges Five and Six were sustained based upon the Referee's determination that collateral estoppel applied to the opinion and order of the Honorable Denise Cote, United States District Court Judge for the Southern District of New York in Martin v. Manufacturers Hanover Trust (1996 US Dist LEXIS 15568, 1996 WL 603937 [Oct. 22, 1996, 94 Civ 6183]). Charge Seven was sustained based upon the Referee's determination that collateral estoppel applied to the memorandum and order of the Honorable John Gleeson, United States District Court Judge for the Eastern District of New York in Tubner v. West (1996 WL 1057149 [Dec. 17, 1996, 96 Civ 0004]). Charges Ten, Fourteen, Eighteen and Twenty, all charging respondent with entering into an agreement for an illegal or excessive fee, were sustained based upon respondent's admission to using nonrefundable retainer agreements in the prehearing stipulation and Matter of Cooperman ( 83 N.Y.2d 465). Thus, in total, the Referee sustained 22 charges against respondent.
The Referee determined that based solely upon respondent's intentional conversion of third-party funds, disbarment was warranted, but respondent's additional misconduct militated in favor of disbarment irrespective of any possible mitigating circumstances. This misconduct included her pattern of neglect of numerous clients' cases, her repeated failures to comply with Court-imposed discovery and other deadlines, an improper loan transaction with her client and the use of nonrefundable retainer agreements.
After hearing oral argument and receiving further written submissions, by a determination dated March 1, 1999, the Hearing Panel confirmed the Referee's report and recommendation except with respect to Charges Ten, Fourteen, Eighteen and Twenty (the charges based upon respondent's use of nonrefundable retainer agreements), which the Panel recommended should be dismissed. In finding that respondent's fee arrangement did not contain an impermissible nonrefundable retainer, the Hearing Panel found that what was characterized in the agreement as a "non-refundable retainer" actually constituted an initial fee payment for "availability" that was "earned when paid" which is permissible under Matter of Cooperman ( supra; see, Levisohn, Lerner, Berger Langsam v. Medical Taping Sys., 20 F. Supp.2d 645 [SD N Y 1998]).
The Committee now moves for an order, pursuant to 22 NYCRR 603.4 (d), confirming the findings of fact and conclusions of law set forth in the Panel's determination, and imposing the sanction of disbarment.
In confirming the Panel's findings of fact and conclusions of law, we find that the sanction of disbarment is fully justified in this case. This is true not only because it is our policy to consistently impose disbarment upon attorneys who have intentionally converted client funds ( see, e.g., Matter of Mulrow, 241 A.D.2d 7, 12), but also because respondent's additional misconduct, her neglect of clients and their cases and her contumacious disregard of judicial authority, further demonstrates her unfitness to practice law. The claims she offers in mitigation — that she is the victim here due to her efforts to maintain a financially viable law practice and her personal problems resulting from the deaths of family members — are not sympathetic under the circumstances, and do not justify her misconduct.
Accordingly, the petition to confirm the Hearing Panel's report and recommendation should be granted, respondent should be disbarred, and her name stricken from the roll of attorneys and counselors-at-law.
SULLIVAN, J. P., NARDELLI, WILLIAMS, TOM and BUCKLEY, JJ., concur.
Petition granted, the determination of the Hearing Panel confirmed, respondent disbarred from practice as an attorney and counselor-at-law in the State of New York, and the name of respondent stricken from the roll of attorneys and counselors-at-law in the State of New York, all effective immediately.