Opinion
September 16, 1985.
Frank A. Finnerty, Jr. ( Grace D. Moran of counsel), for petitioner.
Bernard T. Callan for respondent.
Respondent was admitted to practice by this court on October 16, 1963. In this proceeding to discipline him for professional misconduct, the petitioner moves to confirm the report of the Special Referee and respondent cross-moves to "affirm" that part of the report that recommends dismissal of "charge three" and to limit the imposition of any penalty to censure.
The Special Referee sustained the following charges of misconduct: converting moneys to his own use by accepting $7,000 to be held in escrow, placing said moneys into his escrow account, and allowing the balance of said account to fall below $7,000; on another occasion converting moneys to his own use by accepting $10,000 to be held in escrow, placing said moneys into his escrow account, and allowing the balance to fall below $10,000; and failing to register as an attorney as is required by the Judiciary Law and the Rules of the Chief Administrator of the Courts. Respondent admitted these charges and testified in mitigation thereof.
After reviewing all of the evidence, we are in full agreement with the report of the Special Referee, including his recommendation to dismiss "charge three". Petitioner's motion to confirm the Special Referee's report is granted and the respondent's cross motion is granted to the extent that it seeks to "affirm" the dismissal of "charge three" and is otherwise denied.
In determining an appropriate measure of discipline to be imposed, we have taken into consideration all the mitigating circumstances advanced by respondent including the fact that full restitution was made to the clients. However, respondent is guilty of serious professional misconduct. Therefore, respondent should be, and hereby is, disbarred and his name is ordered stricken from the roll of attorneys and counselors-at-law, effective forthwith.
MOLLEN, P.J., LAZER, MANGANO, BRACKEN and WEINSTEIN, JJ., concur.