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In re Popper6/12/2000
DISCIPLINARY proceeding instituted by the Grievance Committee for the Second and Eleventh Judicial Districts. 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 December 10, 1986. By decision and order of this court, dated March 2, 1999, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against him and the issues raised in the proceeding were referred to the Honorable John A. Monteleone, as Special Referee to hear and report. Robert H. Straus, Brooklyn, N.Y. (Mark F. DeWan of counsel), for petitioner.
OPINION & ORDER
GUY JAMES MANGANO, P.J. LAWRENCE J. BRACKEN FRED T. SANTUCCI DANIEL W. JOY WILLIAM C. THOMPSON, JJ.
1527B
PER CURIAM. The respondent was served with a petition containing three charges of professional misconduct. After a hearing, the Special Referee sustained all three charges. The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline as the court deems appropriate. The respondent's counsel has submitted an affirmation in response requesting that the court, in imposing discipline, temper its judgment in light of substantial mitigating factors.
_ The charges, which include failure to properly safeguard funds entrusted to the respondent as a fiduciary, in violation of Code of Professional Responsibility DR 9-102(b) (22 NYCRR 1200.46 ), commingling, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46 ), and engaging in conduct adversely reflecting upon his fitness to practice law, in violation of Code of Professional Responsibility DR 1-102(a)(8) (now ) (22 NYCRR 1200.3 [now (7) ] ), emanate from the following facts.
On or about November 15, 1997, the respondent deposited a check in the amount of $32,100 into his escrow account, representing the down payment on a real estate transaction in which he represented the seller, Shirley Lichtig. Pursuant to the contract of sale, the respondent was to hold the down payment in escrow until the closing of title.
In or about January 1998, the respondent settled a personal injury matter which he was handling on behalf of Guy Jean-Pierre for $9,500. The settlement was to be paid as follows: $4,500 by Eagle Insurance Company and $5,000 by State Farm Mutual Automobile Insurance. On or about January 23, 1998, the respondent deposited a check from Eagle Insurance Company in the amount of $4,500 into his attorney escrow account. He then drew the following checks, pertaining to the settlement, from that account: (1) a check in the amount of $5,746.28 to Mr. Jean-Pierre, representing his share of the settlement; (2) a $1,000 check to himself, representing a portion of his legal fee; and (3) a $2,746.28 check to himself, representing the remaining portion of his legal fee.
The respondent attended the Lichtig closing on or about January 30, 1998. Pursuant to an agreement executed at that time, the respondent was required to hold $10,000 of the sale proceeds in his attorney escrow account until Ms. Lichtig obtained a certificate of occupancy for an addition to the residence on the property.
In or about March 1998, the respondent learned that Ms. Lichtig had obtained the certificate of occupancy. On or about March 3, 1998, the respondent drew a check for $402.90 on the escrow account, payable to the New York City Department of Buildings with respect to the Lichtig transaction. On or about March 3, 1998, the respondent drew a $1,000 check on that account, payable to Issam Abourateh of IMA Contracting, with respect to the Lichtig transaction.
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