Opinion
December 16, 1983
David E. Brennan ( Gerard M. LaRusso of counsel), for petitioner.
Harris, Beach, Wilcox, Rubin Levey ( James A. Hartman of counsel), for respondent.
Respondent was admitted to practice by this court in 1957 and maintains an office for the practice of law in Rochester, New York. The uncontroverted allegations of the petition show that respondent was retained as attorney for an estate and in July, 1981 deposited $13,506.14 of estate moneys in an account entitled "A. James LaBue, Attorney's Account". Respondent failed to identify and preserve $12,901.14 of those funds (he disbursed the remaining $605 for estate expenses); the bank's ledger statements pertaining to the account reflect monthly balances well below the sum of $12,901.14. Respondent has since reimbursed the estate with interest. His assertion that he always intended to repay the estate and was able to do so, if established, would be no defense to the charge that he violated 22 NYCRR 1022.5 (a) and (b) (commingling and converting a client's funds and withdrawing moneys for his own use) (see Matter of LaCava, 53 A.D.2d 204; Matter of Iversen, 51 A.D.2d 422).
Respondent is guilty of violating DR 9-102 (A) and (B) of the Code of Professional Responsibility and this department's rules relating to attorneys ( 22 NYCRR 1022.5 [a], [b]).
After considering the mitigating circumstances including his payment in full of the moneys with interest and his otherwise clear record, we conclude that he should be suspended from the practice of law for one year and until the further order of this court.
DILLON, P.J., HANCOCK, JR., CALLAHAN, DOERR and DENMAN, JJ., concur.
Order of suspension entered.