Opinion
January 29, 1985
David E. Brennan ( Gerard M. LaRusso of counsel), for petitioner.
Luther W. Miller for respondent.
Respondent was admitted to practice by the Appellate Division, Third Department, in 1954 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 valued at $316,000 and after having paid the obligations of the estate and substantially distributing the majority of the assets to the beneficiaries, he withheld approximately $55,000 pending receipt of an Internal Revenue Service closing letter. These assets were deposited in an account entitled "James Richards Trust Account".
Respondent failed to identify and preserve the approximately $55,000 of estate assets in that from July, 1982 to October, 1983, respondent's trust account fell below the interest belonging to the estate. Respondent has since reimbursed the estate and returned his legal fees in the amount of $15,000. His assertions that he never intended to convert money from the estate and that the deficiencies in the account resulted from his erroneous assumptions and inattention, are no defense to the charges that he violated 22 NYCRR 1022.5 (a), (b) (commingling and converting a client's funds and withdrawing moneys for his own use) (see Matter of La Bue, 98 A.D.2d 84; Matter of LaCava, 53 A.D.2d 204; Matter of Iversen, 51 A.D.2d 422).
Respondent also is guilty of violating DR 9-102 (A), (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 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 GREEN, JJ., concur.
Order of suspension entered.