Grievance Committee of the Fifth Judicial District, Petitioner. v. << (2001)

Respondent was admitted to the practice of law by this Court on February 20, 1974, and formerly maintained an office for the practice of law in Cicero.   The Grievance Committee filed a petition charging respondent with acts of professional misconduct including conversion.   Respondent filed an answer admitting the allegations of the petition and appeared before this Court to submit matters in mitigation.

Respondent admits that, as counsel for the sellers in a real estate transaction, he accepted a check from which he was to pay the broker's commission in the amount of $2,800.   He deposited the check into his attorney trust account and thereafter issued checks drawn on the trust account for personal purposes, causing the balance in the account to fall below the amount owed to the broker.   The broker obtained a judgment against respondent for the amount of the commission, which remains unsatisfied.

We conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility:

DR 1-102(a)(7) (22 NYCRR 1200.3[a][7] )-engaging in conduct that adversely reflects on his fitness as a lawyer;  and

DR 9-102(a) (22 NYCRR 1200.46[a] )-misappropriating funds belonging to another person that are in his possession incident to his practice of law.

We have considered the matters submitted by respondent in mitigation, including his expression of remorse.   We note, however, that financial difficulty does not justify or excuse conversion.   Accordingly, after consideration of all the factors in this matter, we conclude that respondent should be suspended for a period of two years and until further order of the Court.   Additionally, we direct respondent to make restitution in accordance with the order entered herewith.

Order of suspension and restitution entered.

PER CURIAM.