IN RE: Joan Ann CHARLES (1999)

Respondent Joan Ann Charles was admitted to the practice of law in the State of New York by the Third Judicial Department on November 26, 1991.   At all times relevant to this proceeding, she maintained an office for the practice of law within the First Judicial Department.

By an amended Notice and Statement of Charges, the Departmental Disciplinary Committee (DDC) charged respondent with violating Disciplinary Rules 1-102(A)(4), (5) and (8), 6-101(A)(3), and 9-102(A), (B), and (C)(4) (22 NYCRR 1200.3, 1200.30, 1200.46).   DDC alleged that respondent had converted to her own use funds belonging to two clients, in violation of Disciplinary Rule 1-102(A)(4) (counts one and four), that in both instances she failed to preserve the identity of the funds, in violation of Disciplinary Rule 9-102(A) and (B) (counts two and five), that she had neglected one of these client matters in violation of Disciplinary Rule 6-101(A)(3) (count six), that she failed to promptly return the funds of one of these clients in violation of Disciplinary Rule 9-102(C)(4) (count seven) and in an unrelated matter, that she had neglected the matter in violation of Disciplinary Rule 6-101(A)(3) (count ten) and disobeyed a judicial ruling, thereby engaging in conduct prejudicial to the administration of justice in violation of Disciplinary Rule 1-102(A)(5) (count nine) and disregarding a ruling of a tribunal in the course of a proceeding in violation of Disciplinary Rule 7-106(A) (count eleven).   Respondent also was charged with engaging in conduct that adversely reflects on her fitness to practice law with respect to all three client matters (counts three, eight and twelve).

After the hearing before the referee, respondent admitted to counts nine through twelve.   Counts one and four, alleging conversion of client funds, and six were dismissed, but counts two, three, five and seven through twelve were sustained.

At the sanction hearing, DDC staff recommended a three-year suspension, although the referee recommended a six-month suspension.   The Hearing Panel recommended dismissal of count seven, alleging that respondent had failed to promptly repay a client, but, rejecting the referee's sanction recommendation, recommended a three-year suspension.

DDC now moves to confirm the referee's report as confirmed and modified by the Hearing Panel, but suspending respondent for three years.   Respondent cross-moves to modify the referee's report as confirmed and modified by the Hearing Panel to sanction her with a public censure.

Respondent admittedly commingled funds in her escrow account in violation of counts two and five, although the commingling appears to have resulted from chronic careless accounting rather than from venality.   Nevertheless, she intentionally withdrew funds therefrom that were deposited into her business account, after which it took an excessively long period of time before she explained to clients what had happened to funds held in escrow by her and to make restitution.   Two clients had to file complaints with DDC before respondent made meaningful efforts to explain and repay those clients with personal funds.   Thus, counts three and eight, alleging conduct adversely reflecting on respondent's fitness to practice law, were established.   She also admitted to neglecting client litigation, resulting in dismissal, thereby establishing count ten, during the course of which she failed to comply with discovery orders, establishing counts nine and eleven, and finally, after representing to DDC that she was pursuing an appeal, her dilatory conduct led to dismissal of the appeal.   Although we do not conclude that respondent intended to mislead DDC in this latter regard, nevertheless, it provides additional indications of neglect as alleged in count ten.   Count twelve, alleging conduct adversely reflecting on respondent's fitness to practice law, is also established by such neglect.

We agree with the referee that respondent's conduct with regard to her escrow account, even if unintentional, was unacceptable, which has led us to impose the sanction of suspension in other cases (see, e.g., Matter of Quesada, 196 A.D.2d 324, 613 N.Y.S.2d 585;  Matter of Greenfield, 152 A.D.2d 165, 547 N.Y.S.2d 300).   Compounded with errors in regard to her escrow account, respondent's failure to expeditiously resolve her accounting problems and further delays in paying her client warrants suspension.   Her dilatory conduct is further evident in her chronic neglect of another client's case.   These facts lead us to reject the referee's recommendation of a six-month suspension.   However, we note that respondent is not alleged to have acted with venality, she appears to have been inexperienced, presented good character evidence, and she has no prior disciplinary history.   As a consequence, we conclude that a suspension of eighteen months is an appropriate sanction.

Accordingly, the DDC's petition should be granted to the extent confirming the findings of fact and conclusions of law contained in the Report and Recommendation of the Hearing Panel, which modified the Report and Recommendation of the Referee, and disaffirming the recommended sanction of a three-year suspension, and respondent should be suspended for eighteen months.   The cross-motion by respondent should be denied.

Petition granted to the extent of confirming the findings of fact and conclusions of law contained in the Report and Recommendation of the Hearing Panel, which modified the Report and Recommendation of the Referee, and disaffirming the recommended sanction of a three-year suspension, and respondent suspended from the practice of law in the State of New York for a period of eighteen months, effective July 6, 1999, and until the further order of this Court.   Cross-motion by respondent for a sanction of censure denied.

PER CURIAM.

All concur.