IN RE: James E. BANAGAN (1998)

Respondent was admitted to practice by this court in 1974.   He maintains an office for the practice of law in Albany.

Petitioner, the Committee on Professional Standards, moves to confirm the report of the Referee which sustained three of six charges of professional misconduct.   Respondent does not oppose the motion but has appeared in mitigation.

Respondent issued a check to his client on his escrow account in the amount of $2,005.58 which the client, based on information provided by respondent, believed represented funds that respondent had collected on a judgment the client had previously obtained pro se.   In fact, although respondent testified he expected to collect the funds that day, he had not done so.   When the client tried to cash the check, the bank rejected it for insufficient funds.   During the same day, the client returned to respondent's office and respondent issued him a new check in the same amount but drawn on respondent's operating account, which check the client successfully negotiated.   Respondent falsely told the client the first check had been inadvertently drawn on a closed account.   As found by the Referee, and in violation of Appellate Division joint disciplinary rules, respondent attempted to mislead and deceive his client as to the status of the collection matter (see, 22 NYCRR 1200.3[a] [4], [5], [8] ) and then issued a bad check to the client (see, 22 NYCRR 1200.3[a], [5], [8];  1200.46).   Respondent compounded his misconduct by making misleading and deceptive statements in letters responding to petitioner's inquiry in this matter (see, 22 NYCRR 1200.3[a][4], [5], [8] ).

In view of the character testimony on his behalf, the Referee's finding that respondent was embarrassed and contrite in demeanor, and respondent's clean public disciplinary record, we conclude that respondent should be censured for his professional misconduct.

ORDERED that respondent is found guilty of the professional misconduct set forth in charges I, II, and III of the petition, except insofar as charge II alleged violation of 22 NYCRR 1200.3(a)(4), and the motion to confirm the Referee's report is granted accordingly;  and it is further

ORDERED that respondent is censured.

PER CURIAM.