In re Pinello , 100 A.D.2d 64 ( 1984 )

OPINION OF THE COURT

Per Curiam.

Respondent was admitted to practice as an attorney and counselor at law in March of 1976 by the Appellate Division of the Supreme Court, First Judicial Department. At all times relevant to the instant proceeding, he maintained an office for the practice of law in the First Judicial Department.

Petitioner Departmental Disciplinary Committee moves for an order confirming the findings of fact and conclusions of law of a hearing panel and directing that respondent be disbarred and his name stricken from the roll of attorneys. The facts herein are not in dispute since respondent has admitted to the charges against him, subsequently sustained by the hearing panel. The allegations are that on or about September 28, 1979, respondent consented to act as escrow agent under the terms of an agreement between the Concourse Center of Israel and Anthony Mansolillo, doing business as Northern Appraisers. On or about April 7, 1980, respondent received the sum of $7,614.16 to be held by him in escrow in accordance with the terms of this agreement, and he deposited that amount in his escrow account at Chase Manhattan Bank, N.A. However, the balance of the escrow account fell below $7,614.16 on or about April 16,1980, and the moneys therein continued to diminish until the account was closed for lack of funds on May 27,1981. Respondent did not, at any time prior to May 29, 1981, disburse any of the escrow accounts pursuant to the escrow agreement.

Although respondent does not dispute the panel’s finding that he has been guilty of dishonesty, fraud, deceit and misrepresentation in violation of DR 1-102(A) (4) of the Code of Professional Responsibility, he offers in mitigation of the sanction to be imposed the fact that no person sustained any financial loss as a result of his conduct and that, at the time of the events at issue, he was suffering from extreme emotional, psychological and physical distress due to: (1) his mother’s illness with terminal cancer, (2) his own bout of hepatitis, (3) the violent and traumatic termination of the relationship between him and his lover, and (4) felony criminal charges, eventually dismissed, which were pending against him. In addition to these circumstances, respondent also refers to the character witnesses who testified before the hearing panel as to his competency, intellect, and moral character. In this connection, it should be noted that respondent’s ability as a lawyer is not in question here. Moreover, he frequently applied himself to providing pro bono work for the community.

Virtually all lawyers who take money from an escrow account undoubtedly intend to restore the funds initially but later find themselves lacking the means to achieve this end. Most lawyers attempt to make restitution after their misdeeds have been discovered. It is, therefore, of no particular credit to respondent that he is repaying the converted funds, since it is to be expected that he would endeavor to do so. Moreover, in the instant situation, respondent did not replenish the escrow funds until a judgment was rendered against him for $3,071.39 in the Supreme Court of the State of New York, New York County, affirmed by this court, and the outstanding balance is being held in a special account pending the determination of an appeal from a judgment of the Supreme Court of the State of New York, County of New York, in favor of the other party to the escrow arrangement. Thus, while it may be true that everyone concerned has already been, or will be, repaid, this does not negate the expense, inconvenience and lost time incurred as a result of the ensuing litigation.

Although we sympathize with respondent’s personal problems, they should not furnish the basis for a reduction in his penalty. Attorneys confronted with disciplinary proceedings often contend that they acted under extreme emotional and/or physical disturbance; they frequently cite such factors as severe illness in the family, alcoholism, addiction to gambling, or marital or other pressures. Yet, absent extremely unusual circumstances, not here apparent, such personal problems cannot provide justification, even in mitigation, for wrongful behavior. Further, while we note respondent’s community efforts, the same high professional standards are required of all lawyers, regardless of their affiliation, group membership or activities on behalf of that group.

This court has consistently imposed the penalty of disbarment where an attorney has converted the escrow funds of a client or third party. (Matter of Borsher, 93 AD2d 322; Matter of Warfman, 91 AD2d 356; Matter of Nadel, 85 AD2d 8; Matter of Field, 79 AD2d 198; Matter of Stults, 77 AD2d 254, mot for lv to app den 53 NY2d 606; Matter of Wolf, 73 AD2d 419; and Matter of Marks, 72 AD2d 399.) Whenever an attorney misappropriates funds from a client, faith in the legal profession is thereby eroded. A lawyer who steals from a client and thus violates the sacred trust reposed in him, should forfeit the right and the privilege to practice law. Only the ultimate punishment of disbarment can properly express our abhorrence for such conduct, protect the public and maintain confidence in the integrity of the legal profession.

Consequently, petitioner’s motion should be granted. Respondent should be disbarred and his name stricken from the roll of attorneys and counselors at law.