Matter of Harry R. Hayes

Matter of Hayes 2003 NY Slip Op 18978 [1 AD3d 789] November 17, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of Harry R. Hayes III, an Attorney, Respondent. Committee on Professional Standards, Petitioner.

— Per Curiam. Respondent was admitted to practice by this Court in 1980 and maintains an office for the practice of law in the Town of Clifton Park, Saratoga County.

We confirm a Referee's report which sustained charges of professional misconduct in violation of the attorney disciplinary rules (see Code of Professional Responsibility DR 1-102 [a] [4], [5], [7] [22 NYCRR 1200.3 (a) (4), (5), (7)]). We have heard respondent in mitigation.

During the course of applying to refinance a mortgage, respondent submitted, on two different occasions, false and fraudulent satisfactions of judgment which he had prepared and secured to make it appear that he had paid a default judgment taken against him by a creditor. He filed the second fraudulent document in the Albany County Clerk's office. In response to a motion by the creditor to vacate the filed document, respondent entered into a stipulation to pay the judgment. He then tendered a check in payment which was returned for insufficient funds. At the time that he issued the check, he knew that he had insufficient funds in the account to cover it. The creditor then moved to vacate the first fraudulent satisfaction of judgment and for sanctions. Supreme Court granted the motion and found that respondent engaged in frivolous conduct warranting sanctions (see 22 NYCRR part 130). Supreme Court scheduled a hearing as to the amount of the sanctions. Respondent then paid the default judgment and it appears the creditor withdrew the motion for sanctions.

In 1997, we suspended respondent from practice for two years and condemned his conversion of substantial funds belonging to a client, albeit briefly, as a failure to abide by the high standards expected of a member of the legal profession. However, given the mitigating circumstances, we stayed the suspension upon the condition that respondent submit semiannual CPA reports confirming that he was maintaining his escrow accounts and preserving clients funds properly (Matter of Hayes, 238 AD2d 668 [1997]). By further decision in 1999, we granted respondent's motion to terminate the stayed suspension (Matter of Hayes, 261 AD2d 815 [1999]).

Now, in view of respondent's very serious professional misconduct, which is aggravated by his prior disciplinary record, we conclude that respondent should be disbarred.

Mercure, J.P., Crew III, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that petitioner's motion to confirm the Referee's report is granted; and it is further ordered that respondent is found guilty of the professional misconduct charged and specified in the petition; and it is further ordered that respondent is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law of the State of New York, effective immediately; and it is further ordered that respondent is commanded to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another; he is forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority; or to give any opinion as to the law or its application, or any advice in relation thereto; and it is further ordered that respondent shall comply with the provisions of this Court's rules regulating the conduct of disbarred attorneys (see 22 NYCRR 806.9).