Matter of Castro
Annotate this CaseDecided and Entered: November 03, 2022 SUPREME COURT, APPELLATE DIVISION First Judicial Department
Barbara R. Kapnick,J.P.,
Cynthia S. Kern
Peter H. Moulton
Saliann Scarpulla
Martin Shulman, JJ.
Motion No. 2022-02330 Case No. 2020-03800
[*1]In the Matter of Angel Antonio Castro III, an Attorney and Counselor-at Law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Angel Antonio Castro III, (OCA Atty. Reg. No. 5435482) Respondent.
Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Fourth Judicial Department on June 20, 2016.
Jorge Dopico, Chief Attorney,
Attorney Grievance Committee, New York
(Denice M. Szekely, of counsel), for petitioner.
Angel Antonio Castro III, pro se.
Per Curiam
Respondent Angel Antonio Castro III was admitted to the practice of law in the State of New York by the Fourth Judicial Department on June 20, 2016. At all times relevant to this proceeding, he maintained a law office within the First Judicial Department.
In September 2020, the Attorney Grievance Committee (AGC) served respondent with a petition containing 11 charges of professional misconduct, including: neglect of a legal matter, misappropriation of client funds, commingling personal funds with client funds, intentionally using client funds to pay business and/or personal expenses without permission or authority, failing to obey a court judgment awarded to a client for nearly two years, recording a court proceeding without seeking court approval, and entering into a loan transaction with a client without giving the required advisories and obtaining the client's informed consent.
After some preliminary motion practice, respondent interposed an answer and affirmative defenses. By unpublished order entered August 23, 2021, this Court appointed a referee to conduct a hearing on all the charges, make findings of fact and conclusions of law and recommend an appropriate sanction.
In October 2021, the Referee conducted a hearing. The AGC presented one witness, a court reporter, and introduced documentary evidence. Respondent, who represented himself at the hearing, testified on his own behalf and presented seven defense and mitigation witnesses as well as documentary evidence. After the hearing, the Referee advised that he was sustaining 7 of the remaining 10 charges and scheduled a sanctions hearing. Respondent then retained counsel, testified at the sanctions hearing and filed a brief. The AGC argued that respondent should be disbarred. Respondent asked the Referee to recommend a public censure. The Referee issued a report dated May 18, 2022 recommending disbarment.
The charges against respondent arose from three separate matters. First, in 2018, respondent was retained to file a notice of appeal on behalf of client M.C. and was tasked with obtaining trial transcripts for evaluation. The client gave respondent a check for $3,500 expressly earmarked for the transcripts. Respondent deposited this check into his business account but never paid the court reporter or obtained the transcripts. Respondent made withdrawals from this account to pay for his business and personal expenses, leaving a balance of approximately $70.
Respondent's principal defense to these conversion charges was that he believed the $3,500 check, which bore the notation "Court's Transcripts [M.C.]," was a retainer check to spend as he wanted. The Referee found this defense incredible and concluded that respondent: (1) had converted the $3,500 in violation rules 1.15(a) and 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0); (2) neglected a legal matter by [*2]failing to obtain the transcripts in violation of rule 1.3(b); and (3) commingled client funds with personal funds by depositing the client's check into his business account in violation of rules 1.15(a) and 1.15(b)(1).
Second, the Referee found that during a matrimonial trial, respondent made an unauthorized recording of the court proceeding by wearing eyeglasses with a concealed camera. Respondent admitted this wrongful act and the Referee sustained this charge, finding that respondent's actions constituted conduct prejudicial to the administration of justice in violation of rule 8.4(d).
The third series of charges related to a $100,000 loan respondent obtained from a client in 2017 to start his law practice. Despite the self-dealing nature of this transaction and potential for a conflict of interest, respondent drafted the loan agreement and his repayment plan. The client, who was 61 years old, claimed respondent only paid back $25,000 and filed a complaint with the AGC. The Referee found that respondent failed to advise the client that he should retain separate counsel when negotiating the terms of the loan agreement in violation of rule 1.8(a)(2).
The AGC now moves for an order confirming the Referee's report and disbarring respondent pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) § 603.8-a(t)(4) and the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.8(b)(2). Respondent, again acting pro se, opposes.
Respondent first requests a "further extension to allow [him] to retain counsel." Respondent states that his current request for an extension is necessary because there "was a breakdown in communication between [him] and [his former] attorneys." Respondent claims he "did try to find new counsel, but due to the size of the AGC's motion and the record in this case, [he] was not able to secure counsel comfortable undertaking [his] representation without further extension of time."
Substantively, respondent claims that the AGC engaged in prosecutorial misconduct by failing to comply with disclosure requirements under 22 NYCRR 1240.8(a)(3) by allegedly withholding e-mail correspondence between the AGC and the complainant M.C.
Respondent further argues that this proceeding should be transferred to the Fourth Department because it is unclear whether the First Department can impartially adjudicate the matter due to his 2017 representation of a now former First Department employee who claimed to have been sexually harassed by a more senior employee. Respondent finds it coincidental that the AGC commenced this disciplinary proceeding against him around the same time of this representation.
Lastly, respondent argues that the Referee failed to give the proper weight to his mitigation evidence, which included an altercation with the NYPD where respondent was injured and arrested. The charges were dropped, and respondent claims the police severely injured his back, requiring pain medication, surgery and causing [*3]him to suffer post-traumatic stress disorder, depression, and other problems.
As an alternative to discipline, respondent requests that this Court allow him to certify as retired with OCA, so he can continue to do pro bono work and "make up for all the damage [he has] caused the Bar and profession as a whole."
The AGC replies to respondent's arguments by stating that respondent's submission in opposition should be rejected as untimely. Under CPLR 2214(b) any papers in response shall be served at least seven days prior to the return date. Respondent's affirmation was filed on the August 1, 2022 return date, which this Court subsequently adjourned to August 8, 2022.
Should this Court accept respondent's papers, the AGC argues that his response should be denied on the merits. First, the AGC states that respondent's request for a further extension of time is disingenuous as he has had ample time to seek and retain counsel and has a history of dilatory tactics. Second, respondent's request for a transfer to the Fourth Department was already rejected in connection with his October 2020 motion to dismiss. Third, the AGC states that there is no credible basis establishing that it violated 22 NYCRR 1240.8(a)(3) by withholding any exculpatory evidence because, even if the emails respondent refers to exist, there is no reason to believe they would have resulted in a different outcome. The AGC further argues that there is ample evidence in the record demonstrating support for the charges against respondent. Lastly, respondent's alternative request to certify as retired should be denied because it is not in the public interest.
Respondent's request for a further extension of time is denied, given his history of dilatory tactics and prior adjournments. Moreover, respondent has had ample time to find and retain counsel. In any event, the Referee's liability findings are firmly supported by the record and are hereby confirmed. In the absence of extremely unusual mitigating circumstances, the Referee found respondent guilty of intentionally converting client funds, mandating disbarment (Matter of Lubell, 190 AD2d 479, 481 [1st Dept 1993]; see also Matter of Bernier, 177 AD3d 37 [1st Dept 2019]; Matter of Bloomberg, 154 AD3d 75 [1st Dept 2017]; Matter of Ballner, 140 AD3d 115 [1st Dept 2016]; Matter of Babalola, 139 AD3d 61 [1st Dept 2016]; Matter of Kirschebaum, 29 AD3d 96 [1st Dept 2006]).
Respondent's other arguments are unavailing. First, respondent's claim of perceived bias on this Court's part concerning his representation of a former First Department employee was previously dismissed and is without merit. Second, the Referee fully considered respondent's mitigation argument and determined that respondent's situation was not extremely unusual as to warrant a lesser sanction than disbarment. Finally, other than his own supposition, respondent failed to provide any credible indication that the AGC withheld email correspondence in violation of 22 NYCRR 1240[*4].8(a)(3).
Accordingly, the AGC's motion to confirm the Referee's findings of fact, conclusions of law and sanction recommendation should be granted and respondent disbarred and his name is stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately.
All concur.
IT IS ORDERED that the Attorney Grievance Committee for the First Judicial Department's motion pursuant to 22 NYCRR 603.8-a(t)(4) and 1240.8(b) to confirm the Referee's report and sanction recommendation is granted and respondent, Angel Antonio Castro III, is disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately and continuing until further order of this Court, and
IT IS FURTHER ORDERED that, effective immediately, pursuant to Judiciary Law § 90, respondent, Angel Antonio Castro III, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law, and
IT IS FURTHER ORDERED that respondent, Angel Antonio Castro III, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), which are made a part hereof, and
IT IS FURTHER ORDERED that if respondent, Angel Antonio Castro III, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency.
Entered: November 3, 2022
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