Matter of Jones

Matter of Jones 2012 NY Slip Op 06956 Decided on October 17, 2012 Appellate Division, Second Department Per Curiam. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT RANDALL T. ENG, P.J WILLIAM F. MASTRO REINALDO E. RIVERA PETER B. SKELOS MARK C. DILLON, JJ.
2010-07841

[*1]In the Matter of Patrick H. Jones, admitted as Patrick Hugh Jones, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Patrick H. Jones, respondent. (Attorney Registration No. 2705150)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Ninth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on November 29, 1995, under the name Patrick Hugh Jones. By decision and order on application of this Court dated November 23, 2010, the Grievance Committee for the Ninth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the acts of professional misconduct alleged in a petition dated August 9, 2010, and the matter was referred to the Honorable Kenneth Rudolph, as Special Referee, to hear and report with respect to the issues raised by the petition and any answer thereto.


Gary L. Casella, White Plains, N.Y. (Gloria J. Anderson and
Antonia Cipollone of counsel), for petitioner.
Patrick H. Jones, New York, N.Y., respondent pro se.
The Grievance Committee for the Ninth Judicial District
(hereinafter the Grievance Committee) served the respondent
with a petition dated August 9, 2010, containing six charges of
professional misconduct, of which one charge (charge four) was
withdrawn. Following a hearing, the Special Referee sustained
charges one, two, three, five, and six. The Grievance Committee
now moves to confirm the report of the Special Referee. The
respondent does not oppose the Grievance Committee's motion,
but requests that any sanction be limited to a public censure.
Charges one and two emanate from a common set of factual
allegations, as follows:
Between in or about 2003 and at least May 19, 2008, the
respondent was a named partner in the law firm of Jones,
Ferguson & Campbell, LLP (hereinafter JF & C). During that period,
JF & C was retained to represent the estate of Jean Barbara
Pitter.
On or about July 7, 2005, JF & C opened account number
*****9970 at Carver Federal Savings Bank to deposit and
disburse funds relating to the Pitter estate (hereinafter the estate
account). The respondent and his wife, Donna A. Campbell, who was
also a named partner in JF & C, were the only signatories on the
estate account. JF & C maintained the estate account through at
least December 31, 2008.
During the period from July 7, 2005, through December 31,
2008, checks relating to the Pitter estate totaling $421,399.20
were deposited into the estate account. Funds from an unknown [*2]
source totaling $8,600, including $2,600 in cash, were also
deposited into the estate account.
On or about January 19, 2007, and May 17, 2007, earned legal
fees in the unrelated Walcott and Clarke matters, in the
respective amounts of $1,500 and $2,000, were deposited into the
estate account. On or about December 19, 2007, a $5,000
retainer fee in the unrelated Cadogan-Moore matter was also deposited
into the estate account.
During the same period, checks totaling $231,791.78 were
disbursed in connection with the estate. From the $189,607.42
remaining balance of estate funds, $149,400 was disbursed by
checks payable to JF & C, which were deposited into JF & C's
business operating account number *****0630 (hereinafter the
operating account) at Carver Federal Savings Bank. The
respondent and Campbell were the only signatories on the operating
account. Of the $149,400 disbursed to JF & C, Campbell
disbursed checks totaling $142,200, and the respondent disbursed
checks totaling $7,200.
Following the deposit of $149,400 of estate funds into the
operating account, disbursements were made to the personal
account maintained by the respondent and Campbell at
Wachovia Bank, and the funds were used to pay for personal expenses
such as housing and food.
After the $149,400 was disbursed into the operating account,
Campbell disbursed $33,000 of the $40,207.42 remaining
balance of estate funds to JF & C. The $33,000 was deposited into
account number *****7560 at Carver Federal Savings Bank,
titled "Jones, Ferguson & Campbell/IOLA Funds" (hereinafter
the IOLA account). The respondent and Campbell were the only
signatories on the IOLA account.
Of the $33,000 in estate funds that were deposited into the
IOLA account, Campbell disbursed $11,200 to JF & C, and
deposited those funds into the operating account. At least
$20,292.82 of the $33,000 was disbursed by Campbell from the IOLA
account in connection with various legal matters unrelated to the
Pitter estate.
After the $33,000 was deposited into the IOLA account,
$7,207.42 remained in the estate account. From the $7,207.42,
Campbell disbursed an additional $6,000 to JF & C.
Campbell was immediately suspended from the practice of
law in the State of New York on or about May 19, 2008. She
was disbarred by order of this Court dated February 23, 2010,
after submitting an affidavit of resignation wherein she admitted
that she could not successfully defend herself on the merits
against contemplated charges of professional misconduct based,
inter alia, upon a complaint filed by Rowena Hansford alleging
that Campbell had failed to account for funds belonging to the
Pitter estate.
Charge one alleges that the respondent breached his fiduciary
duty by failing to safeguard and ensure the transactional
integrity of funds entrusted to JF & C incident to the practice of law,
and by failing to discover or prevent the theft and/or
misappropriation and/or commingling of said funds, in violation of
Code of Professional Responsibility DR 9-102(a) (22 NYCRR
1200.46[a]).
Charge two alleges that the respondent failed to ensure that
his law partner, Campbell, was conforming to the disciplinary
rules, and failed to discover or prevent the theft and/or
misappropriation of funds entrusted to JF & C incident to the practice
of law, at a time when, in the exercise of reasonable
management authority, remedial action could have been taken to avoid
or mitigate the theft and/or misappropriation of such funds, in
violation of Code of Professional Responsibility DR 1-104(a),
(b), and (d)(2) (22 NYCRR 1200.5[a], [b], [d][2]).
Charge three alleges that the respondent engaged in conduct
adversely reflecting on his fitness as a lawyer by disbursing
funds entrusted to him incident to the practice of law to pay JF
& C's legal fees without first obtaining the client's permission, in
violation of Code of Professional Responsibility DR 1-102(a)(7)
(22 NYCRR 1200.3[a][7]). In connection with JF & C's
representation of the Pitter estate, and the opening of an estate account
relative thereto (charge one, above), the respondent disbursed
check number 107 from the estate account on or about
December 9, 2005, payable to JF & C in the amount of $6,000, as
"Estate of Pitter legal fees." On or about January 7, 2006, the
respondent disbursed check number 108 from the estate account,
payable to JF & C in the amount of $1,200, as "legal fees"
related to the Pitter estate. The respondent did not have specific
authorization from Rowena Hansford, the executor, to disburse said
fees to JF & C.
Charge five alleges that the respondent failed to properly title
and identify an estate account, in violation of Code of
Professional Responsibility DR 9-102(b)(2) (22 NYCRR
1200.46[b][2]). In connection with JF & C's representation of the
Pitter estate, and the opening of an estate account relative
thereto (charge one, above), the estate account was entitled "Jones
Ferguson & Campbell LLP." During the period from July 7,
2005, through at least December 31, [*3]2008, checks and deposit
slips related to the estate account were imprinted "Jones,
Ferguson & Campbell LLP," and did not include the additional
required language identifying the account as an "Attorney Special,"
"Attorney Trust," or "Attorney Escrow" account.
Charge six alleges that the respondent failed to maintain, for
seven years after the events they recorded, the required
bookkeeping records of activity in JF & C's accounts that concerned
the practice of law, in violation of Code of Professional
Responsibility DR 9-102(d)(1), (2), (8), and (9) (22 NYCRR
1200.46[d][1], [2], [8], [9]). On or about September 18, 2003, JF & C
opened business operating account number *****0630 (the
operating account) at Carver Federal Savings Bank for the
deposit and disbursement of funds relating to JF & C's practice of law.
The respondent was a signatory on the operating account, which
was titled "Jones Ferguson & Campbell, LLP." On or about
July 30, 2004, JF & C opened IOLA Mortgage Escrow Account
number *****7560 (the IOLA account) at Carver Federal
Savings Bank. The respondent was a signatory on the IOLA account.
On or about July 7, 2005, JF & C opened account number
*****9970 at Carver Federal Savings Bank (the estate account) for the
deposit and disbursement of funds relating to the estate of Jean
Barbara Pitter (charge one, above). The respondent was a
signatory on the estate account. The respondent was asked to provide
the Grievance Committee with various required bank and
bookkeeping records for the aforesaid accounts, including ledger
books or similar records. The respondent failed to maintain the
required bank records. He obtained copies of various bank statements
and canceled checks from the bank and provided them in
response to the Grievance Committee's request. The respondent was
not able to produce any contemporaneous ledger(s) or similar
records of activity in the accounts for the period(s) at issue.
Based upon the evidence adduced, including the respondent's
admissions, charges one, two, three, five, and six were properly
sustained by the Special Referee. The Grievance Committee's
motion to confirm the Special Referee's report is granted.
In determining an appropriate measure of discipline to
impose, the Court notes that Campbell, the respondent's wife and law
partner, was engaged in larcenous behavior, to wit, stealing
funds from an estate account on which the respondent was also a
signatory. However, by his own admission, the respondent never
reviewed the banking records attendant to the estate account.
Indeed, he failed to maintain them, as required. Moreover, the
respondent had an opportunity to observe the transfer of estate
funds into other accounts to which he was a signatory, including
the operating account (records for which he admittedly
reviewed) and his personal account (from which he profited by
Campbell's larceny through the payment of personal expenses). The
Court is mindful of the respondent's assertion that any sanction
beyond a public censure will negatively impact his family.
Under the totality of the circumstances, the respondent is
suspended from the practice of law for a period of two years (cf.
Matter of Fonte, 75 AD3d 199; Matter of Forman, 250 AD2d
116).

OPINION & ORDER


ENG, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ORDERED that the petitioner's motion to confirm the Special Referee's report is granted; and it is further,

ORDERED that the respondent, Patrick H. Jones, admitted as Patrick Hugh Jones, is suspended from the practice of law for a period of two years, commencing November 16, 2012, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than May 16, 2014. In such application, the respondent shall furnish satisfactory proof that during said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(c)(2), and (4) otherwise properly conducted himself; and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, the respondent, Patrick H. Jones, admitted as Patrick Hugh Jones, shall desist and refrain from (l) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, [*4]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 if the respondent, Patrick H. Jones, admitted as Patrick Hugh Jones, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court