Hello everyone and welcome to this Ethics Alert blog which will discuss the recent disciplinary opinion of the New York Appellate Court disbarring a New York lawyer for improperly removing bond money paid by a client to pay his fees, falsifying a bill, and showing defiance and a lack of remorse. The case is Matter of Chmura, 2012 NR Slip Op 06298 (9/26/12) and the opinion is here: http://www.nycourts.gov/reporter/3dseries/2012/2012_06298.htm
According to the relatively short opinion, the first count of the disciplinary petition charged the lawyer with converting funds entrusted to him as a fiduciary in violation of New York Bar Rules. On October 19, 2006, Barbara Szalanska retained the lawyer on behalf of Allan Sirju, and paid him $10,000.00 in cash from her funds to post a bond for Sirju, who was being held in immigration custody in Arizona. On August 28, 2008, the lawyer deposited a check from the U.S. Treasury Department for $10,487.30 into his trust account, which funds constituted the return of the bond for Sirju, plus interest. On November 20, 2008, without any authorization, the lawyer wrote a check to himself for $6,015.00 from the bond money paid by Szalanska. The lawyer never returned the $10,487.30 to either Szalanska or Sirju. The lawyer claimed that the bond money was Sirju’s and that he had no obligation to refund any money to Szalanska, whom he maintained was simply a “messenger.” The referee found that the bond money belonged to Szalanska and that the lawyer was well aware of that fact.
The second count in the petition alleged that the lawyer engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of New York Bar Rules. When he was initially retained, t he lawyer signed a fixed fee retainer agreement for $3,000.00 for Sirju’s immigration matter. On April 12, 2010, while under oath before the Grievance Committee, the lawyer produced a bill dated April 12, 2010 for attorney’s fees over the $6,015.00 that he had previously taken from the bond; however, he never sent the bill to Sirju. The referee found that the lawyer created the bill in an effort to justify paying himself from Szalanska’s bond money.
After conducting proceedings, the referee made findings of fact and sustained both of the counts in the petition. The opinion upheld those findings and disbarred the lawyer. The opinion further stated that “(t)he respondent offered no evidence in mitigation. The respondent has a significant disciplinary history of three Admonitions and two Letters of Caution. The respondent is currently delinquent in the payment of his attorney re-registration fees for two biennial periods. The respondent shows no remorse and remains defiant in his claim that he is ‘entitled’ to deduct his fees from the bond money. The evidence shows that the respondent took advantage of a fellow Polish immigrant. His offer to return the balance of the bail money, but only to Sirju, who is no longer in the country, underscores the bold nature of his theft. His testimony was riddled with inconsistencies and contradictions. Not only did the respondent wrongfully deduct his fees from the bail money, but he padded his bill with improper charges, a bill which was fabricated to justify his conduct. Of note, the respondent was previously admonished in 2005 for similar conduct.”
Bottom line: Lawyers should not take funds which have been designated for a specific purpose (in this case an immigration bond) without obtaining permission from the client (or in this case, the client and third party payer) and then create a fake bill to justify taking the money. Are these things everyone should have learned in kindergarten?
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
| Joseph A. Corsmeier, Esquire
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