Reporter
121 A.D.3d 134 *; 990 N.Y.S.2d 413 **; 2014 N.Y. App. Div. LEXIS 5633 ***; 2014 NY Slip Op 05703 ****; 2014 WL 3870859
[****1] In the Matter of Joseph Rokacz, an Attorney, Respondent. Departmental Disciplinary Committee for the First Judicial Department, Petitioner.
Prior History
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent was admitted to the bar on August 28, 1989 at a term of the Appellate Division of the Supreme Court in the First Judicial Department.
Core Terms
escrow, censure, deposit, publicly, recommendation, Disciplinary, registration, confirming, dishonesty
Headnotes/Summary
Headnotes
Attorney and Client – Disciplinary Proceedings – Censure 1. Respondent attorney was guilty of professional misconduct based upon charges that he committed a number of escrow violations, including that he deposited personal funds into his escrow account, commingled client funds with personal funds in that account, misappropriated client funds for purposes other than those for which they were intended, deposited a tenant’s security deposit into his escrow account rather than into a separate trust account, issued checks from his escrow account to pay his attorney registration fee and other business or personal expenses, failed to maintain proper records relating to his escrow account, depleted his tenant’s security deposit, and certified during his biennial registration that he was in compliance with Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15 (Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.15, 8.4 [h]; General Obligations Law § 7- 103). Respondent mishandled his escrow account as a result of negligence or mistake, and under the totality of circumstances, including his unblemished disciplinary record and a history of public service, as well as his admission to the charges, acceptance of full responsibility, remorse, taking remedial measures to avoid problems in the future and his cooperation with the Departmental Disciplinary Committee, respondent was publicly censured.
Counsel: [***1] Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York City (Kaylin L. Whittingham of counsel), for petitioner.
Frankfurt Kurnit Klein & Selz PC (Richard M. Maltz of counsel), for respondent.
Judges: David Friedman, Justice Presiding, John W. Sweeny, Jr., Richard T. Andrias, David B. Saxe, Barbara R. Kapnick, Justices. Friedman, J.P., Sweeny, Andrias, Saxe, and Kapnick, JJ. All concur.
Opinion
[*135] [**413]
PER CURIAM.
Respondent Joseph Rokacz was admitted to the practice of law in New York by the First Judicial Department on August 28, 1989, under the name Joseph Rokacz. At all times relevant to these charges, respondent has maintained an office for the practice of law within the First Judicial Department.
This disciplinary matter arises out of charges alleging that respondent committed a number of escrow violations. Specifically, the notice and statement of charges served on him by the Departmental Disciplinary [***2] Committee asserted that he violated various provisions of rule 1.15 of the Rules of Professional Conduct (22 NYCRR 1200.0), as well as rule 8.4 (h) and General Obligations Law § 7-103, by (1) depositing personal funds into his escrow account, (2) commingling client funds with personal funds in that account, (3) misappropriating client funds for purposes other than those for which they were intended, (4) depositing a tenant’s security deposit into his escrow account rather than into a separate trust account, (5) issuing checks from his escrow account to pay his attorney registration fee and other business or personal expenses, thereby misusing his escrow account as a business account, (6) failing to maintain proper records relating to his escrow account, (7) depleting his tenant’s security deposit, and (8) certifying during his biennial registration that he had read rule 1.15 (former Code of Professional Responsibility DR 9-102 [22 NYCRR 1200.46]) and was in compliance with it.
Respondent did not contest the first seven of the foregoing charges. The Referee sustained all eight charges, finding that respondent’s admitted misconduct in failing to learn and comply [*136] with the rules governing escrow accounts was the result of poor judgment, not dishonesty. The Referee also found respondent’s evidence in mitigation to [***3] be compelling. He therefore recommended a public censure. The Hearing Panel affirmed the Referee’s findings and sanction recommendation, finding that there was no venality and that no client or third party suffered harm or loss as a result of respondent’s conduct.
The Committee now moves for an order pursuant to the Rules of the Appellate Division, First Department (22 NYCRR 605.15 [e] [1]), confirming the Hearing Panel’s findings of fact and conclusions of law, and publicly censuring respondent.
In analogous situations, where an attorney mishandled his or her escrow account as a result of negligence or mistake, had a previously unblemished record with a history [**414] of public service, admitted to the charges, accepted full responsibility, demonstrated remorse, took remedial measures to avoid such problems in the future and cooperated with the Committee, this Court has consistently held that the appropriate sanction is public censure (Matter of Dyer, 89 AD3d 182, 185-186, 931 NYS2d 585 [1st Dept 2011]). “Such a penalty is particularly appropriate in cases where, as here, there were findings made by both the Referee and Hearing Panel that the conduct in question ‘reflected poor judgment rather than dishonesty’ ” (id. at 186, quoting Matter of Cohen, 12 AD3d 29, 31, 785 NYS2d 44 [1st Dept 2004]).
Accordingly, the Committee’s motion for an order confirming [***4] the Hearing Panel’s findings and conclusions should be granted and respondent publicly censured.
Friedman, J.P., Sweeny, Andrias, Saxe and Kapnick, JJ., concur.
Respondent publicly censured.