Gavin v. New York State Bar Ass'n

• Decision Date: 28 April 1972
• Citation: 39 A.D.2d 626,331 N.Y.S.2d 188
• Parties: In the Matter of Franklin P. Gavin, Petitioner. In the Matter of Franklin P. GAVIN, an Attorney, Respondent, v. NEW YORK STATE BAR ASSOCIATION, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 188

331 N.Y.S.2d 188

39 A.D.2d 626

In the Matter of Franklin P. Gavin, Petitioner.

In the Matter of Franklin P. GAVIN, an Attorney, Respondent, v. NEW YORK STATE BAR ASSOCIATION, Petitioner.

Supreme Court, Appellate Division, Third Department.

April 28, 1972.

Before HERLIHY, P. J., and GREENBLOTT, SWEENEY, SIMONS and REYNOLDS, JJ.

MEMORANDUM DECISION.

Petitioner moves to confirm in part and disaffirm in part the report of the Referee to whom the issues in the proceeding were referred. Respondent conversely moves to confirm the findings favorable to him and to disaffirm those which are unfavorable.

Respondent was admitted to the Bar by this court on January 18, 1940. He was suspended from practice for four months in 1961 for income tax avoidance. (Matter of Gavin, 14 A.D.2d 19, 217 N.Y.S.2d 701.) In 1968 he was again suspended for 18 months upon findings that, although he had made complete restitution, he had been guilty of conversion of funds from an estate of which he was executor. (Matter of Gavin, 30 A.D.2d 121, 290 N.Y.S.2d 594, mot. for lv. to app. den. 23 N.Y.2d 641, 297 N.Y.S.2d 1025, 244 N.E.2d 884.) In July 1970, respondent's application for reinstatement was adjourned upon application of petitioner, who was directed to investigate and report on whether respondent had in all respects complied with the terms of the suspension order. After respondent had been examined under oath on 5 occasions a petition containing 5 charges of misconduct and a supplemental petition containing 17 charges of misconduct (one of which was subsequently withdrawn) were filed and the present disciplinary proceeding instituted.

The 21 charges fall generally into 3 categories: failure to cooperate with the Committee on Grievances, neglect of clients' interests, and conversion of funds.

With respect to failure to cooperate with the Committee on Grievances, it is alleged that although respondent was given due notice that he would be examined as to the disposition of all cases which were pending at the time of his suspension and as to matters relating to his employment, income, and the receipt and disbursement of any funds arising from the practice of law, respondent refused to provide a complete list of pending cases or to advise the Committee as to the particulars of and the disposition of a number of the cases. In denying this charge, respondent contends that he gave full cooperation to the Committee with the exception of three cases, as to which he conditionally declined to disclose certain information as being violative of the attorney-client privilege, irrelevant, and beyond the scope of the investigation.

In refusing to sustain this charge the Referee found on the entire record that there was no evidence to warrant a finding of refusal to cooperate. We cannot agree. After being adequately notified by petitioner's counsel as to the nature and scope of his examination, respondent steadfastly avoided, and finally refused to comply with, numerous requests to produce bank and office records or to answer questions directed to them. Similarly, he failed to produce a list of files, which concededly he had prepared, or any documentary evidence to show that he had adequately advised his clients of his suspension from practice or had arranged for substitution of other attorneys. Therefore, even assuming respondent is correct in contending, with respect to a suspended attorney's obligation to notify clients, that at the time of his suspension there was no rule or order in effect in this department which required notification to be given in any particular manner, he was not thereby relieved of cooperating with petitioner in the examination which was ordered by this court. Not only must a suspended attorney furnish full, honest and forthright cooperation upon making application for reinstatement (cf. Matter of Tomicki, 33 A.D.2d 270, 307 N.Y.S.2d 60; Matter of Ushkow, 34 A.D.2d 159, 161, 310 N.Y.S.2d 378, 379; Matter of Hubscher, 25 A.D.2d 113, 267 N.Y.S.2d 465), but as to those matters of proof which are under his control, he bears the burden of furnishing satisfactory proof that he properly conducted himself and refrained from practicing law. (Cf. Anno: Reinstatement of Attorney, 70 A.L.R.2d 268, 297; Matter of Riley, 277 App.Div. 993, 100 N.Y.S.2d 89; Matter of Finn, 256 App.Div. 288, 10 N.Y.S.2d 29.) Indeed, the suspension order in this case specifically placed that burden upon respondent in so many words. Instead, respondent's proof, consisting of his own equivocal testimony and self-serving recapitulations and summaries, is anything but clear and convincing.

Similarly, with respect to the 15 charges in the supplemental petition that respondent failed to adequately protect his clients' interests at the time of his suspension, we cannot agree with the Referee that all clients were timely and adequately notified. On the contrary, the reasonable inference from the record is that respondent left the task of notification to others--e.g., his secretary and to newspaper reports of his suspension. Admittedly, many, if not all, of respondent's cases were on a deferred calendar either before or soon after commencement of his suspension, thereby subjecting them to the one-year strike-off rule (CPLR 3404; 22 NYCRR, § 861.17). Respondent's proof is to the effect that while some clients were notified orally and others in writing, nothing was done after his suspension had begun. Letters of notification were not produced; and stipulations of substitution, where produced, are dated long after the suspension had begun. In sustaining these charges we are mindful that the requirement for written notification of clients did not become effective in this department until after respondent's suspension. ^* We hold, nevertheless, that in the case of an attorney suspended for 18 months the duty to protect the interests of clients whose cases are on a deferred calendar...