Matter of Brown

• Decision Date: 13 April 2006
• Docket Number: M-79.
• Citation: 814 N.Y.S.2d 31,31 A.D.3d 46,2006 NY Slip Op 02820
• Parties: In the Matter of BERTRAM BROWN, a Suspended Attorney, Respondent. DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, Petitioner.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 46

814 N.Y.S.2d 31

2006 NY Slip Op 02820

In the Matter of BERTRAM BROWN, a Suspended Attorney, Respondent DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, Petitioner.

M-79.

Appellate Division of the Supreme Court of the State of New York, First Department.

April 13, 2006.

Thomas J. Cahill, Chief Counsel, Departmental Disciplinary Committee, New York City (Kevin P. Culley of counsel), for petitioner.

Bertram Brown, respondent pro se.

OPINION OF THE COURT

Per Curiam.

Respondent Bertram Brown¹ was admitted to the practice of law in the State of New York by the Second Judicial Department on December 15, 1954. At all times relevant to this proceeding, he maintained an office for the practice of law within the First Judicial Department.

By order entered September 27, 2005, effective immediately, this Court suspended respondent from the practice of law pursuant to 22 NYCRR 603.4 (e) (1) (ii) and (iii) on the grounds he made substantial admissions under oath that he commingled and converted client funds, failed to maintain bookkeeping records, and failed to comply with lawful demands of the Committee's investigation (23 AD3d 56 [2005]).

The Disciplinary Committee now seeks an order pursuant to Judiciary Law § 90 (2), disbarring respondent for willful failure to comply with the September 27, 2005 order of suspension in violation of Judiciary Law § 486 insofar as he has engaged in the unauthorized practice of law, continued to maintain client/third-party escrow funds incident to his practice of law, converted additional third-party funds after the effective date of his suspension, and has otherwise failed to comply with the order of suspension by conveying the impression that he is a practicing attorney.

This Court's order of suspension was entered on September 27, 2005, and was served via overnight mail on respondent's then counsel in the afternoon of September 28th. On September 30th, respondent appeared before New York Civil Court Judge Jeffrey Oing, on behalf of his client Third Avenue Wireless, Inc. According to an affidavit from respondent's adversary, respondent appeared that day and made an application for an adjournment so that he could prepare and submit opposition papers to a motion, and entered into a stipulation adjourning the motion for that purpose.

On October 3, 2005, the adversary telephoned respondent asking him if he was suspended. Respondent initially did not admit to it, indicating that the Committee was only looking into allegations, but when pressed, finally admitted he was indeed suspended. On or about October 17, 2005, respondent served the Committee with his affidavit of compliance with the order of suspension as required by 22 NYCRR 603.14 (a) (1), swearing therein that he had fully complied with the provisions of the suspension order and the rules.

Nevertheless, two days later, on October 19, 2005, respondent again appeared in court on behalf of a client, Virginia Khublall, this time before Queens Supreme Court Justice Allan B. Weiss. Prior to the call of the calender, respondent engaged in negotiations with his opponent. Respondent then appeared on behalf of the plaintiff never alerting the court or his adversary to the fact that he was interimly suspended. While respondent eventually advised opposing counsel that he had to be substituted because of a disciplinary "problem," he did not do so until Friday, October 21, during a settlement discussion. To date, respondent has never advised counsel that he has been suspended.

On October 25, 2005, respondent was deposed by the Committee during which he claimed that he was not practicing law in the Khublall matter because he had informed his client that he had been suspended before the court appearance and only appeared in court to obtain an adjournment. In support of his testimony, respondent submitted to the Committee a fax containing unsworn statements from plaintiff Virginia Khublall dated October 21, 2005. In the fax, Ms. Khublall does not state that respondent advised her that he was suspended, as required by 22 NYCRR 603.13 (d) (1) but, rather, that because of some "serious professional problems" he was no longer able to "act as a lawyer" and he would find another lawyer for her.

The Committee now argues that given the foregoing, respondent's affidavit of compliance with the suspension order is false. In particular, the Committee asserts that respondent did not comply with that provision of the rule that requires him to inform all of his clients of his suspension prior to October 17, 2005. Similarly, in the Third Avenue Wireless, Inc. matter, it appears respondent did not notify that client of his suspension until October 18th, contrary to his attestations in his October 17, 2005 affidavit of compliance. Thus, the Committee asserts, and we agree, that respondent was actively engaged in the practice of law on September 30 and October 19, while under suspension.

The Committee contends that respondent further violated the terms of this Court's suspension order by continuing to maintain third-party funds in his IOLA account after the effective date of his suspension and by failing to notify interested parties in a real estate transaction that he had been suspended. Most disturbing to the Committee is respondent's apparent conversion of these funds for his own use.

Specifically, on November 2, 2005, Andrea Conyers filed a complaint with the Committee alleging that respondent, among other things, had been holding a real estate buyer's down payment in the amount of $30,000 in his IOLA account since November 2004. In his December 14, 2005 answer to the Conyers complaint, respondent admitted to the Committee that he had held the $30,000, that it remained intact, and that it had been returned to the buyer's attorneys. However, respondent's bank records reflect that from October 14 through November 7, 2005 (after the effective date of his suspension), respondent made six withdrawals to himself totaling $24,000, causing the balance in his IOLA account to fall below the amount required to be maintained on behalf of that third-party buyer. The Committee has verified with the attorneys for the buyer that respondent has since returned these funds to them via an IOLA check dated December 9, 2005.

In the meantime, while the Committee investigated the Conyers complaint, respondent executed an affidavit of resignation dated November 22, 2005. The affidavit was based on the misconduct which led to his interim suspension as well as the allegations that he engaged in the unauthorized practice of law on September 30 and October 19, 2005. Respondent averred that if charges were brought predicated upon all of the "above-described misconduct under investigation," he could not successfully defend himself on the merits against such charges. However, because respondent refused to acknowledge in his resignation the allegations of misappropriation in the Conyers matter, the Committee determined that it would not recommend to this Court to accept respondent's resignation. Instead, it now seeks respondent's disbarment.

In this regard the Committee now contends that in light of the incontestable evidence of respondent's open and notorious engagement in the unauthorized practice of law, respondent should be immediately disbarred. Not only did respondent willfully disobey the suspension order by not properly disposing of third-party funds in his IOLA account, but by committing further grave misconduct in converting those funds for his own personal use. Lastly, the Committee avers that engaging in the practice of law while under suspension is unlawful (Judiciary Law § 486), and warrants immediate disbarment (Matter of Goldman, 24 AD3d 29 [2005], lv dismissed 6 NY3d 771 [2006]; Matter of Gill, 3 AD3d 109 [2004]).

Respondent denies that he willfully engaged in the unauthorized practice of law on September 30 and October 19, 2005, he claims he did not misappropriate third-party funds, and he should be permitted to resign pursuant to 22 NYCRR 603.11.

Specifically, respondent claims that when he appeared...