In re Levine
- Reporters:
- , ,
OPINION OF THE COURT
Per Curiam.Thе respondent was admitted to practice by the Apрellate Division, Second Department, at a term of that court on *327November 7, 1928, under the name of Morris S. Levine. The petition sets forth a single charge of professional misconduct against respondent, which was in substance admitted by respondent in his answer. The Referee recommends that respondent be censured. Presenting the only issue before us рetitioner, moving to confirm the report, urges that respоndent be suspended.
The essential facts bearing on the misconduct are these.
On or about May 2, 1974, respondent recеived the sum of $3,425 from a client, to be held in escrow, pursuant tо the terms of an elevator repair contract. On or about October 8, 1974, respondent appropriatеly applied $1,000 of the escrow funds and thereafter converted the remaining $2,425 to his own use.
Respondent contendеd, apparently without contradiction, that over the relevant period of time he had rendered legal serviсes to the complainant in connection with the repair contract and other matters, for which he recеived no compensation, and the value of which was substantially in excess of the misapplied escrow funds.
The Referee also notes that although the elevator work hаd stopped by early 1975, the complainant made no dеmand for the return of the balance of the escrow funds fоr almost two years.
As part of respondent’s case, three documents were submitted. Exhibit A is a letter to the complаinant, dated February 28, 1978, offering him a confession of judgment with terms оf payment. Exhibit B is a Federal tax lien. Exhibit C is a Federal levy on thе tax lien.
The evidence clearly sustains the charge оf misconduct. Respondent’s claim that he had performеd legal services for his client without compensation in excess of the amount converted does not, of course, justify his action.
As to the appropriate sanction, we note the following mitigating circumstances.
Respondent is 73 years of age, a member of the Bar for almost 50 yeаrs with no other blemish on his record. He suffered from serious, painful health problems for some years prior to the incidеnt in question and these have intensified. Although the failure to make restitution is disturbing, it is clear that respondent is in severe financiаl straits. Finally, it is apparent, as found by the Referee, that rеspondent acted in *328the sincere belief that he had at least a moral claim to the money in question.
Notwithstanding these extenuating facts, the serious misconduct involved requirеs a more severe sanction than the censure recommended by the Referee.
Accordingly, respondent is susрended for a period of three months.
Murphy, P. J., Kupferman, Birns, Silverman and Sandler, JJ., concur.
Motion to confirm Referee’s report and for other relief granted and respondent suspended from practice as an attorney and counselor at law in the State of New York for a period of three months effective as of February 5, 1979.