In re Molinini-Rivera
Thomas J. Cahill, Chief Counsel, Departmental Disciplinary Committee, New York City (Jun Hwa Leе of counsel), for petitioner.
Dimitrios C. Fotopoulos for respondent.
OPINION OF THE COURT
Per Curiam.
Respondent Gaetanella Molinini-Rivera was admitted to the practice of law in the State of New York by the First Judicial Department on January 22, 1996. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.
On November 18, 2003, the Committee served respondent with a notice and statement of charges alleging, inter alia, that she misappropriated client funds from her IOLA account, failed to maintain a proper balance and proper records for that account, neglected an immigration matter entrusted to her, submitted false documents to a Small Claims Court Judge and made misrepresentations to the Committee during its investigation. Of the 16 total charges, respondent admitted liability with respect to six of them, but denied the others. The remaining charges and sanction were the subject of a hearing before a Referee.
The Referee‘s hearing addressed respondent‘s alleged misconduct in connection with two separate legal matters. In the first matter, a personal injury action in which respondent represented the plaintiff, respondent received a settlement check for $5,000 on July 11, 2000, which she deposited in her IOLA account. However, she did not inform the client that she had received the check and, instead, she made unauthorized withdrawals from the account for her personal use. After the Committee inquired about the matter 2½ years later, respondent wrote a check to the client for $1,835, withholding the remaining amount to satisfy a $1,500 doctor‘s lien and tо pay her $1,665 legal fee. Subsequently, she falsely testified during depositions before the Committee that she had previously paid the doctor‘s lien “in cash,” when in fact she had not done so. The client obtained a Small Claims judgment against rеspondent for the amount she had withheld to satisfy the lien.
Based on the above, the Referee found three violations of
In the second matter, respondent represented a client in an immigration matter, but terminated the representation after discovering the client‘s illegal purpose. Thе client demanded the return of the $2,000 retainer and, when respondent refused, he brought an action in Small Claims Court. To support her claim of legal services performed, respondent submitted an INS receipt as proof of аn application submitted on the client‘s behalf. The court found that the receipt had been altered, although it did not determine by whom, and the Referee concluded that respondent was “grossly negligent” in having used such a documеnt in court. Judgment was granted to the client in the Small Claims matter.
Based upon the above facts and respondent‘s admissions, the Referee found that respondent had lied about having made the INS application and acted deceitfully in submitting the INS receipt as evidence of the claimed filing, both in violation of
At a subsequent mitigation hearing, respondent testified that her conduct was the result of severe personal, emotional and financial problеms. Respondent testified that her former husband physically and verbally abused her throughout the course of their 16-year marriage, which ended in divorce in 1995. Although respondent suffered physical injury on many occasions, she did not seek an оrder of protection because she felt it was only a piece of paper that only would serve to further enrage her husband. Despite the abuse, respondent managed to attend law school part-time, work аs a legal secretary at night and still provide a home for her son and stepsons.
Respondent also pointed to her unfortunate professional association with a solo practitioner, who convinced her to jоin his
Respondent also offered evidence from a licensed psychologist who concluded that she suffered from multiple disorders, some of which were the result of the chronic аbuse and mistreatment she had received. Specifically, the psychologist‘s report stated that she had developed “Dependent Personality Disorder,” that left her vulnerable to being exploited and abused. Subsequently, her abusive relationships resulted in additional disorders, including “Post-Traumatic Stress Disorder and Major Depressive Disorder, recurrent, in partial remission.” The report further found a causal connection between these disorders and her рrofessional misconduct, in that the stress and anxiety she experienced from these disorders resulted in her behaving in a “self-defeating” way, whereby instead of managing stressful situations she would remain passive and capitulate to them.
The Referee, acknowledging this Court‘s precedents mandating disbarment in cases involving intentional conversion, recommended disbarment, albeit reluctantly. The Referee specifically found that “[m]itigation is shown in the form of respondent having been subjected to severe financial problems, abuse in the past by her then husband and more recently serious and unsettling controversy with a senior former colleague.” Indeed, the Referee strongly suggested that in light of rеspondent‘s demonstrated desire to improve her conduct and her efforts at restitution, a two or three-year suspension might be sufficient.
The Hearing Panel agreed with the Referee that respondent‘s mitigating circumstances еvoked sympathy, but likewise concluded that they were not sufficiently extraordinary to avoid disbarment. The Panel found no causal connection between respondent‘s problems with her husband and colleague and her misconduct, and was especially swayed by respondent‘s dishonesty with the Committee during its investigation.
The Committee now petitions the Court for an order pursuant to
This Court hаs consistently held that absent extremely unusual mitigating circumstances, an attorney‘s intentional conversion of client funds constitutes grave misconduct requiring disbarment (Matter of Wertis, 10 AD3d 141, 144 [2004]; Matter of Birnbaum, 308 AD2d 180, 183 [2003]; Matter of Neufeld, 268 AD2d 1, 3-4 [2000]). Contrary to the Hearing Panel‘s conclusion, however, we find that this is one of those rare cases where exceptional circumstances have been demonstrated.
Initially, although respondent has admitted the intentional conversion of client funds, this is not a case where respondent was guilty оf repeated acts of theft or systematic looting (compare Matter of Birnbaum, 308 AD2d 180 [2003]; Matter of Neufeld, 268 AD2d 1 [2000]). Rather, although the record is unclear as to the amount of withdrawals, it is clear that the conversions charged took place within a two-month period. Thus, insofar as disbarment is urged based on respondent‘s intentional theft, such theft was by all accounts an isolated occurrence (Matter of Albanese, 274 AD2d 284 [2000]; Matter of Munzer, 261 AD2d 87 [1999]). In addition, not to be ignored is that respondent has repaid the funds owed to this client and has exрressed remorse for her actions.
More significantly, we disagree with the Hearing Panel‘s conclusion that respondent failed to demonstrate any causal connection between her personal and psychologiсal problems and her subsequent misconduct. The abuse suffered by respondent at the hands of her former husband and colleague stands uncontradicted in the record. The Referee found these mitigating circumstances quite comрelling, and the Hearing Panel was not unsympathetic. Although the Hearing Panel apparently found these incidents temporally remote from the professional misconduct at issue, respondent‘s testimony and the psychologist‘s reрort make a convincing showing that the long-term effects of her chronic mistreatment played a significant role in her actions.
At the time respondent converted her client‘s funds, she was under tremendous financial pressure due to her contentious separation from her former colleague. She was unemployed, responsible for caring for her son, and was being harassed and stalked by said colleague. In addition, she was the subject of a deluge оf disciplinary complaints from former clients, many of
Of course, respondent‘s conversions and false statements to the Committee constitute seriоus misconduct, demanding a severe sanction. Respondent had a duty to properly maintain her IOLA account and to understand her obligations with respect to client‘s funds. However, given that her misconduct immediately followed a series of abusive relationships that gave rise to a diagnosed psychological condition, we conclude that such mitigation is sufficient under the circumstances to avoid the penalty of disbarment.
Accordingly, the petition of the Committee should be granted to the extent of confirming the findings of fact and conclusions of law of the Hearing Panel, except that the recommended sanction of disbarment is disaffirmed and respondent is suspended from practice as an attorney and counselor-at-law in the State of New York for a period of five years.
Friedman, J.P, Ellerin, Williams, Gonzalez and Catterson, JJ., concur.
Respondent suspended from the practice of law in the State of New York for a period of five years, effective November 14, 2005, and until further order of this Court. Motion No. 2910 dismissed as moot.