Charm Insufficient
Disbarment imposed by the New York Appellate Division for the First Judicial Department where the referee observed
On the issue of mitigation, the Referee noted that respondent did not call any witnesses, nor did she submit any character letters, and he opined that “[i]n her favor, respondent was pleasant and even charming [b]ut that was pretty much all.”
The conduct
The facts are undisputed. In or about September 2014, respondent was retained to represent a client who had been charged with burglary in the second degree. It was alleged that the client, on a tourist visa to the United States from Martinique, had traveled by bus to Montreal and on the way back to New York City, he departed the bus and was arrested after he broke into a private home in upstate New York and went to sleep.
The client’s sister had previously used respondent’s services and retained her to represent the client. Respondent charged the client a flat fee of $10,000, plus travel expenses, of which all but approximately $200 was paid. Respondent negotiated a plea agreement whereby Baldara pled guilty to the reduced charge of burglary in the third degree and was sentenced to time served and fined $1,375 which was to be paid within one year. After his release from prison in December 2014, the client returned to Martinique.
On July 24, 2015, respondent’s client wired her $1,375 to pay his fine which funds were deposited into respondent’s operating/business account. During the period at issue, respondent maintained an escrow account at Citibank. Respondent failed to promptly pay the fine. Instead, she used $827 of this client’s funds to pay for business and personal expenses unrelated to his case. Over one year later, in September 2016, after the client complained to AGC, respondent sent a certified check in the amount of $1,375 to the Warren County Clerk to satisfy his fine.
Based on the documentary evidence, the Referee found respondent intentionally converted and misappropriated client funds in violation of rules 1.15(a), 8.4(c), and 8.4(h); by depositing her client’s funds into her operating/business account she failed to segregate client funds, as well as, commingled client and business funds in violation of rules 1.15(a) and 1.15(b); by not paying her client’s fine until September 2016, respondent failed to act with reasonable diligence and promptness and intentionally failed to carry out a contract of employment in violation of rules 1.3(a) and 1.3(c); and by falsely affirming in her 2015 OCA registration that she was in full compliance with rule 1.15 when in fact she had engaged in the escrow related misconduct at issue, she violated rule 8.4(c).
During the sanction hearing respondent testified that she would provide documentation showing that she had been hospitalized at the time of the liability hearing, as well as, documents pertaining to her client’s criminal case, but she never did so.
As to the conduct at issue, respondent admitted that she failed to deposit her client’s funds into her escrow account, as she should have done, and improperly used the funds without permission to meet her business and personal expenses which were unrelated to his case because she “was juggling too much at the time” and not “paying proper attention to what I should have at the time.”
Respondent attributed her delay in paying her client’s fine to the fact that he did not include the $15 wire transfer fee with his $1,375 payment, and she declined to advance such because he was purportedly hostile towards her. However, she ultimately paid the fine in September 2016 after he filed his complaint against her so as to bring their relationship to a close.
(Mike Frisch)