In re Smith

The respondent, James Allen Smith, was admitted to practice in this Department on April 3, 1968. The petition of Elton Gamin and Dorothy Leigh, as executors of the estate of Julia D. Gamin, deceased, charged respondent with misappropriating and wrongfully withholding funds belonging to the Gamin estate. By order of this court dated October 27, 1972 this petition was. personally served upon the respondent Smith. In an amended answer, the respondent admits that there is-due the estate of Julia D. Gamin the sum of $14,357.28.

The evidence before us reveals that upon the sale of the real property in the estate, a check in the amount of $17,300 was *33turned over by the executors of the Gamin estate to respondent Smith to be deposited by him in the estate checking account. Respondent deposited it instead in his own trust account. Later he withdrew these funds from his trust account to satisfy existing obligations and to meet expenses which he had incurred in establishing a new law office. None of the money admitted by respondent to be owed to petitioners as executors of the Gamin estate has been repaid nor does there appear any reasonable likelihood that there are funds available to respondent to repay these funds which he misappropriated and wrongfully withheld from petitioners. In fact no mitigating circumstances were found in the record before us.

Such conduct constitutes violations of Disciplinary Rules (DR 1-102, subd. [A], pars. [1], [4]; DR 9-102, subd. [A]; DR 9-102, subd. [B], par. [4]) of the Code of Professional Responsibility.

For his professional misconduct the respondent should be disbarred.

Goldman, P. J., Del Vecchio, Wither, Cardamons and Henry, JJ., concur.

Order of disbarment entered.