In re Casey
Opinion of the Court
The Committee on Professional Standards moves to confirm in part and disaffirm in part the report of the referee, which sustained three charges of professional misconduct against respondent and rejected two other charges. Respondent was admitted to the practice of law by this court on October 18, 1954. The charges of professional misconduct arise out of respondent’s improper handling of three estates and failure to cooperate with the Committee’s investigation into his conduct.
Charge I, sustained by the referee, accuses respondent of neglecting the estate of Marcella M. Riley in violation of the Code of Professional Responsibility, DR 6-101 (A) (3). The nine specifications thereunder allege that respondent: (1) failed to file a probate petition until almost one year after Riley’s death; (2) failed to timely prepay estate taxes resulting in an assessment of penalties and interest and failed to file an estate tax
Charge II accuses respondent of advancing himself attorney’s fees from Riley estate funds without court approval in violation of the Code of Professional Responsibility, DR 1-102 (A) (5), which states that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. The referee, although noting court approval for such advances is customary in Otsego County Surrogate’s Court and correctly noting that such approval is required by SCPA 2111 when, as in the instant matter, the attorney is the sole fiduciary of the estate, nevertheless recommended dismissal of this charge, concluding that there was no prejudice to the administration of justice because the estate was not adversely affected monetarily and the Surrogate did not censure respondent for the advances. We grant the Committee’s motion to disaffirm the referee’s report dismissing charge II, and we sustain the charge. In our view, the improper advances which occurred here constitute prejudice to the administration of justice. The advances depleted estate funds insofar as the withdrawals exceeded the Surrogate’s award of attorney’s fees to respondent and appear to have necessitated that respondent deposit personal funds in the estate account to cover part of the payments due an estate beneficiary. Moreover, violation of a statute, such as SCPA 2111, which is designed to protect estate assets from depletion by attorneys and to regulate the conduct of attorneys who are estate fiduciaries, cannot be countenanced since attorneys are held to the strictest observance of fiduciary responsibility.
Charge III accuses respondent of neglecting the estate of Stanley S. Stocking. Three specifications thereunder allege that
Charge IV, sustained by the referee and factually uncontroverted by respondent, accuses respondent of neglecting the estate of Simon W. Acoutin by failing to prepare an estate tax return or to arrange for the prepayment of taxes. We grant the Committee’s motion to confirm the referee’s report sustaining this charge.
Charge V, setting forth four specifications, accuses respondent of failing to timely cooperate with the Committee in its investigation of inquiries with respect to the Riley and Acoutin estates and one other matter. The referee sustained this charge, the specifications of which are essentially admitted by respondent, and we grant the Committee’s motion to confirm charge V.
The above-sustained charges demonstrate a disturbing pattern of neglect and incompetence on respondent’s part. It invited the strong condemnation of the Surrogate and resulted in real harm to at least one estate beneficiary. Charge V also demonstrates respondent’s failure to fulfill his obligation to cooperate
Respondent suspended for a period of one year, the date of commencement to be fixed in the order to be entered hereon. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.