In re Levor — 169 A.D. 642

Majority

p. 642

In the Matter of Harry Levor, an Attorney.

First Department,

November 5, 1915.

Headnote

Attorney at law suspended — delay in paying moneys collected for client.

Attorney at law suspended for failing for two months to turn over to a client moneys received by him in settlement of a claim for personal injuries.

The final payment of the money does not condone the offense of withholding it where the payment was made following disciplinary proceedings taken by the Bar Association.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

George T. Hoar of counsel [Einar Chrystie, attorney], for the petitioner.

Harry Levor, respondent, in person.

The respondent is charged by the Association of the Bar of the City óf New York with having converted to his own use certain funds the property of a client, Mrs. Bosie Levy. The facts are very simple and are undisputed.

On November 14, 1912, Mrs. Levy was knocked down and injured by a car belonging to the New York Railways Company. She retained the respondent to procure compensation from the railway company. He opened negotiations with the company which resulted in a settlement of the claim for the sum of $100, which was paid to respondent on December 28, 1912, by a check payable to Rosie Levy or Harry Levor, attorney. He indorsed this check and deposited it to his own credit in his own bank account in the United' States Mortgage and Trust Company. This account he ultimately closed out before he had made any remittance to his client. At the time of closing his account he had to his credit a less sum than what

p. 643

he owed his client, and when he finally settled with her he had no bank account at all.

Twice the client’s daughter, Emily Levy, wrote respondent in her mother’s behalf asking whether the settlement had been carried through, but respondent failed to answer either letter although he does not deny having received them. Miss Levy also called at respondent’s office, but was informed that he was not in. Finally, after these unsuccessful attempts to obtain information from respondent, she called at the office.of the railway company and there learned that the claim had been settled and the money paid on December 28, 1912. She thereupon complained to the grievance committee of the Association of the Bar and notice was given to the respondent of her complaint. After the receipt of this notice he sent the client, Mrs. Levy, a money order for sixty-six dollars and sixteen cents, retaining the balance (thirty-three and one-half per cent) for his fee. This was on February 26, 1913, two months, less two days, after the receipt of the money by him. During the intervening period he had made no effort to see his client except to send her a misdirected letter, which was returned to him. He makes no valid excuse for this unreasonable delay except to plead that he was busy with other matters and had not agreed with his client as to his fee. Upon this state of facts the learned official referee has reported that the charge against respondent has not been sustained, being evidently impressed with the bearing and demeanor of the respondent upon the reference.. We find ourselves unable to take so lenient a view of the respondent’s acts.

That the charge of conversion was technically made out is rendered clear by the respondent’s own testimony. He received his client’s money, deposited it in his own bank account, drew it out and used it for his own purposes and until spurred to activity by the charges made against him took no steps toward paying his client what was due her, and showed no disposition or intention of making such payment. This was clearly professional misconduct, and we cannot accept the fact of payment under the spur of disciplinary proceedings as a satisfactory condonation of his offense. We regret to differ from the learned and careful official referee, and should hesitate to do

p. 644

so if there were any disputed questions of fact involved. But upon the conceded facts - we are compelled to find that the charge of unprofessional conduct has been sustained. Our conclusion is that the respondent should be suspended from practice for the term of one year, with leave to apply for reinstatement at the expiration of that term upon proof of h'is compliance with the conditions to be incorporated in the order to be entered hereon.

Present —Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Respondent suspended for one year. Order to be settled on notice.