In re Cleere — 39 A.D.2d 132

Majority

p. 132

In the Matter of Thomas J. Cleere, an Attorney, Respondent. Ontario County Bar Association, Petitioner.

Fourth Department,

May 25, 1972.

William J. McDonald for petitioner.

Thomas J. Cleere, respondent in person.

Respondent was admitted to the Bar on December 21, 1932 in the Second Judicial Department. On December 9, 1969 he accepted $400 from a Mrs. Sullivan to apply on his $600 fee for services to be rendered in the defense of her two ■sons who were in jail on criminal charges. The services rendered by respondent consisted of conferences with an Assistant District Attorney and with one of the eons. About a week thereafter Mrs. Sullivan, after attempting unsuccessfully to locate respondent, arranged for the defense of her sons by attorneys supplied by the Legal Aid Society, and on December 22, 1969 she .signed an affidavit asking for the return of the $400 payment. It was respondent’s duty to refund such part of the retainer as had not been earned (Canons of Professional Ethics, Canon 44; Code of Professional Responsibility, EC 2-32). Although more than two years have elapsed since the refund was demanded, he has failed to return any part thereof.

It does not appear that respondent has ever been the subject of any other charge except one concerning a $35 fee for services and disbursements in which professional misconduct on his part was not established.

p. 133

Respondent’s failure to refund any part of the retainer requires disciplinary action for which he should he suspended for a period of three months.

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

Order of suspension entered.