In re Custer — 39 A.D.2d 437

Majority

p. 437

In the Matter of William B. Custer, an Attorney, Respondent. New York State Bar Association, Petitioner.

Fourth Department,

September 21, 1972.

Frederick G. Stimmel (George B. Burke of counsel), for petitioner.

Charles 8. Desmond for respondent.

Respondent, admitted to practice in New York State on April 2,1962, has been charged by the New York State Bar Association with commingling client’s funds with his own and using client’s funds for his own personal needs on four separate occasions during the period 1968-1969. Such com

p. 438

mingling, admitted by respondent constitutes a violation of canon 11 of the Canons of Professional Ethics, now Code of Professional Responsibility EC 9-5; DE 9-102 (A) (B).

By way of mitigation respondent submitted medical proof of an incapacitating emotional illness during this period. We find that such proof respecting respondent’s medical and psychiatric condition sufficiently establishes, in part, mitigating circumstances with regard to his conduct. We further note that in each instance all of the commingled proceeds were repaid with interest and that in no case did respondent receive any legal fees.

We conclude that respondent should be suspended from the practice of law for a period of one year and until the further order of this court.

Goldman, P. J., Del Vecchio, Moule and Cardamons, JJ., concur. Henry, J., dissents in part as follows: In my opinion respondent should be suspended from practice for a period of two years.

Order of suspension entered.