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According to the evidence before the referee at the Fourth Department,
petitioner had been acquainted with Edward Antoon and his wife Edna for
some fifty years before Edward's
death on September 26, 1989. Petitioner had drafted Edward's will and
was retained as attorney for his estate shortly after Edna's appointment
as executrix. However, there was never a
retainer agreement formalizing petitioner's relationship with the estate
or establishing a fee for his services. Within a few weeks of her appointment
as executrix, Edna Antoon moved to Ohio, leaving petitioner with a general
power of attorney. Acting as attorney for the estate, petitioner opened
a bank account in the estate's name and retained exclusive control over
the checks and check register. Between October 30, 1989 and April 14, 1993,
some 50 checks totaling $399,320 were drawn on the estate's account and
made payable to petitioner. Ofthese, only the first 17 (totaling $174,520)
were signed by Edna Antoon and some of those had been pre signed in blank.
Between April 4, 1991 and March 13, 1992, petitioner used his power of
attorney to issue an additional 18 checks (totaling $106,200) to himself.
During the same period, other checks were drawn against the estate, but
all of these were signed by Mrs. Antoon herself.
Mrs. Antoon died on March 16, 1992, and petitioner became the successor
executor pursuant to the terms of Edward Antoon's will. After Mrs. Antoon's
death, petitioner issued
another 15 checks (totaling $118,600) to himself. Petitioner characterized
these payments as attorney's fees and executor's commissions, although
he never obtained court approval for them as required by SCPA 2210, 2111,
2310 and 2311, nor did he file the affidavit of fees and commissions that
is required by the Uniform Rules for Surrogate's Court (22 NYCRR 207.60[a],
[e]). With regard to his other reporting obligations, on June 25, 1990
petitioner submitted a Petition to Determine Estate Tax on June 25, 1990
in which he indicated that his total attorney's fee to complete the estate
would be $156,575, a figure far below the $399,320 he actually received.
He stated in that document that his fees for 1990 and 1991 would be $99,000
and $10,555 respectively, although he ultimately paid himself $120,000
and $82,500 for those years. The Petition, along with a conforming Declaration
of Executor's Commissions and Attorney's Fees, was submitted to the Internal
Revenue Service. During the disbarment proceeding in the Fourth Department,
petitioner acknowledged that he was experiencing
financial difficulties and that he had used the money he took from
the estate's bank account for his personal and business expenses. Petitioner
also acknowledged that he had not provided any statements or itemized bills
for his services, nor did he ever discuss with Mrs. Antoon any of the specific
checks he had issued to himself. Petitioner claimed, however, that he had
had a general conversation with Mrs. Antoon in June of 1990 in which she
indicated to him that the attorney's fee described in the estate's tax
submissions was "not very much" and that she wanted him to be paid more.
The referee found incredible petitioner's claim that Edna Antoon had
intended and specifically authorized the more than $200,000 "fee" he had
appropriated in addition to the
$156,000 he declared on the Petition to Determine Estate Tax. Adopting
the referee's conclusion that petitioner had misappropriated estate funds
and had engaged in conduct involving
dishonesty, the Appellate Division issued an order disbarring petitioner
for conduct adversely reflecting on his fitness to practice law (219 AD2d
156). Petitioner did not attempt to
appeal from this determination.
Following the Appellate Division's decision, the Commission on Judicial Conduct charged petitioner with judicial misconduct for his mishandling the Antoon estate. In response,petitioner filed a verified answer admitting some of the Commission's allegations and denying others. Relying on the decision in the disbarment proceeding and petitioner's failure to dispute the salient factual allegations, the Commission's counsel moved for a summary determination pursuant to section 7000.6(c) of the Commissioner's Operating Procedures and Rules (22 NYCRR 7000.6[c]). Petitioner filed a sworn statement in opposition, but did not request oral argument. Instead, without raising any new factual matters, petitioner merely made a series of conclusory arguments concerning the Appellate Division referee's credibility determination.
The Commission summarily determined that the misconduct charge against petitioner had been established. On April 2, 1997, the Commission concluded that petitioner should be removed from judicial office. The Commission inferred, based on the Declaration of Executor's Commissions and Attorney's Fees that Mrs. Antoon signed, that petitioner's authorized fee had been $156,575, that petitioner had paid himself an additional $124,145 without Mrs. Antoon's knowledge or consent during her lifetime and, finally, that petitioner had taken another $118,600 after she died without obtaining the necessary court permission. Petitioner's actions, in the Commission's view, constituted a "gross" abuse of trust, demonstrating that he "lacks the integrity to sit on the bench and judge the conduct of others."
Initially, we reject petitioner's arguments that theCommission acted
inappropriately when it summarily determined the judicial misconduct charge
against him on the basis of the
findings in the prior attorney disciplinary proceeding. As we have
previously stated, "[t]he statutory requirement authorizing the commission
to make a determination after a hearing does not require the commission
to go through a meaningless formal hearing where no issue of fact is raised
( Matter of Petrie v Commission on Judicial Conduct, 54 NY2d
807, 808).
Neither the "broad" powers ostensibly given to him in the Antoon will
nor the purported wish of Mrs. Antoon that petitioner be "well paid" for
his services justifies the unauthorized and unreported removal of large
sums of money from Edward Antoon's estate. Further, we are not persuaded
by petitioner's contention that the Declaration of Executor's Commissions
and Attorney's Fees he filed reflected only the amounts that had been deducted
on the estate's income tax returns and was therefore not actually false.
Notwithstanding petitioner's irrelevant discussion about the nature of
the form, the fact remains that the Declaration was the only information
provided to the Surrogate's Court as to petitioner's fee and, as
such, was misleading. Further, the Declaration, which was co signed
by Ms. Antoon, was the only evidence of the fee amount that the executrix
had known of and approved, leaving the record bare of support for petitioner's
present claim that she had agreed to a considerably higher amount (
see, Matter of Boulanger,61 NY2d 89).
The evidence before the Commission, consisting principally of the record
of the disbarment proceeding, provides convincing proof that petitioner
helped himself to more than
$200,000 of estate funds without either notifying or obtaining the
permission of the executor or the Surrogate. His abuse of the trust reposed
in him by the Antoons and his concealment of his defalcation make his nonjudicial
misdeeds at least as sanctionable as those of the Village Court Justice
whose conduct as an executor led to his removal in Matter of Boulanger
( supra). Accordingly, the determined sanction of removal should
be accepted, without costs.
* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and Hon. W. Joseph Embser removed from the office of Justice of the Wellsville Town Court, Allegany County. Opinion Per Curiam. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur. Judge Wesley took no part.
Decided November 20, 1997