Matter of Carmel , 154 A.D.3d 72 ( 2017 )

Matter of Carmel (2017 NY Slip Op 06180)

Matter of Carmel

2017 NY Slip Op 06180

Decided on August 16, 2017

Appellate Division, Second Department

Per Curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 16, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
REINALDO E. RIVERA
MARK C. DILLON
RUTH C. BALKIN
JOHN M. LEVENTHAL, JJ.

[*1]In the Matter of Mark Carmel, an attorney and counselor-at-law. (Attorney Registration No. 2353639)

The respondent, Mark Carmel, was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 24, 1988. By order to show cause dated April 6, 2017, this Court directed the respondent to show cause why discipline should or should not be imposed on him in this State pursuant to 22 NYCRR 1240.13, based on the misconduct underlying the discipline imposed by an order of the Supreme Court of Florida dated July 28, 2016.

Faith Lorenzo, Hauppauge, NY (Robert H. Cabble of counsel), for the Grievance Committee for the Tenth Judicial District.

Mark Carmel, West Palm Beach, Florida, respondent pro se.

PER CURIAM.

OPINION & ORDER

By order dated July 28, 2016, the Supreme Court of Florida publicly reprimanded the respondent, and entered a judgment against the respondent in favor of The Florida Bar for costs in the sum of $1,781.61. The order was predicated on a complaint filed against the respondent by The Florida Bar on January 7, 2016, a document entitled "Conditional Guilty Plea for Consent Judgment" (hereinafter the consent judgment) dated June 3, 2016, and a Referee's report dated June 28, 2016, recommending acceptance of the consent judgment.

As revealed in the consent judgment, the complainant hired the respondent, a New York licensed attorney, to help obtain a visa for his girlfriend through a company called Intrax. After the respondent did some work, the complainant decided not to pursue the visa and requested a refund from the respondent. The respondent received a refund from Intrax and mistakenly deposited the check into his law office bank account. The respondent has paid back the complainant the money refunded from Intrax. The respondent is not licensed to practice law in Florida.

By virtue of the foregoing, the respondent admitted that he violated Rules Regulating the Florida Bar rule 5-1.1(a)(1) ("A lawyer shall hold in trust, separate from the lawyer's own property, funds and property of clients or third persons that are in a lawyer's possession in connection with a representation.") As to the sanction, the respondent agreed to the imposition of a public reprimand and that he would pay The Florida Bar's costs.

Upon review, the Referee appointed to conduct the Florida disciplinary proceeding issued a report dated June 28, 2016, in which he recommended that the respondent be found guilty of Rules Regulating the Florida Bar rule 5-1.1(a)(1) and noted the following mitigating factors: the respondent's cooperation with the disciplinary board, expression of remorse, and unblemished disciplinary record. As to the appropriate disciplinary sanction, the Referee recommended a public reprimand and payment of The Florida Bar's costs.

By order dated July 28, 2016, the Supreme Court of Florida approved the uncontested [*2]Referee's report, publicly reprimanded the respondent, and entered a judgment against the respondent in favor of The Florida Bar for costs in the sum of $1,781.61.

In his response to this Court's order to show cause, the respondent requests that discipline not be imposed upon him in New York, as he "was unable to hire an attorney, and was not given proper notice nor the meaningful opportunity to plead his case and disprove [c]omplainant's unsubstantiated allegations." The respondent explains that while the disciplinary complaint in Florida was pending, he was unable to reply in a timely manner due to his need to assist his elderly father through a medical crisis, which included multiple trips to New York. The respondent contends that he did not have the financial ability to hire a lawyer, as he needed all available funds to travel to see his father. Consequently, he claims that in June 2016, he accepted the plea offered by the Florida Grievance Committee even though the plea agreement "contained many incorrect facts, and unfounded allegations." However, to the extent that the respondent seeks to challenge the findings in the Florida proceeding, he is not permitted to do so in a reciprocal disciplinary proceeding (see Matter of Miniter, 129 AD3d 169; Matter of Kersey, 27 AD3d 118). Moreover, we find that the respondent had notice and an opportunity to be heard in the Florida proceeding, and by virtue of his consent, there was sufficient proof to establish his misconduct.

Accordingly, we find that the imposition of reciprocal discipline is warranted based on the findings of the Supreme Court of Florida, and we conclude that the appropriate sanction is a public censure.

ENG, P.J., RIVERA, DILLON, BALKIN and LEVENTHAL, JJ., concur.

ORDERED that pursuant to 22 NYCRR 1240.13, the respondent, Mark Carmel, is publicly censured.

ENTER:

Aprilanne Agostino

Clerk of the Court