
    [780 NYS2d 500]
    In the Matter of Clement M. Soviero, an Attorney, Resignor.
    Second Department,
    August 9, 2004
    APPEARANCES OF COUNSEL
    
      Clement M. Soviero, Kings Park, resignor pro se.
    
      Robert P. Guido, Syosset (Stacey J. Sharpelletti of counsel), for Grievance Committee for the Tenth Judicial District.
   OPINION OF THE COURT

Per Curiam.

Clement M. Soviero has submitted an affidavit dated March 26, 2004, wherein he tenders his resignation as an attorney and counselor-at-law (see 22 NYCRR 691.9). Mr. Soviero was admitted to the bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 12, 1989.

Mr. Soviero has been informed by the Grievance Committee that evidence of his professional misconduct has been adduced by its ongoing investigation and that he would be the subject of charges in a disciplinary proceeding to be recommended to the Court. Mr. Soviero admits that in May 2001, in his capacity as the seller’s attorney, he received from the proposed purchaser signed contracts of sale and a down payment check in the amount of $31,500 payable to him as escrowee. Pursuant to the contract of sale, the down payment was to be held in escrow until the closing or the termination of the contract. Mr. Soviero failed to turn over any of the $31,500 when another attorney assumed representation of the seller prior to the closing or at the closing on July 23, 2001. Instead, he used it for personal expenses. The transaction concerned Mr. Soviero’s former marital residence, which had been deeded to his then-wife in March 2001.

Mr. Soviero further admits that he was found in contempt of court more than once for his failure to pay child support, resulting in his incarceration and the suspension of his driver’s license. Mr. Soviero also failed to post the undertaking ordered by the Family Court, Suffolk County.

Mr. Soviero acknowledges his inability to defend himself on the merits against any disciplinary charges and avers that his resignation is freely and voluntarily tendered and that he has not been subjected to coercion or duress by anyone.

Mr. Soviero has discussed his decision to resign with persons whose advice and counsel he respects. He is fully aware of the implications of submitting a resignation, including being barred by Judiciary Law § 90 from seeking reinstatement for a period of at least seven years.

Mr. Soviero avers that his resignation is submitted subject to any application which could be made by the Grievance Committee to direct him to make restitution and/or to reimburse the Lawyer’s Fund for Client Protection, pursuant to Judiciary Law § 90 (6-a) (a). He acknowledges the continuing jurisdiction of the Court to make such an order and specifically waives the opportunity afforded him by Judiciary Law § 90 (6-a) (f) to be heard in opposition thereto.

The Grievance Committee urges acceptance of the proffered resignation.

Inasmuch as the proffered resignation complies with all appropriate Court rules, it is accepted, and effective immediately, Clement M. Soviero is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law.

Prudenti, EJ., Ritter, Santucci, Florio and Goldstein, JJ., concur.

Ordered that the resignation of Clement M. Soviero is accepted and directed to be filed; and it is further,

Ordered that pursuant to Judiciary Law § 90, effective immediately, Clement M. Soviero is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

Ordered that Clement M. Soviero shall promptly comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

Ordered that pursuant to Judiciary Law § 90, effective immediately, Clement M. Soviero is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

Ordered that if Clement M. Soviero has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and he shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10 (f).  