
    [780 NYS2d 921]
    In the Matter of Elmina M. Hilaire (Admitted as Elmina Merle Hilaire), an Attorney, Resignor.
    Second Department,
    August 23, 2004
    APPEARANCES OF COUNSEL
    
      Elmina M. Hilaire, Westbury, resignor pro se.
    
      Robert P. Guido, Syosset (Mary J. Lieblang of counsel), for Grievance Committee for the Tenth Judicial District.
   OPINION OF THE COURT

Per Curiam.

Elmina M. Hilaire has submitted an affidavit dated December 10, 2003, wherein she tenders her resignation as an attorney and counselor-at-law (see 22 NYCRR 691.9). Ms. Hilaire was admitted to the bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 7, 1990, under the name Elmina Merle Hilaire.

Ms. Hilaire has been informed by the Grievance Committee that it has adduced evidence of professional misconduct in its ongoing investigation against her and that it would recommend the institution of a disciplinary proceeding. She acknowledges that from approximately March 2002 through April 2003 she was entrusted with client funds to be held in escrow in connection with certain real estate transactions and other matters. During that time, Ms. Hilaire failed to properly maintain and preserve approximately $25,000 of the escrow funds and misappropriated them to a use other than that for which they were intended. The clients involved were unaware of the misappropriations inasmuch as the funds were returned before the required disbursement was made. In addition, Ms. Hilaire commingled personal and client funds in her escrow account. The Grievance Committee discovered this misconduct while investigating two sua sponte complaints initiated upon receipt of dishonored check notifications from the Lawyers’ Fund for Client Protection.

Ms. Hilaire acknowledges her inability to defend herself on the merits against any disciplinary charges which would be initiated against her by the Grievance Committee based upon the aforesaid misconduct. She avers that her resignation is freely and voluntarily tendered and that she has not been subjected to coercion or duress by anyone.

Ms. Hilaire has discussed her resignation with persons whose advice and counsel she respects and she is fully aware of the implications of its submission, including being barred by Judiciary Law § 90 and the rules of the Appellate Division from seeking reinstatement as an attorney for a minimum of seven years. She acknowledges that her resignation is subject to any application which could be made by the Grievance Committee to direct that she make restitution and reimbursement to the Lawyers’ Fund for Client Protection, pursuant to Judiciary Law § 90 (6-a). She further acknowledges the continuing jurisdiction of the Appellate Division, Second Department to make such an order, which could be entered as a civil judgment against her, and she specifically waives the opportunity afforded by Judiciary Law § 90 (6-a) (f) to be heard in opposition thereto.

The Grievance Committee urges acceptance of the proffered resignation.

Inasmuch as Ms. Hilaire’s resignation complies with all pertinent Court rules, it is accepted and, effective immediately, Elmina M. Hilaire, admitted as Elmina Merle Hilaire, is disbarred and her name is stricken from the roll of attorneys and counselors-at-law.

Prudenti, PJ., Ritter, Santucci, Altman and Mastro, JJ., concur.

Ordered that the resignation of Elmina M. Hilaire, admitted as Elmina Merle Hilaire, is accepted and directed to be filed; and it is further,

Ordered that pursuant to Judiciary Law § 90, effective immediately, Elmina M. Hilaire, admitted as Elmina Merle Hilaire, is disbarred, and her name is stricken from the roll of attorneys and counselors-at-law; and it is further,

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

Ordered that pursuant to Judiciary Law § 90, effective immediately, Elmina M. Hilaire, admitted as Elmina Merle Hilaire, 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 herself out in any way as an attorney and counselor-at-law; and it is further,

Ordered that Elmina M. Hilaire, admitted as Elmina Merle Hilaire, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and she shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 691.10 (f).  