
    [794 NYS2d 678]
    In the Matter of Carl H. Smith, an Attorney, Resignor.
    Second Department,
    May 9, 2005
    APPEARANCES OF COUNSEL
    
      Jerome Karp, P.C., Brooklyn, for resignor.
    
      Diana Maxfield Kearse, Brooklyn (Michele Martino of counsel), for Grievance Committee for the Second and Eleventh Judicial Districts.
   OPINION OF THE COURT

Per Curiam.

Carl H. Smith has submitted an affidavit dated December 10, 2004, wherein he tenders his resignation as an attorney and counselor-at-law (see 22 NYCRR 691.9). Mr. Smith was admitted to the bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on November 16,1988.

Mr. Smith acknowledges that he is the subject of an investigation by the Grievance Committee into allegations of improprieties in his escrow account, including insufficient funds on deposit, and that charges are now pending concerning same. Prior to the submission of his resignation, the Grievance Committee moved for Mr. Smith’s immediate suspension from the practice of law on the ground that he poses an immediate threat to the public interest based on substantial admissions under oath and other uncontroverted evidence. A petition dated November 9, 2004, containing two charges of conversion, was served upon him on December 2, 2004, along with the order to show cause seeking his immediate suspension.

Mr. Smith acknowledges his inability to successfully defend himself on the merits of any disciplinary charges which have been brought against him based upon the professional misconduct described herein. He avers that his resignation is freely and voluntarily tendered and that he is not being subjected to coercion or duress by anyone. He has discussed his decision to resign with his attorney and others whose advice and counsel he respects. He is aware of the implications of submitting a resignation, including being barred from seeking reinstatement to the bar for at least seven years.

Mr. Smith is aware that pursuant to Judiciary Law § 90 (6-a), the Court, in any order permitting him to resign, could require him to make monetary restitution to any persons whose money or property was misappropriated or to reimburse the Lawyers’ Fund for Client Protection for same. He is aware that any order issued pursuant to Judiciary Law § 90 (6-a) could be entered as a civil judgment against him and he 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 it comports with appropriate Court rules, the resignation of Carl H. Smith is accepted and, effective immediately, he is disbarred and his name is stricken from the roll of attorneys and counselors-at-law. The Grievance Committee’s pending motion to immediately suspend Mr. Smith and to authorize a disciplinary proceeding against him is denied as academic in view of his resignation.

Prudenti, RJ., Florio, H. Miller, Schmidt and Adams, JJ., concur.

Ordered that the resignation of Carl H. Smith is accepted and directed to be filed; and it is further,

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

Ordered that Carl H. Smith 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, Carl H. Smith is commanded to desist and refrain from (1) practicing law in any form, either as principal or as 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 the motion by the Grievance Committee is denied as academic in view of his resignation; and it is further,

Ordered that if Carl H. Smith 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).  