The trend toward leniency in Second Department escrow fund misappropriation cases, which I identified in a previous column,1 continued in Matter of Francis.2 In the Francis case, the respondent Marc A. Francis admitted that he received $10,000 in a fiduciary capacity on behalf of a client, but then drew approximately 14 checks and made additional transfers against the funds, totaling $5493.72, to pay his own bills and expenses over a three-week period in February 2009. When he later sought to disburse the escrow funds, per his client’s directive, the escrow check was dishonored due to an insufficient balance. The respondent also admitted that he commingled personal or business monies with client funds in his escrow account and in other instances drew checks on his escrow account to pay his own bills and expenses.
Following an investigation, the Grievance Committee for the Tenth Judicial District chose only to charge Francis with violations of Rule of Professional Conduct 1.15(a) (formerly, Disciplinary Rule [DR] 9-102(A) of the Code of Professional Responsibility), the rule concerning proper separation of trust funds, but not Rule 8.4(c) (formerly, DR 1-102(A)(4)), the rule proscribing dishonest conduct normally alleged in a case of deliberate theft of client funds. Based on certain (standard) mitigating factors, the respondent was publicly censured.
Law FIrm Discipline Rules
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