December 23, 2008
Disbarred By Default
An attorney who had been suspended in May for failing to respond to complaints against him was disbarred by the New York Appellate Division for the Second Judicial Department:
The petition contains one charge of professional misconduct alleging that the respondent failed to cooperate with three investigations into allegations of his professional misconduct. Notwithstanding efforts to effect service upon the respondent as authorized by this Court in the order to show cause dated January 17, 2008, the respondent has failed to file an answer as directed by the Court's decision and order on motion dated March 27, 2008. Accordingly, he is in default and the charge against him must be deemed established.
The Grievance Committee thereupon moves for an order adjudicating the respondent in default, deeming the charge established, and directing that the respondent, a suspended attorney, be disciplined upon the charge set forth in the petition. Although served with this motion by mailing copies to the three aforementioned residences and affixing copies to the front door of each of those premises, the respondent failed to reply.
Significantly, the respondent failed to submit any opposition to the Grievance Committee's earlier motion, inter alia, to suspend him. He is, thus, in default.
Accordingly, the Grievance Committee's motion is granted, the charge contained in the petition is deemed established and, effective immediately, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law.
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The lawyer was suspended for failing to cooperate with the investigation. The problem is that the court obtained personal jurisdiction over the lawyer by substitute service. There is no evidence that the lawyer was ever aware of the proceeding. While the court can obtain valid jurisdiction via substitute service, the lawyer must actually be aware of the proceeding before he has a duty to cooperate. This should be obvious.
This is a common issue with New York’s proceedings and one I have highlighted before.
Posted by: FixedWing | Dec 23, 2008 1:09:16 PM