Wednesday, May 12, 2010

No Response

The New York Appellate Division for the First Judicial Department rejected an attorney's asserted fear of a stalker as an explanation for failure to respond to two client bar complaints. The attorney was suspended on an interim basis for failing to respond. The court described the efforts of the Departmental Disciplinary Committee to obtain responses after letters were returned unopened:

In October 2008, the Committee's investigator visited respondent's purported residence, but she was not present and the individuals that were present claimed they did not know respondent. On or about October 27, 2008, the U.S. Postal Service advised the Committee that the mailing addresses they had for respondent were indeed valid.

On three successive days in March 2009, the Committee's investigator unsuccessfully attempted to personally serve a judicial subpoena duces tecum at respondent's address in Brooklyn. The subpoena directed respondent to appear before the Committee on April 21, 2009 and to provide an answer to the Gray-Nelson complaint. On March 30, 2009, respondent was served with the subpoena by substituted service. The Committee continued its attempts to contact respondent by sending letters to both of her Brooklyn addresses by regular and certified mail, and by regular mail to an address in Jersey City found in an internet search. The regular mail was never returned or answered and the certified mail was returned as "unclaimed".

On or about August 6, 2009, the Committee sent a copy of the Jordan complaint to respondent at her Manhattan business address and directed her to answer within 20 days. Respondent failed to respond to the Committee's letter and it was returned, unopened.

The attorney later filed an affidavit:

...respondent submitted an affidavit whereby she avers that she did not intentionally refuse to cooperate with the Committee's investigation, rather, she had no notice of the two complaints against her because she had not received any of the Committee's correspondence. Respondent claims she has had to relocate her residence on several occasions because she was being stalked by a dangerous individual. She avers that as soon as her sister found a copy of the Committee's motion, respondent immediately retained counsel and states that she intends to cooperate.

Nonetheless, the court concluded:

...an attorney who is the subject of an investigation by the Committee may be temporarily suspended from the practice of law, pending consideration of the charges, upon a finding that the respondent is guilty of professional misconduct that immediately threatens the public interest, such as refusing to cooperate with the Committee's investigation of misconduct. Here, while respondent was allegedly being stalked and did not provide her current addresses to OCA out of fear for her safety, at least since October 1, 2009, she has had copies of the two complaints filed against her. Despite that notice, to date, respondent has not submitted answers to the complaints nor has she appeared for a deposition. Thus, respondent's conduct demonstrates a willful noncompliance with the Committee's investigation, warranting her immediate suspension. (citations omitted)

The suspension will remain in effect until the proceedings are completed and further court order. (Mike Frisch)

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