Friday, October 8, 2010

No Home At UPS

An attorney whose bar address turned out to be a UPS store mailbox has been suspended by the New York Appellate Division for the First Judicial Department for failure to respond the a complaint but not because the proofs conclusively establishe the alleged misconduct:

The Committee opened its investigation into respondent's conduct in March 2008 when it received a complaint alleging that respondent neglected an immigration legal matter on which he was retained, resulting in the client losing an opportunity to attain legal permanent resident status. In April 2008 the Committee received a second complaint which, according to the Committee, also alleges neglect of an immigration matter, and further alleges that respondent used the complaining client's identity to take out $150,000 in loans, lease an automobile, and obtain a credit card.

Respondent did not respond to the Committee's four letters, which were mailed to both his last known business and home addresses as well as other addresses associated with him. The Committee's investigator failed to reach respondent through telephone numbers associated with him, and investigation disclosed that respondent's listed home address was in fact a UPS store mailbox. He is delinquent in his attorney registration as well, having failed to register for the 2008-2009 biennial period.

By order dated September 23, 2009, the Committee was granted permission to serve the notice of motion to suspend on respondent by publication in the New York Law Journal (22 NYCRR 601.1), and the notice of motion was duly published.

Pursuant to 22 NYCRR 603.4(e)(1)(i), this Court may suspend an attorney from the practice of law pending consideration of charges of professional misconduct, upon a finding that the attorney failed "to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation." Respondent's failure to respond to the Committee's letters or its investigator's calls, and his failure to respond to this motion, establishes grounds for an immediate suspension from the practice of law (see Matter of Buggti, 7 AD3d 15 [2004]; Matter of Gujral, 307 AD2d 28 [2003]). However, the submissions as appended to the petition are incomplete and therefore fail to provide grounds for respondent's suspension pursuant to 22 NYCRR 603.4(e)(1)(iii).

Accordingly, the Committee's motion should be granted and respondent suspended from the practice of law, effective immediately, pursuant to 22 NYCRR 603.4(e)(1)(i), and until the further order of this Court.

(Mike Frisch)

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New York is very particular about imposing an immediate interim suspension. The court must first find that the attorney poses an imminent threat. The Court of Appeals has overturned such suspensions where this finding has not been made. Undoubtedly, this attorney does pose an imminent threat (at least based upon the complainant’s uncontested allegations). But the First Department suspended the attorney solely because he failed to respond to the complaint. The court did not actually make a finding that the attorney poses an imminent threat. In fact, the opinion specifically states that “the submissions … fail to provide grounds for respondent's suspension pursuant to 22 NYCRR 603.4(e)(1)(iii).” Section iii addresses “uncontested evidence of professional misconduct”. So yet again, we have another example of the First Department playing fast-and-loose with the rules. Not that it matters as, apparently, the attorney won’t even know that he is suspended and probably doesn’t care at this point being that he is assuredly now on permanent vacation in some far-off tropical paradise. :-)


Posted by: FixedWing | Oct 8, 2010 12:36:22 PM

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