In re Day

29 A.D.3d 240, 814 N.Y.S.2d 152
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 4, 2006
StatusPublished
Cited by3 cases

This text of 29 A.D.3d 240 (In re Day) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Day, 29 A.D.3d 240, 814 N.Y.S.2d 152 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent was admitted to the practice of law in the State of New York by the Second Judicial Department on June 25, 1997, under the name Charles Channing Day. Although it appears that respondent currently resides in Gulfport, Florida and does not practice law in New York, at all times relevant to this proceeding he maintained an office for the practice of law within the First Judicial Department.

In a notice and statement of charges, dated February 4, 2005, the Departmental Disciplinary Committee alleges 20 counts of professional misconduct against respondent, including neglect of five client matters and on two occasions providing his clients with forged court orders to cover up his neglect of their cases, in violation of Code of Professional Responsibility DR 1-102 (a) (4) (22 NYCRR 1200.3 [engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation]); DR 6-101 (a) (3) (22 NYCRR 1200.30 [neglecting legal matters entrusted to him]); and DR 7-101 (a) (3) (22 NYCRR 1200.32 [intentionally prejudicing or damaging his client during the course of the professional relationship]). In addition, the charges allege that respondent failed to cooperate with the Committee’s investigation concerning nine complaints of professional misconduct against him by failing to submit written answers and/or provide documents and information, as repeatedly requested and directed to do by the Committee, in violation of DR 1-102 (a) (5) (engaging in conduct prejudicial to the administration of justice). In one criminal matter, the charges allege that respondent had not sent his client a refund of the unearned portion of his retainer, in violation of DR 2-110 (a) (3) (22 NYCRR 1200.15). In an immigration matter, it was alleged that respondent owes a judgment for more than $78,000 to his client because his neglect and malpractice caused the client to be detained unnecessarily for three weeks, in violation of DR 1-102 (a) (5) (engaging in conduct prejudicial to the administration of justice) and DR 6-101 (a) (3) (neglect of legal matter entrusted to him).

It is further alleged that respondent failed to provide the Committee with documents, files, information, and IOLA rec[242]*242ords requested by the Committee at a deposition and in letters mailed to him with regard to, inter alia, the Committee’s sua sponte investigation of a dishonored IOLA check. Finally, it is alleged that by engaging in a pattern of neglect and noncooperation, respondent engaged in conduct that adversely reflects on his fitness to practice law, in violation of DR 1-102 (a) (7).

The charges are the result of information received regarding respondent’s representation of clients beginning on or about August 8, 2002 when the Committee opened a sua sponte investigation of respondent after it received a copy of federal court orders granting summary judgment and awarding compensatory and punitive damages against respondent for legal malpractice based upon his lack of diligence which resulted in his client being unnecessarily held an additional 20 days in custody by the Immigration and Naturalization Service. Thereafter, the Committee received complaints from other clients of respondent as well as a Family Court referee on or about April 3, 2003, June 11, 2003, October 5, 2003, July 20, 2004, August 30, 2004, September 5, 2004, and November 12, 2004, regarding respondent’s representation. The Committee was also notified by the Lawyers’ Fund for Client Protection on July 30, 2004 that a check for $110 issued from respondent’s IOLA escrow account had been dishonored for insufficient funds.

The Committee sent respondent letters directing him to answer these complaints; however, although respondent answered the April 3, 2003 and June 11, 2003 complaints, he failed to formally answer the other complaints against him. The Committee conducted a deposition of respondent regarding the complaints then pending on May 21, 2004, at which he appeared pro se and gave his version of events. At the deposition, counsel for the Committee advised respondent to send the Committee information and documents concerning several of the complaints against him within 10 days. Counsel also directed respondent to inform the Office of Court Administration (OCA) and the Committee about his new address in Florida because he had testified that he intended to move there. Thereafter, respondent moved to Florida without notifying the Committee of his change of address.

Since respondent did not send the requested information, Committee counsel mailed him two copies of the deposition transcript on September 21, 2004, to his New York address, for any appropriate corrections and asked him to return a corrected copy to the Committee, as well as the requested information, [243]*243documents and files that counsel requested. In addition, counsel reminded respondent that he could be suspended for failing to cooperate with the Committee.

Sometime in September 2004, a Committee investigator obtained respondent’s new address in Florida from the Post Office. The Committee again sent two copies of respondent’s deposition with a letter dated November 9, 2004, by express mail, stating that the allegations against him concerning neglect, failure to pay a judgment to a client, and giving clients forged court orders were very serious. Counsel also reminded respondent to send the Committee answers involving two complaints, as previously requested, and that he was required to notify OCA of his new Florida address, which he failed to do. Not hearing from respondent, counsel for the Committee sent him another letter on December 6, 2004, to his New York and Florida addresses reminding him that he had not sent the Committee the information and documents requested at the deposition, as well as the answers to several complaints.

The Committee served respondent with the notice and statement of charges by first class and certified mail, return receipt requested, at his Florida residence, notifying him that a hearing had been scheduled for 10:00 a.m. on March 16, 2005, at the Committee’s offices. Respondent signed a certified return receipt on February 7, 2005, but despite letters from both the referee and the Committee to respondent asking him to confirm that he would participate in the proceedings, he did not serve an answer to the charges or otherwise communicate with the Committee or the referee.

On March 16, 2005, a hearing concerning the charges was conducted in respondent’s absence before the referee appointed by this Court. The Committee introduced documentary evidence demonstrating that it had notified respondent about the hearing and warned respondent about the consequences of his failure to participate in the disciplinary proceedings. In support of the misconduct alleged in the charges, the Committee also offered in evidence various exhibits, including the federal court orders, the client complaints, and the transcript of respondent’s deposition.

The referee held the record of the March 16, 2005 hearing open until 5:00 p.m. to permit respondent’s appearance, but he did not appear. The referee then scheduled a mitigation hearing for March 22, 2005 at the Committee’s offices in the event that respondent wished to present any evidence as to mitigation or [244]*244liability. The Committee notified respondent of the March 22, 2005 hearing date by first class and express mail sent to his Florida residence. Respondent did not appear at that hearing or otherwise respond.

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Cite This Page — Counsel Stack

Bluebook (online)
29 A.D.3d 240, 814 N.Y.S.2d 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-day-nyappdiv-2006.