In re Donner

88 A.D.3d 248, 928 N.Y.2d 550

This text of 88 A.D.3d 248 (In re Donner) 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 Donner, 88 A.D.3d 248, 928 N.Y.2d 550 (N.Y. Ct. App. 2011).

Opinion

OPINION OF THE COURT

Per Curiam.

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a superseding petition dated May 26, 2010, containing 17 charges of professional misconduct. After a hearing on October 22, 2010, at which the respondent appeared pro se, the Special Referee sustained all 17 charges. The Grievance Committee now moves to confirm the Special Referee’s report and to impose such discipline upon the respondent as the Court may deem just and proper. The respondent has neither opposed the motion nor submitted any papers in reply.

Charges one through five of the petition emanate from six client complaints, as follows:

The Teitelbaum Complaint

In or about January 2006, Lisa Teitelbaum retained the respondent to represent her in a matrimonial action. Teitelbaum paid the respondent a legal fee in the sum of $5,000. After filing a summons with notice on Teitelbaum’s behalf in or about February 2006, the respondent failed to perform any further legal work on Teitelbaum’s matter and failed to return her telephone calls. By letter dated June 9, 2006, Teitelbaum’s new attorneys requested that the respondent execute a consent to change attorney form and provide Teitelbaum’s file along with any refund due from the balance of her retainer. The respondent failed to respond. By letter dated June 15, 2006, Teitelbaum’s new attorneys again requested that the respondent execute a consent to change attorney form and provide Teitelbaum’s file and refund. The respondent failed to respond. By letter dated June 19, 2006, Teitelbaum’s new attorneys demanded that the respondent provide an executed change of attorney form and [250]*250Teitelbaum’s file. The respondent signed the consent to change attorney form, but failed to refund the unused balance of Teitelbaum’s retainer. By letter dated July 20, 2006, Teitelbaum’s new attorneys demanded that the respondent immediately refund Teitelbaum’s outstanding retainer balance in the sum of $3,881.30. The respondent failed to respond.

By letter dated August 21, 2006, the respondent was provided with a copy of a written complaint dated August 10, 2006, which Teitelbaum had filed against the respondent with the Grievance Committee. The respondent was directed to submit his written answer within 15 days. The respondent failed to reply. By certified letter dated September 21, 2006, the respondent was directed to submit his written answer to the Teitelbaum complaint within 10 days. The respondent failed to reply. By certified letter dated October 24, 2006, the respondent was again directed to submit his written answer to the Teitelbaum complaint within 10 days. The respondent failed to reply. On or about November 15, 2006, the respondent advised the Grievance Committee by telephone that he had mailed an answer to the Teitelbaum complaint and that he would mail another copy to the Grievance Committee forthwith. As of December 20, 2006, the respondent had failed to submit an answer. By certified letter dated December 20, 2006, the respondent was directed to submit his written answer to the Teitelbaum complaint no later than December 27, 2006. The respondent failed to submit an answer as directed.

On January 26, 2007, a subpoena duces tecum was served at the respondent’s place of business, directing him to appear at the offices of the Grievance Committee on February 2, 2007, to give testimony and produce, inter alia, a copy of his written answer to the Teitelbaum complaint, as well as a copy of the Teitelbaum file. On February 1, 2007, the respondent requested, and was granted, an extension of time, and agreed to submit his answer forthwith. The respondent thereafter produced written answers dated February 2, 2007 and February 7, 2007, respectively, which were received by the Grievance Committee on February 6, 2007 and February 15, 2007, respectively. In his answers, the respondent acknowledged that Teitelbaum was entitled to a refund in the sum of $3,881.30 and that he would make payment in full “no later than 30 days” from February 7, 2007.

By letter dated April 10, 2007, the Grievance Committee directed the respondent to provide, within 10 days of his receipt [251]*251of the letter, an explanation for the delay in refunding to Teitelbaum the unused portion of her retainer. The respondent failed to answer. By certified letter dated May 2, 2007, the respondent was directed to respond to the Grievance Committee’s previous inquiry of April 10, 2007 within five days. The respondent failed to answer. By letter hand-delivered to the respondent’s office on May 25, 2007, the respondent was directed to submit a response to the letter dated April 10, 2007 within five days. By letter dated June 8, 2007, the respondent submitted a response. Thereafter, in or about July 2007, the respondent mailed Teitelbaum a partial refund in the sum of $500. However, the respondent failed to refund the full amount due to Teitelbaum.

By letter dated December 6, 2007, the respondent was directed to provide a written update on the status of Teitelbaum’s refund within 10 days. The respondent failed to respond. On January 10, 2008, the respondent agreed in a telephone conversation to submit a written update forthwith. He thereafter submitted a response dated January 12, 2008, in which he advised that he had made another partial payment to Teitelbaum in the sum of $500. By letter dated April 25, 2008, the respondent advised that although he had intended to make the above-referenced second partial payment to Teitelbaum in the sum of $500, he did not actually do so. By certified letter dated November 5, 2008, the respondent was directed to submit a written update on the status of Teitelbaum’s refund within five days. In the absence of a response, the respondent was requested, by letter dated December 9, 2008, to schedule an examination under oath at the offices of the Grievance Committee. The respondent failed to either respond to the letter dated November 5, 2008, or schedule an examination under oath.

On December 22, 2008, the respondent was served with a judicial subpoena directing him to appear at the offices of the Grievance Committee to give sworn testimony regarding, inter alia, the Teitelbaum complaint. On January 28, 2009, the respondent appeared and testified under oath. By subsequent letter dated February 8, 2009, the respondent advised that he had mailed Teitelbaum another partial refund in the sum of $300, to be credited against the $3,381.30 balance.

The Ratcliff Complaint

In or about August 2005, the respondent was retained by Vance E. Ratcliff for “the negotiation, preparation, and/or review of a separation agreement or other marital settlement [252]*252agreement, and for representation in a divorce action including the attempt to negotiate a resolution in the matter.” The respondent thereafter filed a notice of appearance dated October 14, 2005, in Supreme Court, Onondaga County, in connection with the Ratcliff matter. However, the respondent failed to keep Ratcliff apprised of the status of the matter and was unresponsive to Ratcliffs telephone calls. By letter dated March 8, 2006, the respondent was advised of a preliminary conference to be held on April 10, 2006, in which all parties were required to appear. Neither Ratcliff nor the respondent appeared in court on April 10, 2006, and Ratcliff was held in default due to his nonappearance on the matter. On or about May 19, 2006, the respondent spoke with attorney Susan C.

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Bluebook (online)
88 A.D.3d 248, 928 N.Y.2d 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-donner-nyappdiv-2011.