In re McNamara

303 A.D.2d 129, 756 N.Y.S.2d 231, 2003 N.Y. App. Div. LEXIS 842
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 3, 2003
StatusPublished
Cited by1 cases

This text of 303 A.D.2d 129 (In re McNamara) 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 McNamara, 303 A.D.2d 129, 756 N.Y.S.2d 231, 2003 N.Y. App. Div. LEXIS 842 (N.Y. Ct. App. 2003).

Opinion

OPINION OF THE COURT

Per Curiam.

The Grievance Committee for the Ninth Judicial District (hereinafter the petitioner) served the respondent with a peti[130]*130tion containing three charges of professional misconduct. Charges One and Two were subsequently amended, and Charge Three was withdrawn. The respondent submitted an answer to the petition in which she denied in part the factual allegations contained therein, denied knowledge or information sufficient to form a belief regarding other allegations, and referred to the documentary evidence regarding the remaining allegations. She did not submit an answer to the amended charges, but stipulated to many of the factual allegations, as amended. After a hearing, the Special Referee sustained both charges. The petitioner now moves to confirm the report of the Special Referee. The respondent opposes the motion.

Charge One, as amended, alleges that the respondent engaged in conduct adversely reflecting on her fitness as a lawyer by failing to cooperate with an investigation of the Grievance Committee for the Ninth Judicial District, in violation of Code of Professional Responsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]):

The respondent was retained to represent Earle A. Bellows and two others in one or more matters in Putnam County. Mr. Bellows filed a complaint with the Grievance Committee, dated May 29, 2001, in which he alleged, in essence, that the respondent neglected the legal matter, failed to keep the clients apprised of its status, and failed to respond to his telephone calls and letters. A copy of the Bellows complaint was mailed to the respondent on June 7, 2001. The cover letter directed her to submit a written answer within 10 days of receipt thereof and advised her that an unexcused failure to submit a timely answer constituted professional misconduct independent of the merits of the underlying allegations and would be treated accordingly by the petitioner. The respondent failed to submit an answer.

On June 28, 2001, a second copy of the complaint was sent to both the respondent’s office address and post office box by first class mail and by certified mail, return receipt requested. The cover letters advised the respondent that her failure to submit a written answer within 10 days of receipt thereof might cause the petitioner to move for her immediate suspension from the practice of law. A return receipt reflects that someone at the respondent’s office signed for delivery of the certified letter on June 29, 2001. A second return receipt reflects that the respondent personally accepted delivery of the certified letter sent to [131]*131her post office box on or before July 12, 2001. The respondent did not contact the petitioner to request an adjournment of the return date, nor did she submit a written answer to the Bellows complaint within 10 days of her receipt thereof.

On August 6, 2001, the petitioner received the respondent’s untimely and very brief answer to the Bellows complaint. It did not adequately address the allegations contained therein.

In the interim, on July 25, 2001, Mr. Bellows sent a supplemental complaint to the petitioner alleging that the respondent failed to appear in the Supreme Court, Putnam County, on July 5, 2000, which caused the assigned Judge to remove the case from the calendar. By certified letter dated September 5, 2001, the respondent was sent a copy of Mr. Bellows’ supplemental complaint and was asked to submit an answer thereto in the form of an affirmation. The return receipt reflects that the respondent signed for delivery of the letter on or before September 10, 2001. She failed to submit a timely answer.

The respondent telephoned the petitioner on Friday, September 21, 2001, and left a message for its counsel that she had two answers outstanding, including the answer to the Bellows complaint, which was due on September 20, 2001. She requested an extension until September 28, 2001, to submit the answers. The petitioner’s counsel returned the respondent’s telephone call on Monday, September 24, 2001, and left messages on her cell phone and office telephone. The respondent telephoned the petitioner’s counsel on Tuesday, September 25, 2001. She stated that her answer was drafted, but needed to be typed. However, her typist was not available because the typist’s sister was missing in the September 11, 2001, attack on the World Trade Center. The respondent was advised to submit her drafted answer in handwritten form or find a different typist and submit the answer forthwith since it was already overdue. The respondent’s answer was not received until October 30, 2001, when it was hand-delivered to the petitioner’s office 35 days after her telephone call to the petitioner’s counsel and 20 days after the respondent was served with a copy of the petitioner’s motion for authorization to institute and prosecute a disciplinary proceeding against her, among other things.

Charge Two, as amended, alleges that the respondent engaged in conduct adversely reflecting on her fitness as a lawyer by failing to cooperate with an investigation of the Grievance Committee for the Ninth Judicial District, in violation of Code of Professional Responsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]):

[132]*132The respondent was retained to represent David Schasser in connection with his purchase of property. The closing occurred on or about September 11, 2000. Daniel Miller, Esq., who represented the seller at the closing, filed a grievance against the respondent, dated March 20, 2001, in which he alleged, inter alia:

“I have been attempting since September 11, 2000, to pick up a Note that was signed by the Purchaser and held by the Purchaser’s attorney, Maureen McNamara, who was supposed to have sent me the original Note for a balloon payment under the closing terms in the amount of $35,000.00. I have called; I have written. It has been promised that it would be delivered to me. I have not received it despite all these efforts since September 11, 2000. I have no recourse but to ask for your intervention * * * Ms. McNamara has not responded to our messages or letters.”

A copy of Mr. Miller’s grievance was sent to the respondent on March 27, 2001. The cover letter directed her to submit a written answer within 10 days of receipt thereof and advised her that an unexcused failure to submit a timely answer constituted professional misconduct independent of the merits of the underlying allegations and would be treated accordingly by the Committee. The respondent failed to submit an answer.

A second copy of the complaint was sent to the respondent by certified mail, return receipt requested, on April 18, 2001. The cover letter advised the respondent that her failure to answer within 10 days of receipt thereof might cause the petitioner to move for her immediate suspension from the practice of law. Someone at the respondent’s office signed for delivery of the certified letter on April 19, 2001. Again, the respondent failed to submit an answer.

On May 2, 2001, the petitioner sought a subpoena from the Appellate Division for the respondent’s appearance on May 22, 2001, and a subpoena duces tecum for the production of her complete file in the underlying matter.

On May 9, 2001, the respondent telephoned the petitioner’s offices and belatedly requested a one-week extension of time to submit an answer because the letter dated April 18, 2001, had been misplaced. The petitioner’s staff granted an extension until May 16, 2001.

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Related

Matter of McNamara
2018 NY Slip Op 1313 (Appellate Division of the Supreme Court of New York, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
303 A.D.2d 129, 756 N.Y.S.2d 231, 2003 N.Y. App. Div. LEXIS 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcnamara-nyappdiv-2003.