Appellate Division: Second Judicial Department

M53680

E/nl

A. GAIL PRUDENTI, P.J.

ROBERT W. SCHMIDT

STEPHEN G. CRANE

WILLIAM F. MASTRO

GABRIEL M. KRAUSMAN, JJ.

2007-00394 In the Matter of William M. Joyce, admitted as William Michael Joyce, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; William M. Joyce, respondent. (Attorney Registration No. 2098036)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District for an order: (1) suspending the respondent from the practice of law on an interim basis, pursuant to 22 NYCRR 691.4(l)(1)(i), upon a finding that he is guilty of misconduct immediately threatening the public interest in that he has failed to comply with the lawful demands of the Grievance Committee for the Ninth Judicial District; (2) authorizing it to institute and prosecute a disciplinary proceeding against him; (3) directing the respondent to answer the petition dated January 4, 2007, within 20 days after service of the decision and order determining this motion; and (4) appointing a Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 4, 1987, under the name William Michael Joyce.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent William M. Joyce, admitted as William Michael Joyce, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,

ORDERED that the respondent, William M. Joyce, admitted as William Michael Joyce, shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, William M. Joyce, admitted as William Michael Joyce, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against the respondent, William M. Joyce, admitted as William Michael Joyce, based on the petition dated January 4, 2007; and it is further,

ORDERED that Gary L. Casella, Chief Counsel to the Grievance Committee for the Ninth Judicial District, 399 Knollwood Road, Suite 200, White Plains, N.Y. 10603, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent William M. Joyce, admitted as William Michael Joyce, shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Fred L. Shapiro, a former County Court Judge, Westchester County, 140 Grand Street, Suite 401, White Plains, N.Y. 10601, as Special Referee to hear and report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, William M. Joyce, admitted as William Michael Joyce, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to timely respond to a complaint of professional misconduct and to comply with the lawful demands of the Grievance Committee.

On February 23, 2006, a complaint was filed by Owen Peterson and Judith Peterson alleging that the respondent neglected several legal matters that they had entrusted to him, and that he had misrepresented the status of one or more of those matters. Additionally, in February 2006, the Grievance Committee issued a sua sponte complaint predicated upon the respondent's failure to maintain his attorney registration with the Office of Court Administration (hereinafter OCA), and pay his attorney registration fee.

The respondent failed to answer the Petersons' complaint or produce a copy of their file as requested by the Grievance Committee. The Petersons complained that after representing Owen Peterson in his bankruptcy, the respondent agreed to pursue additional legal matters and was paid a fee of $5,000. However, despite the respondent's assurances that he was working on their matters, he failed to make any tangible progress and they cannot break down how the money was allocated. One matter involved a dispute between the Petersons and Commerce Street Properties, Inc., a cooperative commercial property entity in which the Petersons owned shares that entitled them to use commercial space. The respondent prepared papers and the Petersons executed a verification of petition on July 20, 2001, but the respondent never actually commenced a proceeding.

In another matter, the respondent was to commence an action against an individual named Ronald Sauber, to recover the proceeds of a promissory note dated October 29, 1993. According to the Petersons, the respondent prepared a motion for summary judgment in lieu of a complaint, against Mr. Sauber and/or his business entity, A to Z Auto Parts, Inc. However, the respondent misled the Petersons by advising that the papers had been served and the action commenced, or that the action was pending, or that a judgment had been granted.

The Petersons further complain that in December 2004, the respondent prepared an additional set of papers to commence an action by motion for summary judgment in lieu of a complaint against Mr. Sauber, but no action was commenced against Mr. Sauber.

In addition, the Petersons allege that the respondent agreed to pursue a claim against A to Z Auto Parts, Inc., based upon another promissory noted dated October 31, 1994. Although the respondent prepared pleadings to commence the action by motion for summary judgment in lieu of a complaint, and represented to the Petersons that he had served the papers and commenced the action, no action was commenced.

Further, in 2003, the respondent defended Judith Peterson in a collection case brought against her by MBNA America Bank, N.A. (hereinafter MBNA), based upon an overdue credit card account. Subsequently, MBNA obtained an arbitration award against her, which it then had confirmed in a proceeding in the Supreme Court, Dutchess County. Although the respondent prepared papers to vacate her default in opposing the proceeding, apparently the papers were never filed in court.

With respect to the sua sponte complaint, the Grievance Committee notified the respondent by letter dated February 28, 2006, about the complaint regarding his failure to submit his attorney registration statement and fee for the 2005-2006 registration period which had been due in April 2005. He was directed to submit a written answer within 10 days and to provide the Grievance Committee with proof of his satisfaction of the registration requirement within 60 days.

Additionally, by separate letter also dated February 28, 2006, the Grievance Committee forwarded to the respondent a copy of the complaint of Owen Peterson and Judith Peterson dated February 19, 2006. The respondent was directed to submit a written answer to this complaint within 10 days.

The two letters to the respondent were sent to an address in Portland, Oregon, that the Petersons had provided in their complaint. When the Grievance Committee received no response from the respondent, it forwarded two additional copies of the complaints to the professional address that he had provided to OCA, in care of a company located at Stewart International Airport in Orange County, New York. These papers were returned by the United States Postal Service with a notation that the time had expired for a forwarding order.

By cover letters dated April 4, 2006, the Grievance Committee forwarded additional copies of the complaint to the respondent at the Portland, Oregon, address by certified mail, return receipt requested. The receipts indicate that the respondent signed for the mail containing the sua sponte complaint on April 22, 2006, and that another individual signed for the mail containing the Petersons' complaint on April 6, 2006. The Grievance Committee's investigator thereafter repeatedly attempted to contact the respondent by telephone at the number contained in the Petersons' complaint, to confirm the respondent's receipt of the Petersons' complaint. Apparently, the respondent returned one call on or about May 25, 2006, but the Grievance Committee's investigator was not then available. The Grievance Committee's investigator made additional attempts to reach the respondent and left him voice messages, but the respondent never returned the calls.

By certified letter to the respondent dated July 26, 2006, the Grievance Committee outlined the various communications made to him and advised him that his lack of cooperation constituted professional misconduct independent of the merits of the underlying complaints and that it could provide a basis for the Grievance Committee to move for his immediate suspension. On July 31, 2006, the respondent contacted the office of the Grievance Committee to speak with staff counsel, who was not then available. Although the respondent left a message that he would call back, no further phone calls were received from him.

Instead, on August 17, 2006, the respondent faxed a letter to staff counsel in which he admitted that he had received the two complaints and had failed to answer them, and that he was not in need of his New York license since he was General Counsel of an investment bank. He stated that addressing the complaints would require considerable time which he did not have due to his work and travel schedule.

By letter dated August 17, 2006, the respondent was advised that until his written answers were received by the Grievance Committee, he remained in non-compliance with the investigation. He was also requested to forward a copy of the Petersons' file by August 28, 2006.

The respondent's written answer to the sua sponte complaint was received by the Grievance Committee on August 21, 2006. He admitted that he had not timely filed his registration and applicable fee for 2005-2006 and that he did not have an excuse. Enclosed with the respondent's answer was a copy of his updated OCA registration executed August 13, 2006, in which he certified that he was retired from the practice of law and amended his business address to state "N/A - None."

With respect to the Petersons' complaint, the respondent did not address this matter until November 2, 2006, when he sent a letter by fax acknowledging that he had not submitted either an answer to the complaint or a copy of the file. In the interim, the Grievance Committee sent additional letters to the respondent advising him of his lack of compliance and its potential consequences.

On November 7, 2006, the respondent advised the Grievance Committee by fax that he was preparing his answer and alleged that the Petersons' complaint had no merit. He did not specify when he would be submitting a complete answer, only stating that he had promised that his "response would come in waves" and that this was the "first such wave."

As to the copy of the Petersons' file requested by the Grievance Committee, the respondent advised that he was researching whether he was legally required to provide this, and he would comply with the letter of the law, but expected that his research would show that he was not required to reproduce the entire file.

The respondent thereafter sent three faxes to the Grievance Committee on November 9, 2006, November 14, 2006, and November 30, 2006, each time advising that he was working on his answer to the Petersons' complaint and expecting to send his response the following week. He repeatedly complained that it was extremely time consuming to go through files that he had not handled for about eight years and he was also busy with other matters.

Annexed to the Grievance Committee's motion papers is a proposed petition dated January 4, 2007, containing 12 charges of misconduct against the respondent.

The respondent's admissions and the evidence presented by the Grievance Committee, demonstrating that the respondent repeatedly failed to comply with its lawful demands, establish that his misconduct immediately threatens the public interest and that his immediate suspension is warranted pursuant to the standards set forth in 22 NYCRR 691.4(l)(1)(i).

Accordingly, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a special referee to hear and report.

PRUDENTI, P.J., SCHMIDT, CRANE, MASTRO and KRAUSMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court