Appellate Division: Second Judicial Department

M64293

E/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

STEPHEN G. CRANE

REINALDO E. RIVERA

ROBERT A. SPOLZINO, JJ.

2007-09369 In the Matter of Edward W. Donnelly, admitted as Edward Warren Donnelly, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Edward W. Donnelly, admitted as Edward Warren Donnelly, respondent. (Attorney Registration No. 1275757)

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, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii), upon a finding that he is guilty of misconduct immediately threatening the public interest in that he has failed to cooperate with the lawful demands of the Grievance Committee, and based upon substantial admissions he has made under oath that he committed acts of professional misconduct and upon other uncontroverted evidence that he neglected various client matters; (2) authorizing the Grievance Committee to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a petition dated October 5, 2007, which was served on the respondent, along with a copy of the order to show cause; and (3) directing the respondent to answer the petition, and (4) referring the issues raised by the petition dated October 5, 2007, and any answer interposed thereto to 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 March 20, 1974, under the name Edward Warren Donnelly.

Upon the papers submitted in support of the motion and no papers having been submitted in opposition or relation thereto, it is

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

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii), the respondent, Edward W. Donnelly, admitted as Edward Warren Donnelly, 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 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, Edward W. Donnelly, admitted as Edward Warren Donnelly, 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 Edward W. Donnelly, admitted Edward Warren Donnelly, based on the petition dated October 5, 2007; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, 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 shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer with this court; and it is further,

ORDERED that the issues raised by the petition and any answer interposed thereto are referred to Cary M. Tanzman, Esq., Tanzman & Cerbone, Esqs., 399 Knollwood Road, Suite 301, White Plains, N.Y. 10603, 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, Edward W. Donnelly, admitted Edward Warren Donnelly, 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 comply with lawful demands of the Grievance Committee, his substantial admissions he has made under oath that he has committed acts of professional misconduct, and other uncontroverted evidence of his professional misconduct.

A complaint dated February 1, 2007, filed by the respondent's client, Douglas McFarlane, was received by the Grievance Committee, alleging that MacFarlane had retained the respondent during the summer of 2002 for the purpose of obtaining an uncontested divorce. McFarlane and his wife had already been legally separated for more than 15 years. McFarlane paid the respondent a retainer fee of $1,200. Thereafter, over the next four years, McFarlane telephoned the respondent's office on over 100 occasions to check the status of the divorce. He either could not reach the respondent, or when he did manage to reach him, the respondent gave him one excuse or another. At least six times, the respondent told him the paperwork had been submitted and was awaiting a judge's signature. At least three times, the respondent told him that the paperwork had been filled out incorrectly and had to be re-submitted. On one occasion, the respondent said that the judge and his staff must be on vacation. During December 2006, the respondent stated that the paperwork had been submitted and was on the top of the judge 's stack. Finally, in or about January 2007, the respondent admitted to McFarlane that he simply "hadn't gotten around to [doing the necessary paperwork]."

Copies of the McFarlane complaint were sent to the respondent, both by certified mail, return receipt requested, and by first class mail. A return receipt for the certified mailing established that the respondent received at least one copy of the complaint on March 5, 2007. The first class copy was not returned undeliverable so that the respondent presumably received that copy as well. The letter of transmittal dated March 2, 2007 directed the respondent to submit a written answer within 10 days, and informed him that failure to do so would constitute "professional misconduct," irrespective of the underlying merits of the complaint.

The respondent failed to submit a timely answer. Consequently, the Grievance Committee obtained a judicial subpoena and a subpoena duces tecum to compel the respondent's appearance for an examination under oath with regard to the McFarlane complaint in addition to the another complaint, which was the subject of a January 4, 2007, Letter of Admonition.

By way of background, the respondent had been retained in the summer of 2002 to probate the estate of Francis A. Lover. Despite the slow progress made by the respondent, thus prompting the underlying complaint, the Lover family wanted the respondent to finalize the proceeding. The respondent admitted his neglect and promised to conclude the matter within a matter of months. The Grievance Committee's investigation was held in abeyance for a period of time to allow the respondent to take the necessary action. Since the respondent made some progress, the Grievance Committee decided to issue a Letter of Admonition, while giving the respondent one last opportunity to complete the Lover matter and reserving the right to reopen the proceedings to reconsider whether or not to seek authorization to commence a disciplinary proceeding. Although directed to notify the Grievance Committee when he had concluded the Lover matter, the respondent let the March 31, 2007, deadline pass without communicating with the Grievance Committee.

On May 2, 2007, the respondent appeared pro se at the Grievance Committee's offices. He brought with him his client files in the McFarlane and Lover matters.

With respect to the Lover Estate matter, the respondent testified that he was aware of his obligation to apprise the Grievance Committee by letter regarding his efforts to conclude the probate proceedings. He informed the Grievance Committee that in early March he was substituted by another attorney, Kevin Hobbs, to whom he turned the file over. The respondent admitted that he did not notify the Grievance Committee about the substitution and stated that he had no good reason for his failure.

With regard to the McFarlane divorce action, the respondent revealed that, while retained in 2002, no retainer agreement was ever signed by the client and that he never provided his client with a statement of his rights. He acknowledged receipt of the complaint in the early part of January 2007 and acknowledged that he failed to submit a written answer. He attributed his failure to submit an answer to organizational and medical problems. In relating the difficulties he had completing the McFarlane matter, the respondent testified that he got ill. Although he had had diabetes for a long time, the respondent testified that his condition had worsened to the point that he needed to sleep twelve-to-thirteen hours per day, and that his eyesight became so blurry that he had to place documents within two inches of his eyes in order to read them. Despite past difficulties completing the McFarlane divorce action and other matters which were the subject of the previously issued Letters of Admonition, the respondent testified that he had improved in the sense that he could concentrate better now. He testified that he now felt capable of completing the McFarlane matter.

The Grievance Committee agreed to hold the matter in abeyance, setting June 15, 2007, as a deadline for the completion of the McFarlane matter, provided the respondent apprise the Grievance Committee in writing of his progress, which, in essence, would constitute an answer to the complaint. The respondent failed to comply within the agreed upon-time frame.

Annexed to the Grievance Committee's motion papers is a proposed petition dated October 5, 2007, containing five charges of professional misconduct.

Based on the foregoing, the Grievance Committee's motion is granted, without opposition, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii), pending further order of this court, 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., MILLER, CRANE, RIVERA and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court