Appellate Division: Second Judicial Department

M66422

E/nl

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

STEVEN W. FISHER

ROBERT A. LIFSON, JJ.

2007-11229 In the Matter of J. Bennett Farrell, admitted as John Bennett Farrell, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; J. Bennett Farrell, admitted as John Bennett Farrell, respondent. (Attorney Registration No. 1368448)

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) 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 in connection with its investigation and based upon other uncontroverted evidence of professional misconduct; (2) authorizing it to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a petition dated December 3, 2007; (3) directing the respondent to answer the petition, and (4) referring the issues raised by the petition and any answer interposed thereto to a Special Referee to hear and report. Separate motion by the Grievance Committee to appoint an inventory attorney to take custody and examine the files left behind by the respondent and to arrange for their proper disposition. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 23, 1971, under the John Bennett Farrell.

Upon the papers submitted in support of the motions and the papers submitted in opposition thereto, it is

ORDERED that the motions are granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent, J. Bennett Farrell, admitted as John Bennett Farrell, 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, J. Bennett Farrell, admitted as John Bennett Farrell, 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, J. Bennett Farrell, admitted as John Bennett Farrell, 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 J. Bennett Farrell, admitted John Bennett Farrell, based on the petition dated December 3, 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 thereto are referred to Steven C. Krane, Esq., c/o Proskauer Rose, LLP, 1585 Broadway, 17th Floor, New York, N.Y. 10036-8299, as Special Referee to hear and report and to file a 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, J. Bennett Farrell, admitted John Bennett Farrell, 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); and it is further,

ORDERED that Robert E. Martinez, Esq., Martinez & Associates, PLLC, 110 Washington Street, Peekskill, N.Y. 10566, is appointed as an inventory attorney, pursuant to 22 NYCRR 691.(k), to: (1) take custody of and inventory the respondent's files and return them to his former clients, (2) take custody of and safeguard the records of any business, escrow, trust, or special bank account of the respondent, (3) receive, open, and read mail addressed to the respondent at the respondent's former place of business, and (4) take such further action as is deemed proper and advisable to protect the interests of the respondent's former clients in discharging the aforesaid duties, and secondarily, the interests of the respondent attorney.

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 for the Ninth Judicial District and other uncontroverted evidence of professional misconduct.

Sua Sponte Complaints

(a) Abandonment of Practice

On September 14, 2007, the Orange County Bar Association (hereinafter the Bar Association) was contacted by John Gessner, the owner of the property at 107 Stage Road, Monroe. Gessner reported that the respondent had vacated the premises, leaving behind furniture and files. Gessner further advised that in an eviction proceeding filed with the Town of Monroe, a warrant for removal had been issued. In that same proceeding, the respondent obtained access to the locked premises, but departed without removing the files. The respondent's belongings were subsequently removed and placed on the curb by the Orange County Sheriff. The respondent's files (ten boxes), however, have been voluntarily retained by Gessner, until they can properly be disposed of.

On September 20, 2007, a news article appeared in the Times Herald-Record, entitled, "The case of the missing lawyer," wherein it was reported that the respondent had abruptly left town, leaving behind his belongings and case files, and that because the latter contained confidential client matter respondent could be found guilty of various ethical violations. Soon thereafter, the Bar Association received telephone calls from several of the respondent's clients inquiring how they could contact the respondent in order to obtain wills the respondent was holding. On September 28, 2007, the Bar Association contacted the Grievance Committee concerning the respondent, his whereabouts, and the disposition of his files.

(b) Failure to Timely Re-Register

In the course of the Grievance Committee's investigation, it was discovered that the respondent failed to timely re-register as an attorney with the New York State Office of Court Administration in December 2006.

Complaint of David Donovan, Esq.

On or about October 11, 2007, the Grievance Committee received a complaint from David A. Donovan, Esq., alleging possible conversion of client funds by the respondent. Mr. Donovan advised that he represented Hunter Allen and Kayla Allen in an attempted purchase of certain real property owned at that time by Stuart Scott, represented by the respondent. A contract of sale was executed and delivered to Mr. Donovan by cover letter dated March 4, 2005. Pursuant to the terms of the contract of sale, a down payment of $17,500 was tendered by the Allens, to be held by the respondent "in an escrow trust account at M & T Bank, Lake Monroe, NY 10950, until closing or sooner termination of this contract." The contract further provided that the respondent as ecrowee "shall hold the down payment in an interest bearing account for the benefit of the parties." When a dispute developed between the buyers and the seller, the respondent took the position that the buyers were in default. The respondent notified Mr. Donovan of his intent to release the down payment to the seller unless objected to within 10 days. Mr. Donovan promptly objected. The parties attempted to resolve their dispute, but were initially unsuccessful. Meanwhile, Mr. Donovan began hearing rumors that the respondent might soon be "retiring," or had "retired" from the practice of law. Whereupon, Mr. Donovan wrote to the respondent by letter dated June 27, 2007, and requested that the down payment be held by an alternate escrowee or deposited into court. In September 2007, the parties settled their dispute, deciding that the sum of $10,000 would be paid to the Allens and the sum of $7,500, along with any interest, would be paid to Scott. Scott wrote to the respondent informing him of the settlement and sent his letter to the defunct law office at 107 Stage Street. Mr. Donovan, too, wrote to the respondent at the same location. Mr. Donovan heard nothing from the respondent, prompting him to file a complaint with the Grievance Committee.

In a preliminary investigation, the Grievance Committee ascertained that the respondent had moved to an area north of Lake George, New York, and eventually obtained a working telephone number for respondent. The Grievance Committee contacted the respondent directly on October 16, 2007. The respondent advised the Committee that he had "retired" from the practice of law and gave a local address where he could be reached. He further advised that he had spoken with Mr. Donovan about the status of the Allen/Scott escrowed monies. The respondent left a voice mail message for Mr. Donovan on October 11, 2007, informing him that he had transferred the sum of $17,500 to another attorney, Matthew T. Bennett of Mirro & Bennett. Mr. Donovan contacted Matthew T. Bennett, but the latter advised that he had received no escrow monies from the respondent. Mr. Donovan called the respondent on October 12, 2007, pressing him for a status of the $17,500 escrow. The respondent stated that he would check his account, but he did not believe he had "that much money. " The Grievance Committee served a subpoena duces tecum on M & T Bank regarding any and all attorney, checking, savings, or other accounts maintained by the respondent at any branch of M & T Bank during the period January 1, 2007, to the present. M & T Bank conducted a search and found no such accounts.

On October 19, 2007, the Grievance Committee sent, by first class and certified return receipt mail, copies of the Donovan complaint and the sua sponte complaints to the respondent. The respondent was advised to submit an answer to the allegations within 10 days. He was further advised that failure to timely submit an answer constituted professional misconduct, independent of the underlying matters. Tracking the mail deliveries on the United States Postal Service website, the Committee confirmed that the respondent received copies of the complaints as he personally signed for them at approximately 12:40 P.M. on October 22, 2007, at Brant Lake, New York. While more than 10 days have elapsed since October 22, 2007, the respondent has not submitted a response to the complaints.

Complaint of Linda Strenkert Schembri

On November 13, 2007, the Grievance Committee received a complaint from Linda Strenkert Schembri alleging that the respondent had failed to prepare or file a Qualified Domestic Relations Order (hereinafter QDRO) that she had paid him to prepare. The respondent represented Schembri in a divorce action in 1988 and under the terms of the judgment she was to receive one-half her husband's pension from Lone Star Industries. Although it was Schembri's recollection that the QDRO was to be prepared at the time of the divorce, it was not done. Schembri contacted the respondent in late 2004 or early 2005 about the QDRO, and eventually agreed to pay the respondent $500 to complete the QDRO. On April 4, 2005, Schembri sent the respondent a check for $500 and related documents. Several months later, Schembri called for a status report. Although the respondent's secretary took a message, Schembri did not hear from the respondent. Schembri left several more messages and received no reply. Finally, in December 2005, Schembri called the office and the respondent answered the phone. The respondent stated that he would complete the QDRO for her. Despite several follow- up calls from Schembri, the respondent has not completed the work or communicated with her.

Annexed to the Grievance Committee's motion papers is a proposed petition dated December 3, 2007, containing ten charges of professional misconduct against the respondent.

In papers submitted in opposition to the motion, the respondent, inter alia, denies the allegations contained in the petition and denies that the files left behind belong to him. However, he admits that he failed to timely re-register with the Office of Court Administration but asserts that he has corrected his registration to indicate that he has been retired from the practice of law since July 1, 2007. He also admits that he made a "grave mistake" with regard to the Allen/Scott escrow money.

The Grievance Committee dispatched a member of its staff to personally examine the disputed files. Examination revealed that the boxes contained numerous files created by the respondent incident to his practice of law and that the files contain confidential client information.

Based on the foregoing, 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) and (iii), pending further order of this court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, the matter is referred to a Special Referee to hear and report, and an inventory attorney is appointed to examine and dispose of the files left behind by the respondent.

PRUDENTI, P.J., RIVERA, SKELOS, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court