Appellate Division: Second Judicial Department

M70672

E/nl

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

STEVEN W. FISHER

ROBERT A. LIFSON

DAVID S. RITTER, JJ.

2008-02426 In the Matter of Donna A. Campbell, admitted as Donna Antoinette Campbell, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Donna A. Campbell, respondent. (Attorney Registration No. 2766913)

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)(ii) and/or (iii), upon a finding that she is guilty of professional misconduct immediately threatening the public interest in that she has committed acts of professional misconduct 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 March 12, 2008; (3) directing the respondent to answer the petition; and (4) referring the issues raised 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 November 27, 1996, under the name Donna Antoinette Campbell.

Upon the papers submitted in support of the motion and the papers submitted 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)(ii) and (iii), the respondent, Donna A. Campbell, admitted as Donna Antoinette Campbell, 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 Donna A. Campbell, admitted as Donna Antoinette Campbell, 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, Donna A. Campbell, admitted as Donna Antoinette Campbell, 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 Donna A. Campbell, admitted Donna Antoinette Campbell, based on the petition dated March 12, 2008; 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 her of a copy of this order, 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 the Hon. William E. Sherwood, a retired Justice of the Supreme Court, Rockland County, 19 Wiles Drive, Stony Point, N.Y. 10980, 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, Donna A. Campbell, admitted as Donna Antoinette Campbell, 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 substantial admissions she has made under oath that she has committed acts of professional misconduct and other uncontroverted evidence of professional misconduct.

The Hermitt Complaint

The petition emanates from a complaint dated February 20, 2007, by Cecille Hermitt and her husband, Leslie Hermitt, alleging that the respondent neglected a legal matter entrusted to her.

Cecille Hermitt was apparently solicited by a California law firm as a potential plaintiff in a class-action lawsuit against Eli Lilly, the manufacturer of the drug Zyprexa, which was withdrawn from the market due to its side effects. Ms. Hermitt, who was prescribed Zyprexa for depression, allegedly suffered from the drug's various side effects.

The Hermitts initially sought legal advice from Rohan Barnett and David Bowen, Esqs., who referred the matter to the respondent. Following an initial meeting between the Hermitts and the respondent in July 2004, at the respondent's request, Ms. Hermitt provided the respondent with copies of her medical records for review and evaluation.

In September 2004, the respondent sent Ms. Hermitt's medical records to a forensic nurse, Linda Artson, for evaluation. Artson reviewed the records and prepared a report which was forwarded to the respondent on or about October 18, 2004. The respondent determined that Ms. Hermitt had a valid claim.

The respondent prepared and executed a contingent retainer agreement dated December 14, 2004. Although the respondent was aware of her obligation to file the retainer agreement with the Office of Court Administration, she failed to do so. The respondent also prepared and executed a referral agreement whereby she agreed to pay the referring attorneys 25% of any fees she recovered regarding the Hermitt matter, but which did not require the referring attorneys to do any work on the case.

After providing the respondent with her medical records, Ms. Hermitt heard nothing from the respondent regarding her case. After many unreturned telephone calls, in January or February 2005, Ms. Hermitt finally spoke to the respondent who informed her that she was going to join her in a Texas class-action lawsuit. Thereafter, the Hermitts heard nothing from the respondent. The Hermitts called the respondent, but she did not return their calls. On or about January 12, 2007, the Hermitts met with one of the referring attorneys regarding a real estate matter and advised him that they had not heard from the respondent. Several days later, one of the referring attorneys advised the Hermitts that he had spoken to the respondent, who informed him that she had joined Ms. Hermitt to a Texas class-action suit and would be in touch with them. The statement that the respondent had joined Ms. Hermitt to the class action was false. On or about January 17, 2007, the respondent repeated the statement about joining Ms. Hermitt to the Texas class- action suit to Mr. Hermitt, adding that his wife was at the bottom of the list of plaintiffs, and as a consequence, it would be some time before there would be a result.

A week later, on or about January 22, 2007, the respondent telephoned the Howard Nations Law Firm (hereinafter the Nations firm) to inquire about Ms. Hermitt joining a class-action suit that the firm was handling against Eli Lilly. Later that day, an attorney from the Nations firm faxed the respondent a Power of Attorney and Fee Contract, as well as other forms for Ms. Hermitt to sign. The forms were to be returned by overnight mail, whereupon, the Nations firm would send the respondent its attorney referral letter. The transmittal letter received from the Nations firm referenced "a fast-approaching statute of limitations deadline regarding Ms. Hermitt's claim, so it is important we get authorized to represent her soon."

The respondent advised the Hermitts regarding the necessity of signing various paperwork in connection with the class-action suit. After canceling one appointment and failing to show up for another, the respondent went to the Hermitts' home, without an appointment, on January 25, 2007, and had Ms. Hermitt sign the papers which had been faxed to her. Ms. Hermitt called her husband, who requested that the respondent wait at the home until he returned, which would take half an hour. The respondent said that she could not wait because she had to get the papers to Federal Express. Ms. Hermitt did not know what she had signed. The respondent promised to provide her with copies.

Mr. Hermitt telephoned the respondent when he got home, but the respondent was evasive in her answers. The call suddenly terminated, and the respondent did not call back. The respondent allegedly made copies, but never sent them to Ms. Hermitt. The respondent never took the signed documents to Federal Express for mailing because she had to catch a flight to Atlanta. The respondent admittedly never sent the signed documents to the Nations firm. Ms. Hermitt was never joined and the statute of limitations for filing an action expired. When asked at her investigative appearance before the Grievance Committee if she had an explanation for her neglect of the Hermitt case, the respondent answered, "No, I do not." By letter dated January 27, 2007, the Hermitts terminated the respondent's services and asked for their files to be returned within 15 days. The respondent did not return the files and when asked at her investigative appearance why she did not return the files, she stated that she had no excuse.

The Hermitt client file indicates that the respondent took no action to advance the lawsuit between the time she received Artson's report on or about October 22, 2004, to the time she telephoned the Nations firm on January 22, 2007. She allegedly made various inquires, but these are not documented in the file. At the respondent's investigatory appearance on May 23, 2007, she could provide no excuse for her inaction.

The respondent disclosed at her investigatory appearance that she had an unwritten agreement with another attorney who was working with her on the matter, but refused to disclose the name of the attorney, even after being advised that her refusal could be construed as a failure to cooperate with the investigation.

Failure to Cooperate

A copy of the Hermitts' grievance was forwarded to the respondent by letter dated February 27, 2007. The respondent failed to submit an answer or request an extension of time in which to do so, even though she was advised that failure to comply constituted professional misconduct independent of the merits of the complaint. The respondent failed to answer a Grievance Committee follow-up letter dated March 15, 2007, which was sent by certified mail, return receipt requested, further advising the respondent that an unexcused failure to comply could cause the Grievance Committee to move for her immediate suspension from the practice of law. The respondent received the letter and the receipt was returned to the Committee on March 21, 2007.

On April 25, 2007, Grievance Counsel called the respondent and left a message that she would be subpoenaed if she did not return the call. The respondent returned the call and agreed to submit her overdue answer within two days. The respondent's two-paragraph answer was received by the Grievance Committee on April 30, 2007. Advised subsequently that her answer was insufficient, she agreed to produce the Hermitt file. Upon receipt and review of the file, Grievance Counsel left a telephone message for the respondent asking her to call so as to set up a mutually agreed upon date for her appearance. The respondent did not return the call. On May 5, 2007, the Grievance Committee served the respondent with a so-ordered subpoena for her appearance at its offices on May 23, 2007, to give sworn testimony. Advised of her right to appear with counsel, the respondent elected to appear pro se.

At the May 23, 2007, investigatory appearance, the respondent agreed to produce certain documents and information by June 1, 2007. The respondent failed to comply even after the deadline was extended to June 6, 2007.

On June 1, 2007, the respondent communicated to Grievance Counsel that she had been in contact with the Nations firm and learned of the possibility of still joining Ms. Hermitt to the class-action suit.

On June 6, 2007, the respondent advised the Grievance Committee that she sent the retainer agreement signed by Ms. Hermitt to the Nations firm. Subsequently, she learned that the statute of limitations expired on March 1, 2007.

On July 24, 2007, the respondent advised Grievance Counsel that the parties, through Mr. Barnett, had agreed that the respondent would pay Ms. Hermitt the sum of $95,000 by mid-September as a private settlement. On September 12, 2007, Mr. Barnett advised Grievance Counsel that the respondent had not complied and had requested additional time in order to acquire the necessary funds via the sale of certain investment property. Although her time to comply was extended until September 26, 2007, the respondent reported that the closing fell through because the buyer lacked the funds. On September 26, 2007, the respondent advised that she had applied for a home equity line of credit with the Wells Fargo Bank and had requested a further extension of time from Mr. Barnett.

Having heard nothing from the respondent, on October 12, 2007, Grievance Counsel left a message for the respondent to call. The respondent failed to do so. On October 18, 2007, Mr. Barnett advised that the respondent had not paid the funds due under the settlement agreement and had not returned his calls.

By letter dated October 25, 2007, Grievance Counsel recounted the events and requested a response by November 2, 2007. The respondent was warned that an unexcused failure to comply could cause the Grievance Committee to move for her immediate suspension from the practice of law. The respondent failed to respond or request additional time.

On November 13, 2007, Richard Grayson, Esq., advised the Grievance Committee that he had been retained by the respondent. He requested an extension of time in which to reply to the October 25, 2007, letter. The respondent's response was received by the Grievance Committee on November 27, 2007. The respondent stated that she never signed the settlement agreement because she was unsure when she would receive funding, and that she did not return Mr. Barnett's calls because she was out of the country in Jamaica. She further stated that a structured settlement agreement, executed on November 15, 2007, had been worked out in lieu of a lump sum payment.

The respondent was unable to locate some of the documentation requested by the Grievance Committee. Other documentation supplied by the respondent was found inadequate by the Grievance Committee.

Annexed to the Grievance Committee's motion papers is a petition dated March 12, 2008, containing 11 charges of professional misconduct against the respondent.

In opposition to the motion, the respondent admits that she neglected the Hermitt matter, but that she is making restitution in the form of a $95,000 private settlement. She denies having made false statements regarding joining Ms. Hermitt in a Texas class-action lawsuit. She never advised anyone that Ms. Hermitt had been joined, only that Ms. Hermitt was going to be joined, which she believed to be a true statement at the time. She attributes communication difficulties she had with the Hermitts to problems with her phone. With regard to her responses to the Grievance Committee's requests, the respondent states: "I have at times not met the [timelines] requested by the Committee but I have never failed to cooperate." In mitigation, the respondent brings to the court's attention the fact that she has freely given of her time working to assist domestic violence victims, and was appointed several times as a guardian ad litem and court evaluator in guardianship proceedings in various courts.

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)(ii) and (iii), pending further order of this court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against her, and the matter is referred to a Special Referee to hear and report.

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

ENTER:

James Edward Pelzer

Clerk of the Court