Appellate Division: Second Judicial Department

M83606

E/nl

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

ROBERT A. SPOLZINO

PETER B. SKELOS

RUTH C. BALKIN, JJ.

2008-11135 In the Matter of Mark Crutchfield, admitted as Mark Edward Crutchfield, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Mark Crutchfield, respondent. (Attorney Registration No. 2212678)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts for an order: 1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that he has failed to submit written answers to complaints of professional misconduct filed against him and that he has failed to comply with the lawful demands of the Grievance Committee made in connection with that investigation; 2) authorizing the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated December 9, 2008; 3) directing the respondent to submit an answer to the petition; and 4) referring the issues raised to a Special Referee to hear and report. Having established that the respondent could not, with due diligence, be served personally, the Grievance Committee was authorized to serve the order to show cause and accompanying papers upon which it is based, as well as any future papers to be served upon the respondent, by substituted service, to wit, by delivering those documents to a person of suitable age and discretion at the respondent 's business address, under which he is currently registered with the Office of Court Administration, and by mailing same to that address by first class mail, as provided by CPLR 308(2). The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 28, 1988, under the name Mark Edward Crutchfield.

Upon the papers submitted in support of the motion and no papers having been submitted in opposition or in 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), the respondent, Mark Crutchfield, admitted as Mark Edward Crutchfield, 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, Mark Crutchfield, admitted as Mark Edward Crutchfield, 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, Mark Crutchfield, admitted as Mark Edward Crutchfield, 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 Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court, against Mark Crutchfield, admitted as Mark Edward Crutchfield, based on the petition dated December 9, 2008; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201-3745, 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 order, the respondent, Mark Crutchfield, admitted as Mark Edward Crutchfield, 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 Honorable Herbert Altman, a retired Acting Supreme Court Justice, New York County, 333 E. 23rd Street-Apt 4D, New York, N.Y. 10010, as Special Referee to hear and report, together with his finding on the issues, and to submit 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, Mark Crutchfield, admitted as Mark Edward Crutchfield, 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 persistent pattern of failing to cooperate with the Grievance Committee's investigations.

I. von Sholly Complaint

On November 30, 2007, the Grievance Committee for the Second, Eleventh, and Thirteen Judicial Districts received a complaint against the respondent from Fred von Sholly alleging, inter alia, that the respondent agreed to represent him in a lawsuit, accepted a $3,750 retainer, did nothing to prosecute his case, and then stopped communicating with him. The Grievance Committee received a second letter on January 22, 2008, alleging that the respondent had stopped communicating, despite repeated efforts to contact him by both complainant and his attorney, and that he continued to neglect his case. A third such letter was received by the Grievance Committee on March 10, 2008.

By letter dated March 20, 2008, sent to the respondent's Brooklyn address, the Grievance Committee enclosed copies of the three von Sholly letters and requested a reply within 10 days. Although that letter was not returned as undeliverable by the United States Postal Service, the respondent failed to reply or to contact the Grievance Committee in any manner. By letter dated April 21, 2008, the Grievance Committee directed the respondent to submit an answer within 10 days and advised him that his continued failure to cooperate could result in an application for his immediate suspension. Although that letter was not returned as undeliverable, the respondent failed to reply.

On June 3, 2008, the Grievance Committee hand delivered another letter to the respondent directing him to answer within 10 days or an application for his immediate suspension would be made. The letter was served on a male employee who confirmed that the respondent receives mail at that location and that the letter would be delivered to him. That address, at which the respondent was registered with the Office of Court Administration (hereinafter OCA), is a commercial mailbox service or mail drop and the respondent does not maintain a desk there. The respondent failed to reply or to contact the Grievance Committee in any manner.

II. Griffin and Marks Complaints

On April 11, 2008, the Grievance Committee received identical complaints from Kimberly Griffin and Richard Marks alleging that the respondent was retained to represent them in three separate matters, was paid a $5,000 cash retainer, did no work, and failed to return irreplaceable documents or refund their retainers. By letter dated June 2, 2008, the Grievance Committee requested the respondent's answer within10 days. Although the letter was not returned by the United States Postal Service as undeliverable, the respondent failed to comply.

On June 20, 2008, the Grievance Committee sent the respondent a letter, via certified and first class mail, directing him to provide an answer to the two complaints within 10 days and warning that his continued failure to cooperate could result in a motion for his immediate suspension. Although the return receipt card made its way to the Grievance Committee as signed and received on June 23, 2008, and the letter sent via first class mail was not returned by the United States Postal Service as undeliverable, the respondent failed to comply.

Further extensive investigation by the Grievance Committee, numerous telephone calls, and unsuccessful attempts to personally serve the respondent revealed that the respondent had changed his address. On August 13, 2008, the Grievance Committee attempted to personally serve two judicial subpoenas on the respondent at his new business address under which he had recently re-registered with OCA. Upon discovering that this was only a mail drop with a telephone answering/message service, the Grievance Committee's investigator left a message card with a request that the respondent telephone the Grievance Committee.

Grievance Counsel telephoned the respondent on August 14, 2008. The respondent revealed that he had received the complaints and requested an additional 20 days in which to respond. The respondent confirmed the telephone conversation and his address in writing, labeled the complaints "sadly frivolous and completely meritless," and provided additional contact numbers where he could be reached. The respondent neither complied nor requested an additional extension of time to reply.

By letter dated September 23, 2008, sent via certified and regular mail, the Grievance Committee directed the respondent to submit answers to the complaints within10 days and again warned that his failure to reply could result in a motion for his immediate suspension. Although the return receipt card indicated delivery and the letter sent via first class mail was not returned as undeliverable, the respondent failed to comply.

On November 20, 2008, the Grievance Committee telephoned the respondent's cell and office numbers and left messages informing him that an order to show cause would be filed seeking his immediate suspension unless he answered the complaints forthwith. To date, the respondent has failed to comply or to request additional time in which to do so.

The Grievance Committee unsuccessfully attempted to serve a prior order to show cause seeking the same relief upon the respondent at his designated home and business addresses. The respondent's designated home address was a personal mail box that he no longer used. The designated business address was merely a mail drop rather than an office. The Grievance Committee's investigator thereafter placed follow-up calls and left messages for the respondent to call him to arrange for personal service of the prior order to show cause. The respondent failed to communicate with the Grievance Committee. Accordingly, the Grievance Committee obtained authorization to serve the respondent via substituted service at the location designated as his place of business, albeit a mail drop. On January 8, 2009, a copy of the order to show cause and accompanying papers was mailed to that address and another copy was delivered to a receptionist. The respondent has failed to submit any reply.

Accordingly, the Grievance Committee's motion is granted, the respondent is immediately suspended and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding.

MASTRO, J.P., RIVERA, SPOLZINO, SKELOS and BALKIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court