Appellate Division: Second Judicial Department

M93579

E/cb

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

STEVEN W. FISHER

JOHN M. LEVENTHAL, JJ.

2009-06839 In the Matter of Ik C. Kim, admitted as Ik Cheol Kim, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Ik C. Kim, respondent. (Attorney Registration No. 2979979)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth 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 professional misconduct immediately threatening the public interest in that he has failed to cooperate with its investigation and uncontroverted evidence of misconduct; (2) authorizing the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated July 11, 2009; (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. 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 28, 1999, under the name Ik Cheol Kim.

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) and (iii), the respondent, Ik C. Kim, admitted as Ik Cheol Kim, 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 Ik C. Kim, admitted as Ik Cheol Kim, 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, Ik C. Kim, admitted as Ik Cheol Kim, 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 Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court, against the respondent, Ik C. Kim, admitted as Ik Cheol Kim, based on the petition dated June 11, 2009; and it is further,

ORDERED that Rita E. Adler, Chief Counsel, Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Hauppauge, N.Y. 11788, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after receipt of a copy of this decision and order on motion, the respondent Ik C. Kim, admitted as Ik Cheol Kim, 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 Norma Giffords, Esq., Randazzo & Giffords, P.C., 3000 Marcus Avenue, Suite 1E11, Lake Success, N.Y. 11042, as Special Referee to hear and report, together with her findings 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, Ik C. Kim, admitted as Ik Cheol Kim, 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 cooperate and other uncontroverted evidence of professional misconduct.

In 2004 through 2006, eight complaints were filed against the respondent, two of which were commenced sua sponte by the Grievance Committee for the Tenth Judicial District.

1. Sua Sponte Complaint (Escrow)

By letter dated June 8, 2006, the Lawyers' Fund for Client Protection advised the Grievance Committee that a check in the amount of $20,000 drawn against the respondent's IOLTA Account was dishonored due to insufficient funds. The Grievance Committee notified the respondent by letter dated June 16, 2006, of such, and requested a written response within 20 days and copies of bank and bookkeeping records for the six-month period preceding the date of the letter. On June 21, 2006, the respondent appeared before the Grievance Committee with counsel on other pending matters and agreed to submit a written explanation of the escrow matter by July 4, 2006. He failed to do so.

By letter dated September 6, 2006, the Grievance Committee requested a written answer and an explanation for his failure to cooperate, within 10 days of receipt of the letter. The respondent failed to submit a written answer or produce the requested documentation. The Grievance Committee sent additional letters dated November 3, 2006, and January 8, 2007, via certified mail, return receipt requested, to the respondent, requesting a response. The respondent did not answer or produce the records within the allotted time frames.

On February 23, 2007, in response to a judicial subpoena and judicial subpoena duces tecum, the respondent appeared before the Grievance Committee and testified that he represented the sellers in a real estate transaction and that he received a check in the amount of $20,000 representing the down payment from the buyer; however, he failed to produce any records. The respondent was given until March 9, 2007, to provide a written answer and produce the requested records. He failed to do so.

Despite further attempts by the Grievance Committee to secure compliance with its requests, including letters and notices to appear, the respondent did not produce the requested records. He did, however, provide a written explanation by letter dated July 30, 2008.

The Grievance Committee ultimately obtained copies of the respondent's escrow records by subpoena from Bank of America. The bank records reveal that a $20,000 down payment was deposited into the respondent's IOLTA account on or about April 3, 2006; that on April 19, 2006, the balance fell below $20,000 ($19,150); that on May 15, 2006, the balance fell to $16,349.36; and that on May 15, 2006, the respondent issued a check to Burke & Burke in the amount of $20,000, which was dishonored due to insufficient funds on May 18, 2006. On May 19, 2006, the respondent deposited $7,500 into his IOLTA account to cover the deficiency. Between May 22 and May 26, 2006, there were several deposits and withdrawals unrelated to the real estate transaction, causing the balance to drop to $22,749,36. On May 30, 2006, the respondent issued a replacement check, which cleared. The respondent thereafter withdrew the remaining balance from the account.

2. Sua Sponte Complaint (Registration)

By letter dated June 16, 2006, the respondent was notified by the Grievance Committee that a sua sponte complaint and investigation had been commenced against him based on his failure to register as an attorney with the Office of Court Administration (hereinafter OCA) and advised him to immediately comply with Judiciary Law § 468-a and 22 NYCRR 118.1 by re-registering. He was asked to provide proof of compliance within 30 days of receipt of the letter. At his June 21, 2006, appearance before the Grievance Committee, the respondent agreed to submit a written answer to the registration matter by July 4, 2006. He failed to re-register by that date and failed to submit an answer.

Despite multiple letters subsequently sent to the respondent in 2006, 2007, and 2008 to secure his compliance, the respondent, to date, has neither re-registered nor provided a written explanation for his failure. The respondent is presently delinquent with his registration fees for the periods 2005-2006, 2007-2008, and 2009-2010.

3. Complaint of Louis Comito

On October 6, 2004, the Grievance Committee received a complaint from Louis Comito, alleging that the respondent had neglected his lawsuit against his former employer and that the respondent failed to communicate with him concerning this matter.

By letter dated October 21, 2004, the respondent was sent a copy of Comito's complaint and was requested to submit a written response within 15 days of receipt of the letter. The respondent failed to submit an answer within the allotted time frame. Not until two additional letters by the Grievance Committee were sent to secure his compliance did the respondent submit a written answer by letter dated January 28, 2005. The respondent thereafter provided supplemental information and documentation requested by the Grievance Committee, but not in a timely fashion. On June 4, 2008, the Grievance Committee requested updated information on the Comito file by June 20, 2008. To date, the respondent has failed to provide an update.

4. Complaint of Darin Kesler

On August 26, 2005, the Grievance Committee received a complaint from Darin Kesler, alleging that the respondent failed to pay an arbitration award that had been awarded to Kesler by the Fee Dispute Resolution Committee in February 2005.

By letter dated September 7, 2005, the respondent was sent a copy of Kesler's complaint and was requested to submit a written response, within 15 days of receipt of the letter. The respondent failed to submit an answer within the allotted time frame. By letter dated December 9, 2005, the respondent submitted a written response to the Kesler complaint, but only after two additional letters had been sent by the Grievance Committee. The respondent's answer, however, included in his answer other information related to other pending matters. Consequently, the Grievance Committee by letter dated January 12, 2006, asked the respondent to resubmit his answer to address only the Kesler complaint, so that the Grievance Committee could provide the answer to Kesler for a reply. The respondent failed to do so within the allotted time frame, and failed to do so after a subsequent letter was sent by the Grievance Committee.

At his June 21, 2006, appearance before the Grievance Committee, which was in response to a judicial subpoena and judicial subpoena duces tecum, the respondent agreed to provide his outstanding answer by July 4, 2006, and agreed to pay the arbitration award in connection with the Kesler matter. By letter dated July 5, 2006, the respondent submitted his amended answer, but failed to pay the arbitration award.

By letter dated June 8, 2008, the Grievance Committee requested that the respondent provide additional information in connection with the Kesler matter by June 27, 2008. To date, the respondent has not provided the additional information requested.

5. Complaint of Kenneth O'Pray

On July 24, 2006, the Grievance Committee received a complaint from Kenneth O'Pray, alleging that the respondent failed to properly represent him with regard to obtaining a foreign visa for his fiancee. By letter dated July 31, 2006, the respondent was sent a copy of O'Pray's complaint and was asked to submit a written response within 15 days of receipt of the letter. The respondent failed to comply.

Despite further attempts by the Grievance Committee to secure compliance with its requests, including letters and notices to appear, the respondent has neither provided a written answer to the complaint nor provided the requested documentation.

6. Complaint of Clifford Petterson

On September 16, 2004, the Grievance Committee received a complaint from Clifford Petterson, alleging that the respondent failed to competently handle his matters pending in various courts.

By letter dated September 28, 2004, the Grievance Committee referred Petterson's complaint to the Suffolk County Bar Association Grievance Committee for investigation. The Suffolk County Bar Association advised the respondent of Petterson's complaint and requested a response by November 18, 2004. By letter dated November 24, 2004, the respondent submitted a written answer, but failed to address in detail the allegations made by Petterson. By letter dated March 31, 2005, the Suffolk County Bar Association returned the matter back to the Grievance Committee.

By letter dated April 5, 2005, the Grievance Committee advised the respondent that his answer submitted to the Suffolk County Bar Association was inadequate and requested that he submit a written answer within 10 days of receipt of the letter. The respondent failed to do so. To secure the respondent's compliance, the Grievance Committee sent two additional letters, dated May 23, 2005, and July 5, 2005. The respondent failed to comply within the allotted time frames.

On August 25, 2005, in response to a judicial subpoena and judicial subpoena duces tecum, the respondent appeared before the Grievance Committee, but failed to bring the underlying file related to the Petterson matter. Although the respondent agreed to secure the file and submit an answer, he failed to do so.

By letter dated December 9, 2005, the respondent submitted a written answer and billing statements, but only after the Grievance Committee had sent two additional letters requesting his compliance. However, the respondent failed to produce the Petterson file.

At his June 21, 2006, appearance before the Grievance Committee, the respondent failed to produce the Petterson file. The respondent was directed to secure the file and submit a supplemental written answer detailing the services provided on behalf of Petterson by July 4, 2006. By letter dated July 5, 2006, the respondent, through counsel, submitted a written answer, but the answer was insufficiently detailed. No file was produced. To date, the respondent has failed to produce a full response and the file requested.

7. Complaint of Jorge Rodriguez

The Grievance Committee received two complaints dated November 1, 2004 and October 19, 2005, from Jorge Rodriguez, alleging that the respondent neglected two civil matters for which he had been retained and failed to communicate with Rodriguez regarding these matters.

By letter dated November 1, 2005, the respondent was sent a copy of the October 19, 2005, complaint and requested to submit a written response, within 15 days of receipt of the letter. The respondent failed to comply. Another letter dated December 1, 2005, was sent by the Grievance Committee to secure the respondent's compliance. By letter dated December 9, 2005, the respondent submitted an answer to the Rodriguez allegations, but included in his answer information pertaining to other pending matters. Consequently, by letter dated December 27, 2005, the Grievance Committee requested that the respondent resubmit his answer, addressing only the Rodriguez complaint to allow Rodriguez an opportunity to respond. The respondent failed to comply and still failed to comply despite a subsequent letter sent by the Grievance Committee.

By letter dated February 3, 2006, sent via certified mail, return receipt requested, the Grievance Committee reiterated its request and asked that he submit an amended written response, within 10 days of receipt of the letter. The respondent filed to do so. At his June 21, 2006, appearance before the Grievance Committee, the respondent failed to bring with him an amended answer and the Rodriguez file. The respondent was directed to secure the file and submit an amended answer by July 4, 2006. By letter dated July 5, 2006, the respondent, through counsel, submitted an amended answer.

8. Complaint of Christopher Dell'Olio

On February 7, 2006, the Grievance Committee received a complaint from Christopher Dell'Olio, alleging that the respondent failed to competently represent him with respect to his paternity/custody matter, failed to properly communicate with him, and failed to refund his retainer fee. By letter dated February 21, 2006, the respondent was sent a copy of the Dell'Olio's complaint and was asked to submit an answer within 15 days of receipt of the letter. The respondent failed to comply.

At his June 21, 2006, appearance before the Grievance Committee, the respondent failed to bring with him his written answer and the Dell'Olio file. The respondent was directed to secure the file and submit an answer by July 4, 2006. By letter dated July 5, 2006, the respondent, through counsel, submitted his written answer.

In various communications with the respondent throughout the Grievance Committee's investigation of the eight different complaints described above, the Grievance Committee advised the respondent that his failure to respond or cooperate constituted professional misconduct independent of the merits of the underlying complaint, and that the Grievance Committee was authorized to move to suspend from practice any attorney who fails to cooperate with the Grievance Committee.

Based on the foregoing, the 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, and the matter is referred to a Special Referee to hear and report.

PRUDENTI, P.J., MASTRO, RIVERA, FISHER and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court