Appellate Division: Second Judicial Department

D94146

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WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

PETER B. SKELOS

STEVEN W. FISHER

DANIEL D. ANGIOLILLO, JJ.

2009-01443 In the Matter of Martin K. Lang, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Martin K. Lang, respondent. (Attorney Registration No. 1914365)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: (1) authorizing it to amend and supplement a petition dated February 9, 2009, to include additional factual allegations and charges arising from eight additional complaints; and (2) suspending the respondent pursuant to 22 NYCRR 691.4(l)(1)(i) and (ii) based upon his professional misconduct immediately threatening the public interest. Pursuant to order to show cause of the Honorable Leonard B. Austin dated September 1, 2009, the pending disciplinary proceeding was stayed pending hearing and determination of this motion. By decision and order on application dated June 23, 2009, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent based on the petition dated February 9, 2009, and the issues raised were referred to the Honorable Stanley Harwood, as 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 28, 1984.

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 the Grievance Committee for the Tenth Judicial District is authorized to amend and supplement the petition dated February 9, 2009, to include additional factual allegations and charges emanating from eight additional complaints; and it is further,

ORDERED that the Grievance Committee shall serve upon the respondent, Martin K. Lang, and the Special Referee and shall file with this court an amended and supplemental petition within 20 days after its receipt of a copy of this order; and it is further,

ORDERED that the respondent, Martin K. Lang, shall serve an answer to the petition upon the Grievance Committee and the Special Referee and shall file the original with this court, within 20 days after service of the amended and supplemental petition upon him; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i) and(ii), the respondent, Martin K. Lang, 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, Martin K. Lang, 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, Martin K. Lang, 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 if the respondent, Martin K. Lang, 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 the parties are directed to proceed with the authorized disciplinary proceeding before the Honorable Stanley Harwood as Special Referee.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with an investigation of the Grievance Committee for the Tenth Judicial District and substantial admissions under oath.

During the interval of 2003 through 2008, the Grievance Committee received and investigated complaints against the respondent from 20 complainants. In all of those matters, the respondent failed to timely or properly cooperate with the Grievance Committee's investigations. After the respondent failed to reply to multiple requests to arrange for an examination under oath, he had to be subpoenaed for an examination on August 2, 2007, with respect to seven complaints then opened. The examination was adjourned to August 16, 2007, when the respondent appeared 45 minutes late without files for six of the matters subpoenaed. The respondent had only begun searching for the subpoenaed files the day before.

At the August 16, 2007, examination, the respondent was directed to submit answers to two additional complaints. He submitted answers in September 2007 but failed to reply to followup letters. Additional complaints arrived while these matters were under investigation. By June 2008, six additional files were opened against the respondent. He failed to reply to multiple requests for written answers in those matters or to submit to an examination under oath. On June 2, 2008, a judicial subpoena and subpoena duces tecum were issued requiring production of the files by July 1, 2008, and scheduling the examination under oath for July 10, 2008. Between service of the subpoenas and the July 10, 2008, date for the examination under oath, three more complaints were opened against the respondent.

The examination under oath commenced on July 10, 2008. The respondent was hand delivered two of the new complaints and the examination was continued to September 2, 2008. Two more complaints were opened before the continued examination on September 2, 2008. Although the respondent was asked to submit answers to the most recent complaint, he failed to do so.

At his examinations under oath, the respondent made repeated admissions that he failed to submit a written answer to most of the complaints within the time requested, failed to reply to requests to arrange for an examination under oath, had to be subpoenaed, and repeatedly failed to timely or promptly refund unused portions of retainer fees.

Each of the eight new complaints alleged, inter alia, failure to timely refund unearned balances of retainer fees and failure to reply to client inquiries about that issue. The respondent again demonstrated his pattern and practice of failing to reply to letters sent to him by both regular and certified mail. He was ultimately subpoenaed for an examination under oath to be conducted on May 29, 2009.

Phipps Complaint

By letter dated November 7, 2008, the Grievance Committee enclosed a copy of a January 29, 2008, complaint from Jimmy C. Phipps and noted that the investigation was reopened based on the respondent's alleged failure to cooperate with fee dispute arbitration. The Grievance Committee requested a written answer to the complaint within 10 days and reminded the respondent that an unexcused failure to reply constituted professional misconduct independent of the merits. The respondent failed to reply. By letter dated April 20, 2009, sent via regular and certified mail, the Grievance Committee called for the respondent's answer within 10 days and reminded him that failure to respond or to otherwise cooperate constituted professional misconduct independent of the merits of the complaint. The respondent failed to comply.

Spillane Complaint

By letter dated October 6, 2008, the Grievance Committee requested a written response within 10 days and reminded the respondent that an unexcused failure to answer constituted professional misconduct independent of the merits of the complaint. The respondent failed to comply. By letter dated February 4, 2009, sent via regular and certified mail, the Grievance Committee called for the respondent's answer within 10 days and reminded him that failure to respond or to otherwise cooperate constituted professional misconduct independent of the merits of the complaint. The respondent failed to comply. By letter dated March 18, 2009, sent via regular and certified mail, the Grievance Committee called for a written response within five days and reminded the respondent that it was authorized to move for the suspension of any attorney who fails to cooperate with a disciplinary investigation. The respondent still failed to comply.

Conklin Complaint

The respondent similarly failed to comply with requests made by the Grievance Committee in its letters dated October 2, 2009, February 4, 2009, and March 18, 2009, the latter two of which were also sent via certified mail.

Clark Complaint

The respondent similarly failed to comply with requests made by the Grievance Committee in its letters dated December 5, 2008, February 4, 2009, and March 8, 2009, the latter two of which were also sent via certified mail.

Contino Complaint

The respondent similarly failed to comply with requests made by the Grievance Committee in its letters dated December 4, 2008, February 4, 2009, and March 18, 2009, the latter two of which were also sent via certified mail.

Leggio Complaint

The respondent similarly failed to comply with requests made by the Grievance Committee in its letters dated January 7, 2009, February 4, 2009, and March 28, 2009, the latter two of which were also sent via certified mail.

Scolaro Complaint

The respondent similarly failed to comply with requests made by the Grievance Committee in its letters dated February 13, 2009, and March 18, 2009, the latter of which was also sent via certified mail.

Siskind Complaint

The respondent similarly failed to comply with requests made by the Grievance Committee in its letters dated February 23, 2009, and March 18, 2009, the latter of which was also sent via certified mail.

As of the date of the Grievance Committee's motion, the respondent had not submitted answers to any of the eight complaints. Accordingly, a judicial subpoena for an examination under oath, returnable May 28, 2009, and a subpoena for the production of files, returnable on May 21, 2009, were served on the respondent for the third time on April 23, 2009.

On May 20, 2009, the respondent called Grievance Counsel to request an additional two or three weeks to review his files and submit written answers to the complaints. Grievance Counsel agreed to extend the return date of the document subpoena to May 26, 2009, to give the respondent additional time to review his files for the examination under oath. Although the respondent was instructed to deliver the subpoenaed files on May 26, 2009, he failed to do so. Grievance Counsel contacted the respondent and instructed him to deliver the files on May 27, 2009. The respondent complied.

At the examination under oath, which was adjourned to May 29, 2009, the respondent made substantial admissions that he had committed acts of professional misconduct. The respondent acknowledged receiving the Grievance Committee's letters in each matter and not replying to them due to time constraints.

With respect to most of the complaints, the respondent admitted that he owed fee refunds to the complainants but attributed his failure to repay to time constraints. The respondent testified that he paid one complainant, Ms. Clark, but admitted that he had no organized plan by which to prioritize his payments. The respondent admitted using his operating account as a personal bank account to make mortgage, car, and utility bill payments. Notwithstanding that the intake of the respondent's law firm for 2007 and 2008 combined was approximately $2 million, he allegedly lacked the revenues to repay the complainants.

The Grievance Committee proposes to supplement charges one through eight and charge ten of the original petition to include the eight new complaints and to add charge twelve alleging that the respondent engaged in conduct that is prejudicial to the administration of justice, in violation of DR 1-102(a)(5), and failing to promptly pay or deliver to the client or a third person as requested the funds, securities or other properties in his possession which the client or third person was entitled to receive, i.e., the client file, in violation of DR 9-102(c)(4), with respect to the Siskind complaint.

The Grievance Committee served the current petition on the respondent on July 1, 2009. After obtaining an extension, the respondent filed a verified answer on or about August 4, 2009. The Special Referee scheduled a pre-hearing conference on September 3, 2009. A stay of the proceeding was sought in order to incorporate the additional allegations of misconduct rather than having to address them in piecemeal fashion in a separate proceeding.

In conclusion, the Grievance Committee submits that the respondent's interim suspension is warranted based upon the uncontroverted evidence of his obstruction of its legitimate function of investigating the twenty-eight complaints against him, which spanned several years and required that he be subpoenaed three times to submit his files and appear for examinations under oath. At the time of the motion, the respondent had yet to submit answers to the eight most recent complaints as well as two earlier ones. Per the Grievance Committee, the evidence reveals that the respondent has, for years, engaged in a pattern and practice of taking in retainer fees and failing to timely or promptly return the unused portions. When the complaints poured in, the respondent engaged in a pattern and practice of obstructing the Grievance Committee in its investigations. The Grievance Committee submits that there is nothing to indicate that the respondent will not continue to act in that manner during the pendency of the disciplinary proceeding.

The respondent submitted an affidavit in opposition to the Grievance Committee's motion in which he states that he does not oppose the consolidation of the complaints. He acknowledges responsibility and does not dispute that former clients are owed substantial sums of money and that he has been delinquent in responding not only to former clients but to the Grievance Committee as well.

The respondent has not disputed the obligations owed to former clients, has not contested many of the proceedings seeking refunds and only desires to fulfill his obligations and responsibilities "in returning money that is clearly owed.

The respondent admits that he foolishly stuck his "head in the ground" under pressure and failed to reply to the Grievance Committee's correspondence. He now asks forgiveness and understanding for his failures towards the Grievance Committee and seeks an opportunity to tender refunds to all former clients and to rebuild his practice and his life.

Despite his remorse and the fact that some of the underlying misconduct was remote in time, his strained economic circumstances and pervasive pattern of obstructing the Grievance Committee's investigation render him an immediate threat to the public. Accordingly, the Grievance Committee's motion is granted.

MASTRO, J.P., RIVERA, SPOLZINO, FISHER and ANGIOLILLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court