Appellate Division: Second Judicial Department

M94833

E/cb

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2009-06907 In the Matter of Ira Samuel Schwartz, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Ira Samuel Schwartz, respondent. (Attorney Registration No. 1382829)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: (1) immediately suspending the respondent from the practice of law until further order of this court pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) based upon his professional misconduct immediately threatening the public interest; and (2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated July 15, 2009. 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 20, 1973.

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 pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent, Ira Samuel Schwartz, 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, Ira Samuel Schwartz, 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, Ira Samuel Schwartz, 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 Ira Samuel Schwartz, based on the petition dated July 15, 2009; and it is further,

ORDERED that Rita E. Adler, Chief Counsel to the Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Suite 102, 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 service upon him of a copy of this order, the respondent, Ira Samuel Schwartz, 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 John F. Mulholland, Esq., 3 Mayflower Drive, Hicksville, N.Y. 11801, 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, Ira Samuel Schwartz, 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 established pattern of failing to cooperate with the Grievance Committee for the Tenth Judicial District and uncontroverted evidence of his failure to re-register, as required by Judiciary Law § 468-a and 22 NYCRR 118.1.

The basis of the Grievance Committee's motion is the uncontrovertible evidence of the respondent's obstruction of its investigation into his failure to file a biennial registration statement with the Office of Court Administration (hereinafter OCA) as required by Judiciary Law §§ 468-a and part 118 of the Rules of the Chief Administrator (see 22 NYCRR 118) and his repeated failure to respond to repeated requests to submit a written answer.

The Grievance Committee opened a sua sponte complaint against the respondent for his failure to register for the 2002-2003, 2004-2005 and 2006-2007 registration periods. By letter dated August 3, 2006, sent to the address the respondent last listed with OCA, the Grievance Committee advised him to re-register, to submit proof of re-registration, and to submit an answer within 30 days. The respondent failed to comply.

By letter dated October 19, 2006, sent to the respondent's home address, the Grievance Committee requested the respondent's cooperation within 30 days and advised that an unexcused failure to reply constitutes professional misconduct independent of the merits of the complaint. Although that letter was not returned as undelivered, the respondent failed to respond or re-register.

By certified letter dated January 31, 2007, sent to the respondent's home address, the Grievance Committee directed him to reply within 10 days. Although postal records reflect delivery to the respondent, he failed to comply. By certified letter dated May 18, 2007, sent to the respondent's home address, the Grievance Committee directed the respondent to reply within five days. Postal records cannot confirm receipt of that letter. By certified letter dated August 17, 2007, sent to the respondent's home address, the Grievance Committee directed the respondent to answer within five days and confirm his registration status. Although postal records reflect receipt by the respondent of that letter on August 18, 2007, the respondent failed to comply.

By letter dated January 7, 2008, personally delivered to the respondent at his home, the Grievance Committee directed him to comply with its demands within 10 days and warned that should he fail to avail himself of this final opportunity to comply and respond, the Grievance Committee would pursue all available legal remedies, including suspension. The respondent still failed to comply.

In February 2008, the respondent was due to re-register for the 2008-2009 registration period. He failed to do so.

By certified letter dated March 3, 2008, sent to the respondent's home address, the Grievance Committee demanded his reply within seven days. The respondent still failed to comply. Pursuant to judicial subpoena dated March 5, 2008, which was personally served upon the respondent, the Grievance Committee directed him to appear and give testimony on April 17, 2008. The respondent testified under oath and acknowledged receipt of some of the Grievance Committee's letters, specifically the March 3, 2008, letter. The respondent testified that he practiced law sporadically and received compensation until 2006. He indicated that he needed time to accumulate funds to pay the registration fees owed and to find his CLE records.

By certified letter dated April 18, 2008, sent to the respondent's home address, the Grievance Committee confirmed that the respondent would provide proof of re-registration by June 20, 2008. Postal records indicate delivery to the respondent on April 19, 2008.

The Grievance Committee issued a Letter of Caution dated June 6, 2008, based on the respondent's failures to cooperate with the Grievance Committee and to re-register as required, which was conditioned upon proof of his re-registration for all past and current periods by June 20, 2008. The respondent failed to do so and was granted two extensions in which to comply.

By certified letter dated October 6, 2008, the Grievance Committee informed the respondent that this matter would be considered at its November 2008 meeting to determine if it should be reopened for a finding that his conduct constituted professional misconduct. The respondent thereafter telephoned the Grievance Committee and indicated that he intended to re-register by November 5, 2008. The respondent failed to do so.

By certified letter dated February 23, 2009, the Grievance Committee notified the respondent that it did not re-consider the matter at its November 2008 meeting in light of the respondent's representation that he would re-register by November 5. However, the Grievance Committee intended to consider the matter at its April 2009 meeting. The Grievance Committee warned the respondent that any action he planned to undertake should be completed expeditiously. Although postal records indicate receipt of that letter on February 24, 2009, the respondent failed to reply or re-register. OCA records reveal that the respondent has failed to re-register since the 2000-2001 period.

In summary, the respondent failed to re-register for three registration periods despite being provided with ample opportunities and extensions and despite his assurances that he would re-register by dates certain. During the pendency of the Grievance Committee's investigation, the respondent failed to re-register for an additional period even after receiving a Letter of Caution conditioned upon his registering with OCA. The respondent's failure to cooperate constitutes misconduct independent of his failure to re-register. He has effectively obstructed the Grievance Committee's investigation.

A petition dated July 15, 2009 and containing three charges based on the foregoing is annexed to the Grievance Committee's order to show cause. Although personally served with the order to show cause and petition on July 24, 2009, the respondent failed to assert any reply. By letter dated September 3, 2009, the respondent requested a one month adjournment of the order to show cause. He informed the court that he has "not practiced law for the past year or two" and sought to delay the proceeding in order to allow him the opportunity to properly retire. Although the return date of the order to show cause was adjourned to October 13, 2009, the respondent failed to take further action. OCA records continue to list his status as delinquent for the four registration periods since 2002.

In view of the respondent's persistent pattern of failing to re-register and not cooperating with the Grievance Committee, the Grievance Committee's motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(i) and(iii), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding based on the petition dated July 15, 2009, the respondent is directed to submit an answer within 20 days, and this matter is referred to a Special Referee to hear and report, with the report to be submitted within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

PRUDENTI, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court