Appellate Division: Second Judicial Department

M103926

E/ct

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

STEVEN W. FISHER

JOSEPH COVELLO, JJ.

2010-01353 In the Matter of Stephen E. Atkins, admitted as Stephen Edward Atkins, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial Districts, petitioner; Stephen E. Atkins, respondent. (Attorney Registration No. 1888676)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District for an order: (1) suspending the respondent pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) upon a finding that he is guilty of misconduct immediately threatening the public interest based on his failure to comply with the lawful demands of the Grievance Committee in connection with its investigation and other uncontroverted evidence of professional misconduct; (2) authorizing the institution of a disciplinary proceeding against the respondent based on a petition dated January 8, 2010; (3) directing the respondent to answer the petition; and (4) referring the issues raised to a Special Referee. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on October 26, 1983, under the name Stephen Edward Atkins.

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, Stephen E. Atkins, admitted as Stephen Edward Atkins, 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, Stephen E. Atkins, admitted as Stephen Edward Atkins, 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, Stephen E. Atkins, admitted as Stephen Edward Atkins, 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 Stephen E. Atkins, admitted as Stephen Edward Atkins, based on the petition dated January 8, 2010; and it is further,

ORDERED that the Grievance Committee shall serve the petition upon the Special Referee and file the original petition in the office of the Clerk of this court within 20 days after receipt of a copy of this order; 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 him of a copy of this order, the respondent, Stephen E. Atkins, admitted as Stephen Edward Atkins, 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 Stewart A. Rosenwasser, a former Acting Supreme Court Justice, Orange County, 201 Ward Street - Suite 2B, Montgomery, N.Y. 12549, 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, Stephen E. Atkins, admitted as Stephen Edward Atkins, 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 with the Grievance Committee for the Ninth Judicial District and uncontroverted evidence of his failure to re-register.

The Grievance Committee initiated a sua sponte complaint against the respondent based on records of the Office of Court Administration (hereinafter OCA) indicating that he failed to re-register as an attorney for the previous and current registration periods. The respondent's biennial registration fee for the 2003-2004 registration period was due on or about July 1, 2003. OCA records reveal that he has failed to pay for that and subsequent registration periods.

By letter dated August 1, 2006, the Grievance Committee sent the sua sponte complaint to the respondent and requested his answer within 10 days. The Grievance Committee advised the respondent that an unexcused failure to reply constituted professional misconduct independent of the merits of the complaint. The respondent failed to reply. The letter was sent to the Pennsylvania address which the respondent had on file with OCA.

On June 22, 2007, Grievance Committee staff telephoned the respondent, confirmed his address, and reminded him of his obligation to answer. The telephone call was memorialized by letter dated June 22, 2007. The respondent failed to reply. By letter dated July 19, 2007, the Grievance Committee directed the respondent to answer by August 2, 2007, and reminded him that failure to cooperate constituted professional misconduct. The respondent failed to reply. On August 14, 2007, Grievance Committee staff again telephoned the respondent with respect to this matter. The respondent advised that he was experiencing financial and health difficulties. As an accommodation to the respondent, staff obtained a registration form from OCA and forwarded it to the respondent by letter dated September 4, 2007. In that letter, staff advised the respondent of the options available to him, including submission of a non-disciplinary resignation. The respondent still failed to reply.

Despite follow-up letters dated October 2, 2007, and December 6, 2007, and telephone messages left on February 28, 2008, and March 26, 2008, the respondent still failed to reply. By letter dated April 10, 2008, the Grievance Committee warned the respondent that it would proceed to move for his suspension from the practice of law. Notwithstanding a follow-up telephone message left on October 21, 2008, and a letter sent on April 21, 2009, the respondent remained uncooperative.

The respondent has failed to update his attorney registration as required, failed to submit an answer to the sua sponte complaint, and has flagrantly disregarded the lawful demands of the Grievance Committee. In the interest of protecting the public, the Grievance Committee seeks the respondent's interim suspension. Although personally served with an order to show cause on February 18, 2010 to suspend him, the respondent failed to submit any reply or to request an extension of time in which to do so. Accordingly, the Grievance Committee's motion is granted without opposition, the respondent is found to constitute an immediate threat to the public, he is suspended pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him.

PRUDENTI, P.J., RIVERA, SKELOS, FISHER and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court