Appellate Division: Second Judicial Department

M111531

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

STEVEN W. FISHER, JJ.

2010-04598 In the Matter of Edmund T. McDowell, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Edmund T. McDowell, respondent. (Attorney Registration No. 1493733)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: (1) suspending the respondent, pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), based upon professional misconduct immediately threatening the public interest; (2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent based on the allegations of professional misconduct set forth in a verified petition dated January 21, 2010; and (3) referring the issues raised to a Special Referee to hear and report. By order to show cause dated July 27, 2010, this Court directed that service upon the respondent be effected by mailing the order to show cause and supporting papers to the respondent, via regular and certified mail, to his personal residence at 2550 Oak Street, Kissimmee, Florida, and by affixing a copy of those documents to the door of that residence. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 5, 1978.

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, Edmund T. McDowell, 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, Edmund T. McDowell, 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, Edmund T. McDowell, 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 Edmund T. McDowell, based on the petition dated January 21, 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 Robert A. Green, Chief Counsel, 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, Edmund T. McDowell, 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 James Starkey, a former Judge of the Supreme Court, Kings County, 215 Adams Street, Suite 15B, Brooklyn, N.Y. 11201, 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, Edmund T. McDowell, 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 service upon the respondent, Edmund T. McDowell, of this order and all future matters in this proceeding, shall be effected by mailing the document to the respondent at 2550 Oak Street, Kissimmee, Florida 34744, by both regular mail and certified mail, return receipt requested, and by affixing the document to the front door of the residence located at that address.

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 by the Grievance Committee for the Tenth Judicial District and uncontroverted evidence of professional misconduct.

The Grievance Committee's motion is predicated upon: (1) the respondent's obstruction of its legitimate function of investigating allegations that the respondent misappropriated funds with which he was entrusted, engaged in a conflict of interest, and failed to file a biennial registration statement with the Office of Court Administration (hereinafter OCA); and (2) upon uncontroverted evidence of the respondent's failure to re-register with OCA as directed.

On or about June 4, 2004, the Grievance Committee received a complaint from Steven G. Leventhal, Esq. on behalf of Sharon Reardon alleging that the respondent misappropriated at least $42,679.49 in funds with which he was entrusted and engaged in a conflict of interest by lending money to his client, Ms. Reardon, in return for a promissory note to pay the respondent's wife $8,000 at an interest rate of 10% per annum. The Grievance Committee sent the respondent two identical letters, dated July 1, 2004, to the last New York address at which he had registered with OCA and to his Florida address, directing him to submit an answer within 15 days. Both letters were returned undelivered.

By letter dated July 23, 2004, sent to the respondent's New York address, the Grievance Committee requested an answer within 10 days and reminded the respondent that his failure to reply constituted professional misconduct independent of the merits of the complaint. That letter was returned undelivered. By letter dated August 12, 2004, sent to the respondent at an address in Summerfield, Florida, the respondent was directed to submit an answer within 10 days. That letter was also returned undelivered. The Grievance Committee then sent two letters, via first class and certified mail, to the respondent's Kissimmee, Florida, address, directing him to respond within 10 days. The respondent did not claim the certified letter and the letter sent via first class mail was returned as undelivered.

On April 1, 2005, the respondent was personally served at his Kissimmee, Florida, address with a letter, dated February 15, 2005, directing him to submit an answer within 10 days. The respondent failed to comply.

The Grievance Committee sent two letters to the respondent, via first class and certified mail, to his Kissimmee, Florida, address directing him to submit an answer within 5 days together with an explanation for his failure to cooperate. The Grievance Committee advised the respondent that it is authorized to move to suspend any attorney who fails to cooperate with a disciplinary investigation. Although the respondent failed to claim the certified letter, the first class letter was not returned as undelivered. The respondent still failed to comply.

On May 4, 2009, a letter dated March 9, 2009, was personally served on an individual claiming to be the respondent's roommate and was also sent to the respondent via first class mail. The letter demanded an answer and an explanation for the respondent's failure to cooperate within 5 days and again warned of a motion to suspend. The respondent still failed to comply.

The Grievance Committee sent two letters dated June 19, 2009, via first class and certified mail, to the respondent at the Kissimmee, Florida, address which demanded his answer and an explanation for his failure to cooperate within 10 days and again warned of a motion to suspend. Although the respondent failed to claim the certified letter, the first class letter was not returned undelivered. The respondent still failed to comply.

The Grievance Committee sent two letters dated July 7, 2009, via first class and certified mail, to the respondent at the Kissimmee, Florida, address which demanded his answer and an explanation for his failure to cooperate within 10 days and again warned of a motion to suspend. The respondent failed to claim the certified letter and the first class letter was returned with a handwritten note: "Moved some time in mid 08."

OCA records reflect that the respondent last registered his address as 200 Fisk Place, Massapequa, on or about June 19, 2001, and has not filed a change of address since then. By letter mailed on or about July 1, 2004, the Grievance Committee informed the respondent that he was the subject of a sua sponte complaint due to his failure to re-register, directed him to immediately re-register and to submit proof of compliance, as well as a written answer explaining his failure to re-register within 30 days. The respondent was reminded that an unexcused failure to reply constituted professional misconduct independent of the merits of the complaint. The letter was returned as undelivered. A letter of like effect, dated October 14, 2004, was mailed to the respondent's Kissimmee, Florida, address. That letter was also returned as undelivered.

OCA records reveal that the respondent also failed to re-register for the biennial period 2004-2005. By certified letter dated December 29, 2004, sent to the respondent's Kissimmee, Florida address, the Grievance Committee requested the respondent's answer within 10 days with confirmation of his registration status. The Grievance Committee again reminded the respondent that failure to cooperate constitutes professional misconduct independent of the merits of the complaint. That letter was also returned unclaimed.

Similar demand letters, dated April 18, 2005, and October 6, 2008, were sent to the respondent's Kissimmee, Florida, address, via first class or certified mail. Although at least one of those letters was not returned as undelivered, the respondent failed to reply and failed to re-register.

OCA records reveal that the respondent also failed to re-register for two additional biennial periods, 2006-2007 and 2008-2009 and also failed to file a change of address with OCA.

As noted above, on May 4, 2009, a letter dated March 9, 2009, was personally served on an individual claiming to be the respondent's roommate and was also sent via first class mail. The letter demanded an answer and an explanation for the respondent's failures to re-register and to cooperate within 5 days. Although the first class letter was not returned as undelivered, the respondent failed to comply.

Similar demand letters, dated June 19, 2009, and July 7, 2009, were sent to the respondent's Kissimmee, Florida address, via first class and certified mail. The certified letters were not claimed and one of the first class letters was returned with a handwritten note: "Moved some time in mid 08." Although the other letter was not returned, the respondent failed to comply.

OCA records reflect that as of January 4, 2010, the respondent was delinquent for four biennial registration periods since 2002. As of September 15, 2010, OCA records reflect that the respondent's delinquent status remains unchanged.

In sum, the evidence reveals that the respondent has effectively obstructed the Grievance Committee's investigations by failing to respond to repeated demands and remaining delinquent with his attorney registration. Although served with the Grievance Committee's order to show cause and petition by regular and certified mail on July 30, 2010, and by affixing same to the front door of the premises at 2550 Oak Street, Kissimmee, Florida, as authorized by the order to show cause, the respondent has failed to assert any reply. Accordingly, the motion is granted, without opposition, the respondent is suspended pursuant to 22 NYCRR691.4(l)(1)(i) & (iii), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based on the verified petition dated January 21, 2010, the respondent is directed to submit an answer within 20 days after service upon him of this order, and this matter is referred to a Special Referee to hear and report.

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

ENTER:

Matthew G. Kiernan

Clerk of the Court