Appellate Division: Second Judicial Department

M130564

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

RANDALL T. ENG, JJ.

2011-06482 In the Matter of John Anthony McHugh, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; John Anthony McHugh, respondent. (Attorney Registration No. 2968923)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District (1) to suspend the respondent from the practice of law pending the consideration of charges of professional misconduct against him 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 based upon his failure to cooperate with lawful demands of the Grievance Committee in connection with its investigation into his professional conduct and other uncontroverted evidence of professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon a verified petition dated July 7, 2011; and (3) to direct that a hearing be held before a Special Referee appointed to hear and report with respect to each of the issues raised by the charges set forth in the verified petition and any answer thereto. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on April 13, 1999.

Upon the papers filed in support of the motion and no papers having been filed 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, John Anthony McHugh, 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, John Anthony McHugh, 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, John Anthony McHugh, 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 John Anthony McHugh, based on the verified petition dated July 7, 2011; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, Crosswest Office Center, 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 decision and order on motion, the respondent, John Anthony McHugh, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to Nicholas Leo, Jr.,111 Lockwood Avenue, 1st Floor, Yonkers, N.Y. 10701, as Special Referee to hear and report, together with his 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, John Anthony McHugh, 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 submit an answer to a complaint filed with the Grievance Committee for the Ninth Judicial District; his failure to appear for an examination under oath in violation of a duly issued and personally served judicial subpoena compelling his attendance; and his failure to controvert allegations that he neglected and/or otherwise incompetently handled a civil appeal.

The instant motion emanates from the Grievance Committee's investigation of one complaint of professional misconduct filed against the respondent. The Grievance Committee commenced an investigation upon receipt of the complaint from Robert Clavin in or about December 2010. Clavin had retained the Greher law firm, where the respondent was employed, to prosecute a contract claim on his behalf. The Newburgh City Court rejected the claim, after trial, and Clavin retained the Greher firm to prosecute an appeal. Thereafter, a Notice of Appeal was filed with the Appellate Term for the Ninth and Tenth Judicial Districts and the respondent compiled a record and prepared a brief. However, the brief and record were rejected inasmuch as the respondent apparently failed to settle the minutes in the City Court, as required by § 1704(a) of the Uniform City Court Act. No further action was taken by the respondent and the appeal was never prosecuted.

On numerous occasions, Clavin asked the respondent about the status of the appeal. The respondent falsely assured Clavin that the appeal was pending and would be "decided in due course." Eventually, Clavin contacted the Appellate Term directly, and learned that the Court had no record of the appeal being filed.

On or about December 9, 2010, the Grievance Committee sent Clavin's complaint to the respondent at the Greher law firm. Upon information and belief, the respondent secreted the Grievance Committee's inquiry in his desk upon receipt. According to the respondent's employer, William Greher, the appeal was assigned to the respondent, with whom he spoke on many occasions, and was assured that the appeal was duly pending. In fact, Mr. Greher was provided with the brief and record on appeal, which he provided to the Grievance Committee. As far as Mr. Greher knew, the matter was being handled properly. When Mr. Greher learned that a grievance had been received by the respondent, he confronted him and gave him one week to discuss the matter. The respondent failed to do so and Mr. Greher terminated his employment with the law firm.

Thereafter, Mr. Greher provided the Grievance Committee with the respondent's home address and cell phone number. On or about December 30, 2010, the Grievance Committee forwarded a copy of Clavin's complaint to the respondent's home address via certified mail; the letter was returned. A computer search and personal visit were then conducted by the Grievance Committee's investigator, who verified that the address supplied by Mr. Greher was, in fact, the respondent's home address. Additional certified mailings were sent to that address, to no avail. In the interim, multiple calls were placed to the respondent's cell phone and numerous messages were left. However, the respondent invariably failed to return the Grievance Committee's calls.

On or about March 14, 2011, the Grievance Committee obtained a Judicial Subpoena, compelling the respondent's attendance at the Committee's offices on April 13, 2011, for an examination under oath (hereinafter EUO). The respondent was personally served with the subpoena at his home address on March 30, 2011, as well as with copies of Clavin's complaint and the Grievance Committee's ensuing correspondence. No answer to the complaint was received. The respondent was subsequently notified, by telephone, and in person, that the EUO was adjourned to May 24, 2011. However, despite actual knowledge of the adjourned date, the respondent failed to appear and failed to respond to a follow-up telephone call.

On or about June 27, 2011, the Grievance Committee discovered an e-mail address for the respondent, by which they made further attempts to elicit his cooperation, to no avail.

To date, the respondent has failed to cooperate with all requests by the Grievance Committee for a written answer and/or an EUO in connection with Clavin's complaint.

The respondent has neither opposed the motion nor submitted any response relative thereto.

Based upon the foregoing, the Grievance Committee's 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.

MASTRO, A.P.J., RIVERA, SKELOS, DILLON and ENG, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court