Appellate Division: Second Judicial Department

M133996

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

DANIEL D. ANGIOLILLO, JJ.

2011-09529 In the Matter of David Allen Linn, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; David Allen Linn, respondent. (Attorney Registration No. 2734739)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth 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), (ii) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the lawful demands of the Grievance Committee in connection with its investigation into his professional conduct; substantial admissions of professional misconduct made under oath; 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 September 28, 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 Second Judicial Department on April 17, 1996.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), the respondent, David Allen Linn, 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, David Allen Linn, 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, David Allen Linn, 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 David Allen Linn, based on the verified petition dated September 28, 2011; 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 decision and order on motion, the respondent, David Allen Linn, shall serve an answer to the verified petition dated September 28, 2011, on the petitioner and the Special Referee and file the original answer with this Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to the Honorable Kenneth A. Davis, a retired Justice of the Supreme Court, Nassau County,19 Harriet Drive, Syosset, N.Y. 11791, 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, David Allen Linn, 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 an investigation by the Grievance Committee for the Tenth Judicial District (hereinafter Grievance Committee), his substantial admissions under oath, and other uncontroverted evidence, of professional misconduct.

The instant motion emanates from the Grievance Committee's investigation of three complaints of professional misconduct filed against the respondent.

Complaint of Ching Loong Lam

The Grievance Committee received a complaint from Ching Loong Lam (hereinafter Mr. Lam) on or about January 11, 2011, alleging that the respondent had been retained in or about April 2008 to recover funds from Thomas Chang and/or Top Eight Construction Inc. (hereinafter Mr. Chang and/or Top Eight). Said funds had been given to Top Eight in connection with a failed business venture. By letter dated April 8, 2008, addressed to Mr. Chang, the respondent confirmed that he had been retained in this matter.

In or about October 2008, an offer in the amount of $16,005.00 was made by Top Eight to Mr. Lam, to settle the matter and Mr. Lam accepted the offer. By electronic mail dated December 29, 2008, the respondent advised Mr. Lam that he had received the settlement funds and deposited same into his escrow account. The respondent indicated that, when the settlement funds cleared, a check would be sent to Mr. Lam's father. By electronic mail dated February 13, 2009, the respondent advised Mr. Lam that there was an unrelated discrepancy in his (the respondent's) escrow account that needed to be reconciled before the respondent could remit the settlement funds. By electronic mail dated April 22, 2010, Mr. Lam inquired about the issues regarding the respondent's escrow account. In response, the respondent advised, by electronic mail dated April 26, 2010, that he hoped to have the matter resolved in a week. By further electronic mail dated December 21, 2010, Mr. Lam expressed frustration at not being able to reach the respondent in connection with another matter and requested the settlement funds ostensibly held in the respondent 's escrow account in connection with Top Eight, to no avail.

By letters dated February 8, 2011, February 18, 2011, March 14, 2011, and April 1, 2011, the Grievance Committee instructed the respondent to submit a written answer to the Lam complaint within 10 days. No response was received and/or the Grievance Committee's letters were returned "unclaimed."

On April 18, 2011, a judicial subpoena and subpoena duces tecum were personally served upon the respondent, directing him to appear at the Grievance Committee's offices on April 28, 2011, for an examination under oath (hereinafter EUO) and to furnish his legal file, as well as his escrow records, in connection with the Lam matter.

By letter dated April 21, 2011, the respondent requested an extension of time to appear for his EUO, until the week of May 16, 2011. The respondent's request was granted and he was advised, by letter dated April 22, 2011, that the subpoenas served upon him would be returnable May 18, 2011. However, the respondent failed, without explanation, to produce his complete escrow records and/or his legal file in connection with the Lam matter.

At his EUO on May 18, 2011, the respondent produced one monthly statement, dated December 2008, from his TD Bank IOLA account. He testified that this was his only IOLA account and identified a December 29, 2008, deposit of $16,005 as the funds he received on behalf of Mr. Lam. The respondent could not explain why the funds had not been disbursed to his client. He testified that, from the date he deposited the funds into his IOLA account through the date of the EUO, the funds remained in the account. At the conclusion of the EUO, the respondent agreed to provide the Grievance Committee with his complete escrow records in connection with the Lam matter; a written response to the Lam complaint; and proof that the settlement funds had been remitted to the client. This agreement was confirmed by letter dated May 19, 2011, from the Grievance Committee to the respondent. By letter dated May 26, 2011, the respondent advised the Grievance Committee that he wished to obtain counsel.

On May 27, 2011, the Grievance Committee served a subpoena duces tecum on TD Bank to obtain the bank records for the respondent's IOLA account. Those records revealed that, on January 31, 2009, the balance in the account fell to $6,687.37, well below the amount the respondent was required to preserve on behalf of Mr. Lam. By February 28, 2009, the account balance fell to $4,879.00 and, by March 31, 2009, the account balance was $874.86.

By letter dated June 17, 2011, the Grievance Committee advised the respondent that no counsel had contacted them on his behalf and that his EUO was scheduled to continue on July 12, 2011. However, the respondent failed to appear at the Grievance Committee's offices on July 12, 2011, for his continued EUO.

Complaint of Mary Pirraglia

Mary Pirraglia (hereinafter Ms. Pirraglia) retained the respondent in or about July 2009 to represent her interests in connection with an appeal from the dismissal of her infant son's personal injury action. Ms. Pirraglia paid the respondent $2,600. On or about November 10, 2009, the respondent sent Ms. Pirraglia an e-mail wherein he advised that there was no decision from the court regarding his motion to extend the time to file an appeal. The respondent sent a further e-mail to Ms. Pirraglia on or about November 30, 2009, wherein he advised that the appeal was not lost and that they were awaiting an answer regarding the extension. In another e-mail to Ms. Pirraglia dated January 8, 2010, the respondent advised that he was going to contact the Appellate Division regarding the motion. The respondent sent a further electronic mail to Ms. Pirraglia dated April 26, 2010, wherein he advised that the decision on the motion was still outstanding.

At his EUO on May 18, 2011, the respondent testified that, although he had contacted the Court, he had never made a motion and/or filed any papers on Ms. Pirraglia's behalf. He admitted that, in his email correspondence, he lied to his client concerning the status of her matter, and that he had never advised her that an appeal had not been filed.

Complaint of Uri Somech

The Grievance Committee received a complaint from Uri Somech (hereinafter Mr. Somech) on or about April 15, 2011. Mr. Somech alleged therein that he had paid the respondent $1,500 in January 2011 for a loan modification and that there had been no further communication from him.

By letter dated May 17, 2011, the respondent was notified of the complaint and was requested to submit a written answer within 10 days. At his EUO on May 18, 2011, the respondent was apprised, at the conclusion of his testimony, that the Grievance Committee had received a complaint from Mr. Somech, to which the respondent was required to respond, in writing. The Grievance Committee confirmed this information by letter dated May 19, 2011. However, no written response was received. By letter dated June 17, 2011, the Grievance Committee advised the respondent that his EUO was scheduled to continue on July 12, 2011. The letter referenced, inter alia, the Somech matter. However, the respondent failed to appear on July 12, 2011, for his continued EUO.

In opposition to the Grievance Committee's motion, the respondent's counsel contends that the respondent's suspension is not required. At counsel's request, the respondent was examined by a forensic psychologist who diagnosed him as having Major Depression Disorder. Counsel asserts that the conduct at issue is consistent with this diagnosis; that the respondent has expressed a willingness to continue treatment; and that the respondent has been referred to a psychiatrist to see if his depression can be helped with medication. He adds that the respondent's diagnosis and commitment to treatment render his immediate suspension unnecessary.

The respondent's counsel offers neither evidence of treatment nor indicates that the respondent is incapacitated from continuing to practice law.

Based upon the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), 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 ANGIOLILLO, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court