Appellate Division: Second Judicial Department

M140972

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

LEONARD B. AUSTIN, JJ.

2012-06790 In the Matter of Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Benjamin E. Thwaites, respondent. (Attorney Registration No. 4505772)

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/or (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 and/or other uncontroverted evidence of professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent; 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 a verified petition dated February 2, 2012, 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 November 14, 2007, under the name Benjamin Emmanuel Thwaites.

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, Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, 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, Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, 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, Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, 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 Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, based on the verified petition dated February 2, 2012; 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, Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, 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, Benjamin E. Thwaites, admitted as Benjamin Emmanuel Thwaites, 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 lawful demands of the Grievance Committee for the Ninth Judicial District and other uncontroverted evidence of professional misconduct

The instant motion emanates from a complaint filed on behalf of Paul Eccleston by Kisshia Simmons-Grant, his attorney, which was received by the Grievance Committee on September 15, 2011. In an affidavit annexed thereto, Eccleston stated that he met with the respondent to discuss Eccleston's then-pending immigration matter. At that time, the respondent advised that he would have to file an appeal from the most recent determination made in Eccleston's immigration case if they were to secure the relief Eccleston ultimately desired. Although Eccleston paid the respondent a fee at or about that time, he did not sign a retainer agreement and did not receive a receipt for the payment he made. Eccleston further advised that, inasmuch as the respondent did not have an office, meetings were thereafter arranged by telephone and conducted in random public places including restaurants and bars.

In or about June 2009, Eccleston met with the respondent in the back of a bar located at 240 White Plains Road at which time Eccleston gave the respondent a copy of a hearing notice for an upcoming court date in his immigration matter. Although the respondent promised to meet Eccleston in court at 9:00 A.M. on the scheduled date, the respondent failed to appear or advise him that he would not be appearing, and failed to send another attorney in his place. Moreover, Eccleston learned in court that the respondent had failed to provide any notice of his appearance in the matter. Later that same day, when Eccleston was finally able to contact the respondent, he was advised that the respondent had failed to appear "because his license had expired." Eccleston informed the respondent of the adjourned date. Eccleston also "went to [the respondent's] office at the back of the bar" and gave the respondent a written notice for the next court date.

Two days prior to the adjourned date, Eccleston was unable to reach the respondent by telephone. He went to the bar again, but was advised that the respondent no longer patronized the establishment because he owed other clients' [sic] money." On the adjourned date, Eccleston was present but the respondent once again failed to appear. The immigration judge asked Eccleston about the respondent and advised him that he did not believe the respondent was an attorney. Thereafter, Eccleston kept trying to call the respondent, finally reaching him almost one month later, at which time the respondent advised him that he had been in Jamaica because someone had died and had been out of the country on the adjourned date. At that point, Eccleston asked for his money back because the respondent had not done what he had promised to do. However, the respondent refused to reimburse Eccleston. Upon further inquiry in the community, Eccleston was informed that the respondent was frequenting another bar located in the vicinity of Boston and Baychester Roads in the Bronx. Eccleston eventually located the respondent at the bar and the two discussed Eccleston 's situation at length, whereupon the respondent agreed to refund money to Eccleston, inasmuch as he had not previously appeared. The respondent took Eccleston's hearing notice and promised to meet him in court on March 4, 2011. However, when Eccleston appeared in court on March 4, 2011, he learned that the respondent had told him the wrong date, that he had missed his hearing, and that he had been ordered removed in absentia by the immigration judge.

Since that time, Eccleston has been unable to locate or contact the respondent, no money has been returned to him, and he has retained Ms. Simmons-Grant.

On September 19, 2011, the Grievance Committee sent a copy of the complaint to the respondent at his registered address in Mount Vernon. When no response was received, a second letter was sent to the respondent via certified mail, return receipt requested, on or about October 19, 2011. While the certified mailing has not been returned, on-line records maintained by the United States Postal Service are "unclear" about its status.

On November 30, 2011, a judicial subpoena and subpoena duces tecum were forwarded to the Appellate Division, Second Department, to be so ordered prior to service upon the respondent. These subpoenas were made returnable on Tuesday, December 20, 2011, at 10:30 a.m. Same were served upon the respondent pursuant to CPLR *308 by affixing a copy of the subpoenaes to the door of the respondent's residence and mailing a copy to the respondent, prior to the scheduled return date.

The Grievance Committee submits that the respondent constitutes an "immediate threat to the public interest" pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) based upon his failure to cooperate and other uncontroverted evidence of his professional misconduct.

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) 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 AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court