Appellate Division: Second Judicial Department

M190957

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

SANDRA L. SGROI, JJ.

2015-00026 In the Matter of Fred Douglas Way III, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Fred Douglas Way III respondent. (Attorney Registration No. 1988203)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (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) 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; (2) to authorize the institution and prosecution of a disciplinary proceeding based upon the allegations set forth in a verified petition dated December 24, 2014; and (3) to refer the issues raised to a Special Referee, to hear and report. 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 10, 1985.

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), the respondent, Fred Douglas Way III, 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, Fred Douglas Way III, 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, Fred Douglas Way III, 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 Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Fred Douglas Way III, based on the allegations contained in the petition verified on December 24, 2014; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street - Suite 2400, Brooklyn, N.Y. 11201-3745, 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, Fred Douglas Way III, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, appointed herein, 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 the Honorable Abraham Gerges, 303 East 57th Street, New York, N.Y. 10022, as Special Referee, to hear and report, and to submit a report, which contains his findings on the issues, 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, Fred Douglas Way III, 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 Second, Eleventh, and Thirteenth Judicial Districts.

Complaint from Jason Silverstein and David Shorenskin

On or about October 10, 2014, the Grievance Committee received a complaint from Jason Silverstein and David Shorenskin, alleging that the respondent failed to respond to their inquiries about a down payment, in the amount of $200,000, that had been entrusted to the respondent in connection with a real estate transaction. A copy of the negotiated down payment check, made payable to the respondent, accompanied the complaint. By letter dated October 20, 2014, sent via regular mail to the respondent's law office, the Grievance Committee informed the respondent of the initiation of an investigation based upon this complaint, and requested that he provide a written answer within 10 days of his receipt of the letter. The letter was not returned to the Grievance Committee, and no response was received from the respondent.

A second request was made by letter dated November 14, 2014, sent via regular and certified mail, return receipt requested, to the respondent's law office. Therein, the respondent was directed to submit his written answer on or before November 25, 2014, and was reminded that his failure to cooperate with the Grievance Committee constituted professional misconduct independent of the merits of the underlying complaint. The letter sent via certified mail was returned to the Grievance Committee, and received on November 26, 2014, with a notation on the envelope stating "refused 11/18/14." The letter sent by regular mail was not returned to the Grievance Committee, and no response was received from the respondent.

Complaint from Edgar A. Fletcher

On or about October 16, 2014, the Grievance Committee received a complaint from Edgar A. Fletcher, alleging that the respondent failed to communicate with him after he retained the respondent to represent him in connection with the sale of his real estate, and failed to communicate with his new attorney whom he retained to complete the transaction. By letter dated October 28, 2014, sent via regular mail to the respondent's law office, the Grievance Committee informed the respondent of the initiation of an investigation based upon the complaint, and requested that he provide a written answer within 10 days of his receipt of the letter. The letter was not returned to the Grievance Committee, and no response was received from the respondent.

A second request was made by letter dated November 14, 2014, sent via regular and certified mail, return receipt requested, to the respondent's law office. Therein, the respondent was directed to submit his written answer on or before November 25, 2014, and reminded that his failure to cooperate with the Grievance Committee constituted professional misconduct independent of the merits of the underlying complaint. The letter sent by certified mail was returned to the Grievance Committee, and received on December 3, 2014, with a notation on the envelope stating "refused 11/18/14." The letter sent by regular mail was not returned to the Grievance Committee, and no response was received from the respondent.

Complaint from Kim N. Chatterton

On or about October 17, 2014, the Grievance Committee received a complaint from Kim N. Chatterton, alleging that the respondent neglected her legal matter. By letter dated October 30, 2014, sent via regular mail to the respondent's law office, the Grievance Committee informed him of the initiation of an investigation based upon the complaint, and requested that he provide a written answer within 10 days of his receipt of the letter. The letter was not returned to the Grievance Committee, and no response was received from the respondent.

A second request was made by letter dated November 14, 2014, sent via regular and certified mail, return receipt requested, to the respondent's law office address. Therein, the respondent was directed to submit his written answer on or before November 25, 2014, and reminded that his failure to cooperate with the Grievance Committee constituted professional misconduct independent of the merits of the underlying complaint. The letter sent by certified mail was returned to the Grievance Committee, and received on December 5, 2014, with a notation on the envelope stating "refused 11/18/14." The letter sent by regular mail was not returned to the Grievance Committee, and no response was received from the respondent.

With respect to the three foregoing complaints, the Grievance Committee made additional efforts to obtain the respondent's cooperation.

On November 26, 2014, and December 2, 2014, Deputy Counsel to the Grievance Committee telephoned the respondent's law office. On both dates, a message was left on the respondent's answering machine directing him to call back immediately. The Grievance Committee did not receive a response from the respondent.

By letter dated December 2, 2014, sent via regular and certified mail, return receipt requested, to the respondent's law office, the Grievance Committee directed the respondent to submit his answers to the three pending complaints. Further, the respondent was informed that his continued failure to cooperate could form the basis for his immediate suspension pursuant to § 691.4(1) of the Rules Governing the Conduct of Attorneys of this Court. Neither letter was returned to the Grievance Committee, nor was a response received from the respondent.

On December 5, 2014, an investigator for the Grievance Committee hand-delivered a letter to the respondent's law office, which directed the respondent to contact the Grievance Committee to schedule an examination under oath. The Grievance Committee did not receive any communication from the respondent.

Another attempt was made on December 12, 2014, when an investigator for the Grievance Committee hand-delivered a letter, of the same date, to the respondent's law office. As before, the letter directed the respondent to submit an answer for each complaint, and to contact the Grievance Committee to schedule an examination under oath. A copy of the December 12, 2014, letter also was sent via regular mail to the respondent's home address. The Grievance Committee did not receive any communication from the respondent.

A final attempt was made by letter dated December 16, 2014, which was delivered by an investigator for the Grievance Committee to the respondent's law office. A copy also was sent via regular mail to the respondent's home address. To date, the respondent has failed to submit an answer to each of the three foregoing complaints, or to contact the Grievance Committee in any manner.

Although personally served with a copy of the Grievance Committee's motion, the respondent has neither opposed the motion nor submitted a response relative thereto.

Based upon the foregoing, the motion is granted, and the respondent is immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i) for his failure to cooperate with the lawful demands of the Grievance Committee, pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent, and the matter is referred to a Special Referee, to hear and report.

ENG, P.J., MASTRO, RIVERA, SKELOS, and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court