Appellate Division: Second Judicial Department

M229665

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

JEFFREY A. COHEN, JJ.

2016-06824 In the Matter of Farrel R. Donald, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Farrel R. Donald, respondent. (Attorney Registration No. 4671574)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, inter alia, (1) to suspend the respondent from the practice of law pending the consideration of charges of professional misconduct against him pursuant to former 22 NYCRR 691.4(l)(1)(i), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based on his failure to comply with the lawful demands of the Grievance Committee, (2) to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based upon the allegations of professional misconduct set forth in a verified petition dated June 30, 2016, 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 First Judicial Department on January 12, 2009.

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

ORDERED that pursuant to 22 NYCRR 1240.9(a), as now in effect, the branch of the motion which is to suspend the respondent, Farrel R. Donald, is granted, and Farrell R. Donald, 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, Farrel R. Donald, shall promptly comply with this Court's rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); 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, Farrel R. Donald, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee or 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 if the respondent, Farrel R. Donald, 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 1240.15(f); and it is further,

ORDERED that the branch of the motion which is for leave to institute and prosecute a disciplinary proceeding is granted, and 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 Farrel R. Donald, based on the verified petition dated June 30, 2016; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street - Suite 2400, Brooklyn, NY 11201-3745, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that the Grievance Committee shall serve Farrel R. Donald, with a copy of this decision and order on motion together with a notice of petition and the verified petition dated June 30, 2016, pursuant to 22 NYCRR 1240.8(a)(1), and file the notice of petition and the verified petition dated June 30, 2016, as well as proof of service, with this Court, within 20 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that the branch of the motion which is to refer the issues raised to a Special Referee, to hear and report, is granted, and the issues raised by the verified petition and any answer thereto are referred to David I. Ferber, Esq., c/o Ferber, Chan Essner & Coller, LLP, 60 East 42nd Street, Suite 2050, New York, NY 10165, as Special Referee, to hear and report, with the hearing to be completed within 60 days of this decision and order on motion, or as soon as practicable, 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 the motion is otherwise denied as unnecessary.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based on his failure to cooperate with the investigation of the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts in its investigation of multiple complaints of professional misconduct filed against him.

As set forth below, in 2015 and 2016, 14 complaints of professional misconduct were filed against the respondent. A copy of each complaint was forwarded to the respondent with directions to submit a written answer within a specified period, followed by additional letters when an answer was not forthcoming. Before this motion was made, the respondent failed to provide requested information for 2 complaints and failed to answer 12 complaints, despite additional attempts to secure his compliance. The respondent also failed to appear for a scheduled examination under oath on June 3, 2016.

During the course of the Grievance Committee's investigation of complaints filed by Tony Brown-Arkah and Gloria Vialva, by separate letters dated December 3, 2015, and December 4, 2015, sent via regular and certified mail, return receipt requested, the respondent was directed to provide additional information. The respondent failed to provide the additional information, as requested, and did not otherwise contact the Grievance Committee.

On July 20, 2015, the Grievance Committee received complaints from Beverly Edwards, Lotthy Watt, Hyacinth McCulloch, Yvonne Meyers-Harris, Kurt Baxter, and Jean Weisbrod. By separate letters, one for each complaint, all dated July 31, 2015, the respondent was directed to submit a written answer to the complaints, but the respondent failed to answer. By separate letters, one for each complaint, dated either September 14, 2015, or September 15, 2015, sent via regular and certified mail, return receipt requested, the respondent again was directed to provide a written answer to the complaints. The United States Postal Service website indicated that all of the letters sent by certified mail were delivered. A third letter dated February 29, 2016, sent via regular and certified mail, return receipt requested, demanded that the respondent provide answers to these complaints. The respondent failed to provide the requested answers in the time frame demanded or otherwise contact the Grievance Committee.

The Grievance Committee received complaints from George M. Smart, Gladston Beecher, and Lennox A. Daniel on September 8, 2015, October 30, 2015, and November 20, 2015, respectively. The Grievance Committee requested answers to the Smart and Beecher complaints by letters dated September 14, 2015, and November 6, 2015, respectively. No answers were received. Additionally, the Grievance Committee demanded that the respondent provide written answers to the three complaints by letters dated December 3, 2015 (Smart and Beecher), and December 9, 2015 (Daniel), sent via regular and certified mail, return receipt requested. When answers were not received, the letter dated February 29, 2016, referenced above, was sent via regular and certified mail, return receipt requested, to the respondent demanding that he provide answers to these complaints. The respondent failed to answer these complaints, as requested.

On March 3, 2016, counsel for the Grievance Committee left the respondent a voicemail message advising him to provide either the additional information requested, or the requested answers, relative to the 11 complaints received up to that date. He was also asked to contact the Grievance Committee.

The Grievance Committee received a complaint from Mackisack Logie on March 30, 2016, and sent a letter dated April 1, 2016, via regular and certified mail, return receipt requested, requesting a written answer to the Logie complaint, which was unanswered in the time frame demanded.

The Grievance Committee also received complaints from Christian Zaldivar, and Peterann M. Blackstock, on April 25, 2016, and May 11, 2016, respectively.

By letters dated May 17, 2016, sent via regular and certified mail, return receipt requested, to the respondent's registered office address and to an office address provided by the two most recent complainants, the respondent was directed to provide either the additional information requested, or the requested answers, relative to all 14 complaints. The letters further directed the respondent to appear at the Grievance Committee's office for an examination under oath on June 3, 2016, and requested that the respondent contact the Grievance Committee. Although the certified letter sent to the registered office address was unclaimed, the certified letter sent to the alternative office address was delivered and on May 20, 2016, a return receipt card, signed by "Farrel," was received by the Grievance Committee. The respondent failed to submit the additional information requested and failed to submit any of the requested answers by the date requested, failed to contact the Grievance Committee, and failed to appear on June 3, 2016.

The letters mailed to the respondent advised him that the Grievance Committee was authorized to seek his immediate suspension should he fail to comply.

On August 5, 2016, the Grievance Committee served the respondent with this motion, which included an order to show cause, an affirmation of Grievance Counsel, the verified petition dated June 30, 2016, and accompanying exhibits. The respondent did not respond to the motion or request additional time in which to do so before the return date. After the return date, the respondent was granted two extensions to submit opposition papers and he ultimately filed opposition on November 7, 2016.

In an affirmation filed in opposition to this motion, the respondent acknowledged that his conduct fell short of that required of him and that he failed to timely respond to the Grievance Committee's inquiries. However, he claimed that he was now prepared to cooperate fully with the investigation. The respondent provided copies of the answers to the previously unanswered complaints, which he had recently submitted to the Grievance Committee, and indicated that he had reached out to the Grievance Committee to re-schedule his examination under oath. The respondent attributed his failures to having taken on too many cases and being stretched too thin, in addition to other personal stresses. Nevertheless, the respondent's cooperation after that point was unsatisfactory and he continued to miss deadlines.

In view of the respondent's protracted history of noncooperation with regard to multiple complaints, and the respondent's continued lack of full cooperation with the Grievance Committee's investigation, we conclude that the respondent poses an immediate threat to the public interest for which his immediate suspension is warranted.

Based on the foregoing, the branches of the motion which are to suspend the respondent, to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against him based upon the verified petition dated June 30, 2016, and to refer the matter to a Special Referee, to hear and report, are granted, the respondent is immediately suspended from the practice of law, pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the verified petition dated June 30, 2016, and the matter is referred to a Special Referee, to hear and report.

ENG, P.J., MASTRO, RIVERA, DILLON and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court