Appellate Division: Second Judicial Department

M270769

E/sl

ALAN D. SCHEINKMAN, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

CHERYL E. CHAMBERS, JJ.

2020-01840 In the Matter of Peter L. Rand, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Peter L. Rand, respondent. (Attorney Registration No. 2449569)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District to suspend the respondent from the practice of law, pursuant to 22 NYCRR 1240.9(a)(3) and (5), upon a finding that he is guilty of professional misconduct immediately threatening the public interest, and 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 February 19, 1992.

Upon the papers filed in support of the motion and no papers having been filed in response thereto, it is

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

ORDERED that pursuant to 22 NYCRR 1240.9(a)(3) and (5), the respondent, Peter L. Rand, 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, Peter L. Rand, shall promptly comply with this Court's rules governing the conduct of disbarred, suspended, or resigned 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, Peter L. Rand, 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 if the respondent, Peter L. Rand, 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 issues raised are referred to the Honorable Lance D. Clarke, c/o Cooke & Clarke, 250 Nassau Blvd., 2nd Floor, Garden City, NY 11530, to hear and report, with the hearing to be completed within 60 days of the date of this decision and order, or as soon thereafter as practicable, and the report, which contains his findings on the issues and charges, to be submitted within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that pursuant to 22 NYCRR 1240.9(b), in the event the respondent, Peter L. Rand, fails to respond to or appear for further investigatory or disciplinary proceedings within six months of the date of this decision and order on motion, he may be disbarred by the Court without further notice.

We find, prima facie, that the respondent, Peter L. Rand, is guilty of professional misconduct immediately threatening the public interest based on uncontroverted evidence that he misappropriated client funds entrusted to him and failed to cooperate with an investigation by the Grievance Committee for the Tenth Judicial District of multiple complaints of professional misconduct filed against him.

Misappropriation

On or about June 30, 2017, the respondent represented Christopher Schaefer in the sale of real property located in Freeport, New York. The purchaser issued a check, dated June 30, 2017, payable to "The Rand Law Firm P.C. as attorney'," in the amount of $20,000, for the down payment on the property. By letter dated July 1, 2017, the respondent advised Anthony Iadevaia, counsel for the purchaser, "Please . . . be advised that I have deposited the $20,000.00 down payment into our Attorney Escrow account, pursuant to the terms of the Contract." The respondent failed to deposit the down payment in his attorney trust account.

The closing occurred on September 19, 2017. Following the closing, the respondent was in possession of the proceeds of the sale due to Schaefer. The respondent never provided Schaefer with an accounting. By email to the respondent dated December 6, 2017, Schaefer demanded the respondent to remit the proceeds of the transaction to which he was entitled as well as documents related to the closing. By email to Schaefer, dated December 8, 2017, the respondent stated, "I will be pleased to send you the requested info and check." To date, the respondent has failed to deliver either the proceeds or the requested documents to Schaefer, both of which Schaefer was entitled to receive.

Failure to Cooperate

1. Terrianne Messina

By letter dated December 13, 2017, sent first class mail, the respondent was provided with a copy of a complaint received from Frank A. Cetero, attorney for Terrianne Messina, which alleged, inter alia, that the respondent had failed to deliver funds he received on Messina's behalf in connection with two real estate transactions. The respondent was asked to provide a written answer within 10 days of his receipt of the letter. The respondent failed to answer or request additional time in which to do so. Despite three additional letters dated January 8, 2018, February 6, 2018, and March 8, 2018, sent certified mail, return receipt requested, requesting the same and advising that failure to respond constituted professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

2. Christopher Schaefer

By letter dated February 27, 2018, the respondent was provided with a copy of a complaint received from Christopher Schaefer, which alleged, inter alia, that the respondent had misappropriated funds being held in trust on behalf of Schaefer. The respondent was asked to provide a written answer within 10 days of his receipt of the letter. The respondent failed to answer or request additional time in which to do so. Despite two additional letters dated April 16, 2018, and May 8, 2018, sent certified mail, return receipt requested, requesting the same and advising that failure to respond constituted professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

3. Dishonored Check Notices

By notices dated June 25, 2018, August 10, 2018, and August 17, 2018, the Lawyers' Fund for Client Protection advised the Grievance Committee that ACH debits from the respondent's attorney trust account, maintained at Citibank, account number ending in 2022, were not paid due to insufficient funds.

4. Dominick J. Falletta

By letter dated August 22, 2018, the respondent was provided with a copy of a complaint received from Dominick J. Falletta, which alleged, inter alia, that the respondent failed to satisfy a judgment entered against him incurred incident to his practice of law. The respondent was asked to provide a written answer within 10 days of his receipt of the letter. The respondent failed to answer or request additional time in which to do so. Despite a second letter dated September 18, 2018, sent certified mail, return receipt requested, requesting the same and advising that failure to respond constituted professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

5. Judicial Subpoenas

On or about December 31, 2018, the Grievance Committee received a complaint from Suzanne Coughlin, which alleged, in part, that the respondent failed to deliver documents that she was entitled to receive and failed to return the unearned portion of the retainer. On January 14, 2019, the Grievance Committee received a complaint from Kenneth Meyers, alleging, in part, that the respondent neglected a legal matter entrusted to him. On or about January 14, 2019, the Grievance Committee received a complaint from Darlyn Hadfield, alleging, in part, that the respondent failed to deliver documents to her that she was entitled to receive.

At the time, the investigation of any open matter was stayed by a temporary restraining order contained in an order to show cause of this Court dated October 17, 2018, pending a determination of the respondent's motion for permission to participate in and complete a monitoring program. By decision and order dated March 20, 2019, the motion was denied.

On June 21, 2019, the respondent was served with a judicial subpoena and a judicial subpoena duces tecum. The subpoenas directed the respondent to produce (1) his complete legal file, including all bank and bookkeeping records in connection with the Messina and Schaefer matters; (2) bank and bookkeeping records for the respondent's Citibank attorney trust account for the period from January 1, 2018, through December 31, 2018; and (3) his complete legal files related to the Falletta, Coughlin, Meyers and Hadfield matters. On August 21, 2019, the respondent appeared at the Grievance Committee's offices for an examination under oath, but failed to produce any records. His failure continues to date.

Although personally served with a copy of the motion on February 15, 2020, the respondent has not served a response nor has he requested additional time in which to do so. The motion is therefore unopposed.

Conclusion

At the respondent's examination under oath on August 21, 2019, the respondent failed to produce any of the requested files and records. When examined, the respondent repeatedly invoked the Fifth Amendment and refused to testify. We find no reason not to draw an adverse inference under the circumstances.

We note that the respondent has a recent and significant disciplinary history consisting of a public censure issued in 2017 (Matter of Rand, 149 AD3d 194) and four Admonitions (one in 2014, one in 2017, and two in 2018).

We find that the Grievance Committee has sufficiently demonstrated that the respondent poses an immediate threat to the public interest based on his misappropriation of client funds and his repeat failure to cooperate with the Grievance Committee's investigation of multiple complaints.

Based on the foregoing, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 1240.9(a)(3) and (5), pending further order of this Court, and the matter is referred to a Special Referee to hear and report.

SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court