Opinion
2011-03983 Attorney Registration No. 3927076 M125393
09-07-2011
In the Matter of Colvin C. Goddard, admitted as Colvin Cleon Goddard, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; v. Colvin C. Goddard, respondent.
, P.J.
REINALDO E. RIVERA
PETER B. SKELOS
MARK C. DILLON
THOMAS A. DICKERSON, JJ.
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, pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based on his failure to cooperate with the lawful demands of the Grievance Committee in its investigation of complaints of professional misconduct and other uncontroverted evidence of professional misconduct; (2) to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based upon the allegations set forth in a petition dated April 27, 2011; (3) to direct the respondent to answer the petition; and (4) to refer the issues raised to a Special Referee to hear and report. Application by the respondent to direct the Grievance Committee to prepare an amended petition including certain additional material. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 7, 2001, under the name Colvin Cleon Goddard.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the application 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, Colvin C. Goddard, admitted as Colvin Cleon Goddard, 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, Colvin C. Goddard, admitted as Colvin Cleon Goddard, 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, Colvin C. Goddard, admitted as Colvin Cleon Goddard, 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 Colvin C. Goddard, admitted as Colvin Cleon Goddard, based on the petition dated April 27, 2011; 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, 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 order, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer with this Court; and it is further,
ORDERED that the issues raised by the petition and any answer thereto are referred to David I. Ferber, Esq., Ferber, Chan, Essner & Coller, LLP, 530 Fifth Avenue, 23rd Floor, New York, N.Y. 10036, 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, Colvin C. Goddard, admitted as Colvin Cleon Goddard, 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); and it is further,
ORDERED that the application is denied.
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 Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee) and other uncontroverted evidence of professional misconduct concerning separate complaints filed by Ruby Harrison and Gwendolyn L. Knight, and several dishonored checks.
Harrison Complaint
On October 19, 2009, the Grievance Committee received a complaint of professional misconduct against the respondent from Ruby Harrison regarding an estate matter. By letter dated November 9, 2009, the respondent was forwarded a copy of the complaint. He was directed to submit an answer within 10 days of receipt of the letter. He was advised that an unexcused failure to submit an answer would constitute professional misconduct, independent of the merits of the underlying complaint.
The respondent submitted a written answer dated February 19, 2010, to the Harrison complaint.
By letter dated April 22, 2010, sent to the respondent's then attorney, Alfred Toussaint, the Grievance Committee requested certain documents and records relating to the underlying estate matter in the complaint. The respondent was thereafter directed to appear at the offices of the Grievance Committee on June 4, 2010, for an examination under oath. On June 4, 2010, Mr. Toussaint appeared without the respondent. None of the requested documents were produced. Mr. Toussaint advised the Grievance Committee that he had received an e-mail from the respondent on June 2, 2010, informing him that he was in Barbados and that for medical reasons he would not be able to travel for "a few weeks." Counsel was advised by the Grievance Committee that in addition to the previously requested records, the respondent would have to provide documentation for the dates that he was out of the country.
By letter to Mr. Toussaint dated July 26, 2010, the respondent was directed to appear at the Grievance Committee's office on August 16, 2010, to be examined under oath about the Harrison complaint. In a letter dated July 27, 2010, the respondent stated that he was returning to Barbados in the immediate future to "undergo a surgical procedure." Consequently, the examination under oath was rescheduled to October 21, 2010. On October 2, 2010, the Grievance Committee received a letter from the respondent, faxed by Mr. Toussaint, stating that the surgical procedure had been rescheduled to November 15, 2010. The respondent failed to appear for examination on October 21, 2010.
By letter to Mr. Toussaint dated January 3, 2011, the respondent was directed to provide the previously requested documents and bank records on or before January 12, 2011. He was also directed to provide proof of travel outside the United States in June 2010. The respondent failed to do so. In early January 2011, Mr. Toussaint withdrew as counsel for the respondent.
Knight Complaint
On December 17, 2010, the Grievance Committee received a complaint from Gwendolyn L. Knight. Ms. Knight alleged that she was the legal guardian of her uncle, an incapacitated person. Ms. Knight retained the respondent to advise her as her uncle's legal representative. In the course of the respondent's representation, Ms. Knight entrusted the respondent with a total of $104,250 to pay her uncle's bill at Highland Care Center (hereinafter the Center), a skilled nursing facility. Ms. Knight wrote one check payable to the respondent in the amount of $33,667 dated February 6, 2008, and two checks in the amounts of $12,153.63 and $58,429.37 both dated December 9, 2009. In December 2009, the respondent and the law firm representing the Center agreed to reduce the amount owed from $139,000 to $100,000 if paid by December 31, 2009. Although instructed to make payment, the respondent issued a check, dated December 10, 2009, to the Center from his operating account for $66,667 only. That check was returned for insufficient funds. The respondent subsequently issued a replacement check, certified for the same amount. The respondent issued a second check for $33,333, but instructed the Center not to deposit it. He never issued a replacement check or paid the balance of the bill. When Ms. Knight confronted the respondent, he stated that "he was working hard to straighten this out."
Since the bill was not paid in full by the deadline, the Center insisted on payment of the original balance of $139,000, which, reduced by the partial payment, left an outstanding balance of $72,333 ($139,000 minus $66,667). After further negotiations, Ms. Knight issued 2 checks from her uncle's funds to the Center, in the amounts of $50,000 and $10,000, which were accepted as payment in full.
With respect to the check dated February 6, 2008, in the amount of $33,667, bank records obtained by judicial subpoena showed that on February 7, 2008, the respondent deposited the check into his law office's business checking account at Commerce Bank, rather than his attorney escrow account. The bank records further showed that by February 29, 2008, the balance in the business checking account was negative $22.93, reflecting numerous cash withdrawals and personal bill payments. Ms. Knight never authorized or consented to the use of these funds for purposes other than the payment of her uncle's bill.
By letter dated January 5, 2011, the respondent was forwarded a copy of the complaint. He was directed to submit an answer within 10 days of receipt of the letter. He was advised that an unexcused failure to submit an answer would constitute professional misconduct, independent of the merits of the underlying complaint.
Dishonored Check Reports
In September and October 2010, the Grievance Committee commenced sua sponte investigations against the respondent upon receipt of four separate dishonored check reports from the Lawyers' Fund for Client Protection regarding the respondent's IOLA account. Although the Grievance Committee forwarded copies of the reports and directed the respondent to submit written answers within 20 days of receipt, along with six months of specified bookkeeping records from his IOLA account, the respondent failed to provide the requested written answers, and failed to provide the requested bookkeeping records. The respondent was advised with each copy of the report sent that unexcused failure to submit an answer or failure to produce the requested records would constitute professional misconduct, independent of the merits of the underlying complaint.
By letter dated January 8, 2011, the respondent requested a 90-day continuance to produce the specified bookkeeping records.
By letter dated January 11, 2011, the Grievance Committee directed the respondent to appear at its office for an examination under oath on February 3, 2011, with regard to the aforementioned matters. He was also directed to bring any written answers still outstanding and all previously requested records and documents.
On February 2, 2011, the respondent hand delivered to the Grievance Committee a notice of appearance from Stacey-Ann Harris. On the adjourned date, February 10, 2011, Ms. Harris appeared without the respondent. At Ms. Harris's request, the examination was again adjourned to February 17, 2011.
On February 17, 2011, the respondent appeared at the Grievance Committee's offices and handed a paper to Ms. Harris and then left without being examined and without providing an explanation for his departure. Ms. Harris stated on the record that her client handed her his answer to the Knight complaint, indicated that he could not stay, and further informed her that he did not have any of the documents responsive to the Grievance Committee's requests inasmuch as copies still needed to be made.
The proposed petition contains four charges of professional misconduct, alleging failure to cooperate with regard to multiple complaints and the conversion of client funds, in violation of rules 1.15(a), 1.15(b), 8.4(d) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0).
In opposition to the motion, the respondent, now appearing pro se, denies that he failed to cooperate with the Grievance Committee. With respect to his brief appearance at the Grievance Committee's offices on February 17, 2011, he claims that he told Grievance Counsel that "Ms. Harris was not properly briefed in the matter as she had not received all of the relevant materials and in light of the seriousness of the allegations, it would be unwise for him to go forward without the assistance of properly instructed counsel." He denies that he left without offering any explanation for his departure. Regarding the $33,667 in funds entrusted to him by Ms. Knight, the respondent maintains that these monies were given to him "for the pursuit of litigation involving Mr. Durham's estate." The respondent also made an application to direct the Grievance Committee to amend the petition to include additional material.
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 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, the matter is referred to a Special Referee to hear and report, and the respondent's application is denied.
PRUDENTI, P.J., RIVERA, SKELOS, DILLON and DICKERSON, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court