Opinion
2013-00539 Attorney Registration No. 1648229 M155421
04-26-2013
In the Matter of Derek P. McDowell, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; v. Derek P. McDowell, respondent.
, P.J.
WILLIAM F. MASTRO
PETER B. SKELOS
MARK C. DILLON
PLUMMER E. LOTT, 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 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 in that he has failed to cooperate with the lawful demands of the Grievance Committee; (2) to authorize the institution and prosecution of a disciplinary proceeding based upon a verified petition dated January 14, 2013; 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 the verified petition 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, 1979.
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, Derek P. McDowell, 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, Derek P. McDowell, 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, Derek P. McDowell, 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 Derek P. McDowell, based on the verified petition dated January 14, 2013; and it is further,
ORDERED that Diana Maxfield Kearse, Chief Counsel of the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201, 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, Derek P. McDowell, 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 the Honorable Charles Thomas, a former Justice of the Supreme Court, Eleventh Judicial District, 50 East 89th Street, 10-F, New York, N.Y. 10128, 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, Derek P. McDowell, 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, as follows:
On August 31, 2012, the Grievance Committee received a complaint of professional misconduct against the respondent from Laurice Mann, alleging that the respondent had neglected a legal matter for which Mann had retained him "2 [and a half] years ago."
Grievance Committee staff requested the respondent's answer to the complaint by several letters. A letter dated September 12, 2012, was sent to the respondent's law office address by regular mail. Letters dated October 15, 2012, were sent to the respondent's law office address by regular and certified mail, and the certified mail letter was returned, marked "Return to Sender, Unclaimed, Unable to Forward." A letter dated October 16, 2012, was sent to the respondent's home address, by regular mail. A letter dated November 5, 2012, was sent to the respondent's home address by regular and certified mail, and the certified mail postal receipt indictes that the letter was received on November 6, 2012, and was signed for by the respondent's wife. The respondent failed to answer these letters.
On December 3, 2012, a Grievance Committee staff member telephoned the respondent's law office, and a recorded message stated that the number was "not in service." A Grievance Committee staff member also telephoned the respondent's cell phone, and left a message that it was "urgent" for him to return the call. Additionally, a Grievance Committee staff member telephoned the respondent's home and spoke to a woman who identified herself as the respondent's wife. When she confirmed that the respondent resided there, the Grievance Committee staff member left a message that it was "urgent" for the respondent to return the call. The respondent failed to call back.
On December 21, 2012, the Grievance Committee's investigator hand delivered a letter to the respondent's home address. A woman who identified herself as the respondent's wife, "Shellie McDowell," signed for the letter on the respondent's behalf. No answer was received.
On January 4, 2013, a Grievance Committee staff member called the respondent's cell phone and left a message indicating that it was "urgent" for him to call the Grievance Committee's office immediately. The respondent failed to call back.
As of the date that the motion was made, the respondent had failed to answer to the Mann complaint, as required, despite the Grievance Committee's efforts to secure an answer over a period of five months.
By letter dated January 31, 2013, the Grievance Committee advised the Court that it received a purported answer to the Mann complaint, which had been hand delivered to the Grievance Committee's office by someone other than the respondent. The purported answer did not contain an address, telephone number, or other contact information for the respondent. Moreover, the purported answer neither indicated that it was served on the Court, nor addressed the Grievance Committee's motion.
The Grievance Committee advised further, on notice to the respondent, that it had received an additional complaint of professional misconduct against the respondent from Kings County Surrogate Margarita Lopez Torres. By letter dated January 17, 2013, the respondent was directed to submit a written answer to the complaint within 10 days. As of January 31, 2013, the respondent had failed to do so.
The respondent has neither opposed the motion nor submitted any response thereto.
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), 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, SKELOS, DILLON and LOTT, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court