Opinion
Motion No: 2011-01470 Attorney Registration No. 1301308M124487
08-16-2011
In the Matter of Raymond E. Kerno, admitted as Raymond Eugene Kerno, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; v. Raymond E. Kerno, respndent.
, J.P.
REINALDO E. RIVERA
PETER B. SKELOS
MARK C. DILLON
JOSEPH COVELLO, JJ.
DECISION & ORDER ON MOTION
Motion by the Grievance Committee for the Tenth Judicial District: (1) to suspend the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with lawful demands of the Grievance Committee made in connection with its investigations into his professional conduct, his substantial admissions under oath, and other uncontroverted evidence of professional misconduct; and (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based on a verified petition dated January 18, 2011. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on January 15, 1973, under the name Raymond Eugene Kerno.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), the respondent, Raymond E. Kerno, admitted as Raymond Eugene Kerno, 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, Raymond E. Kerno, admitted as Raymond Eugene Kerno, 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, Raymond E. Kerno, admitted as Raymond Eugene Kerno, 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 Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Raymond E. Kerno, based on the verified petition dated January 18, 2011; and it is further,
ORDERED that Robert A. Green, Chief Counsel, Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Suite 102, Hauppauge, N.Y. 11788, 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, Raymond E. Kerno, admitted as Raymond Eugene Kerno, 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 verified petition and any answer thereto are referred to Honorable James G. Starkey, a retired justice of the Supreme Court, Kings County, 215 Adams Street, Suite 15B, Brooklyn, N.Y. 11201, 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, Raymond E. Kerno, admitted as Raymond Eugene Kerno, 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 lawful demands of the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) made in connection with its investigation into his professional conduct, his substantial admissions under oath, and other uncontroverted evidence of professional misconduct.
The instant motion emanates from nine complaints of professional misconduct filed against the respondent between April 2009 and October 2010.
The Marcus Complaint
The Grievance Committee received a complaint against the respondent from David S. Marcus dated April 27, 2009. The complaint concerned a CPLR article 78 proceeding the respondent was retained to handle. Although the respondent filed the article 78 petition, and discontinued it pursuant to a stipulated settlement, the respondent neglected the matter by failing to adequately respond to Marcus's inquiries. The matter was referred fee dispute arbitration in Nassau County, pursuant to 22 NYCRR part 137, inasmuch as Marcus requested a refund of the legal fee paid to the respondent. However, the respondent failed to participate in the fee dispute arbitration process by failing to submit a written response to the request for arbitration, despite two requests made to him by the aribtration administrator.
The Grievance Committee sent letters to the respondent dated October 9, 2009, November 9, 2009, and February 1, 2010, requesting a written answer to the Marcus complaint. All of the letters were sent by regular and/or certified mail, return receipt requested, to the office address listed for the respondent with the Office of Court Administration. The letter sent by regular mail was not returned and the letter sent by certified mail dated November 9, 2009, was delivered on November 13, 2009. The respondent failed to timely reply to either of these letters, and did not provide a written answer to the Marcus complaint until March 23, 2010, after being directed to do so at his examination under oath at the Grievance Committee's office on March 12, 2010. In his written answer, the respondent indicated that he had adequately performed the legal services for which he was retained, but admitted that it was wrong to stop communicating with Marcus.
Under oath, the respondent admitted that he stopped taking telephone calls from Marcus, who was inquiring about his matter, and that he failed to reply to emails from both Marcus and the attorney who had referred Marcus to him. The respondent also acknowledged that he failed to reply to letters from the arbitration administrator requesting a response to Marcus's request for fee arbitration.
The Kuklinski Complaints
The Grievance Committee received complaints against the respondent from Robert Kuklinski and Mary Kuklinski, his mother, dated August 25, 2009, and September 1, 2009, respectively. Mr. Kuklinski was serving an indeterminate term of incarceration in connection with a felony conviction and his mother retained the respondent in August 2007 to explore her son's legal options and, later, in September 2007, to prepare and file a motion to vacate the judgment of conviction pursuant to CPL 440. The respondent failed to file the CPL 440 motion and ceased communicating with the Kuklinskis.
The respondent failed to submit a timely written answer to either complaint, despite letters from the Grievance Committee dated September 4, 2009, October 6, 2009, October 19, 2009, November 9, 2009, and February 1, 2010. None of the letters sent by regular mail were returned. Of the letters sent by certified mail, return receipt requested, some were claimed while others were not. The respondent did not file a written answer to the Kuklinski complaints until March 29, 2010, after being directed to do so at his examination under oath at the Grievance Committee's office on March 12, 2010. In his written answer, the respondent acknowledged that he had failed to timely file the CPL 440 motion. The respondent also apologized for not being in "better communication" with his client. He requested that the client permit him to continue in the matter.
Under oath, the respondent admitted failing to maintain contact with his client and conceded that he had not been successful in preparing a suitable motion. The respondent admittedly had not worked on the matter for at least the previous six months, without informing the client of same.
By letter dated April 12, 2010, Mr. Kuklinski replied to the respondent's answer and agreed to have the respondent continue to represent him. However, the respondent persisted in neglecting the matter. As of January 2011, the CPL 440 motion had not been filed, and the respondent had again failed to maintain contact with his client.
The Goldin/Deutsch Complaint
The Grievance Committee received a complaint against the respondent from Wendy Goldin and Kenneth Deutsch dated October 6, 2009. Goldin and Deutsch alleged that the respondent had neglected their legal matter by failing to timely seek leave to appeal to the Court of Appeals from the dismissal of so much of their action as sought damages from a country club. Moreover, the respondent had failed to reply completely or accurately to their stated concerns that the motion for leave to appeal be timely filed.
The respondent failed to submit a timely written answer to the Goldin/Deutsch complaint, as requested in the Grievance Committee's letters dated October 19, 2009, November 9, 2009, and February 1, 2010. The letters sent by regular mail were not returned, while those sent by certified mailed were unclaimed and returned. The respondent did not submit a written answer to the Goldin/Deutsch complaint until March 23, 2010, after being directed to do so at his examination under oath at the Grievance Committee's office on March 12, 2010. In his written answer, the respondent admitted failing to maintain communication with his clients, to the extent that he ceased contact with Deutsch. In their reply to the respondent's written answer, Goldin/Deutsch asserted that the respondent did not have the "decency" to advise them that the motion insofar as it sought leave to appeal against the country club had been denied as untimely; they only discovered this through the efforts of another attorney. Goldin/Deutsch brought suit against the respondent for a refund of the legal fee paid, and received an award of $5,000.
The Lyons/Anderson Complaints
The Grievance Committee received complaints against the respondent from Donna Marie Anderson and Ricardo Lyons, dated December 28, 2009, and January 28, 2010, respectively. Anderson's son, Lyons, had been convicted of murder in the second degree and was serving an indeterminate life sentence. Anderson had retained the respondent on or about January 23, 2007, to prosecute an appeal of her son's criminal conviction before the Appellate Division, Second Judicial Department. She paid the respondent a total of $15,000, plus $5,388 for the transcript. After more than two years, the respondent failed to perfect the appeal and/or file a brief with the Appellate Division. In and around December 2009, Anderson and/or Lyons advised the respondent that his representation was being terminated, and he was requested to refund the legal fee. From that point forward, the respondent ceased communicating with his client and failed to reply to repeated communications. Lyons's new counsel sent a letter to the respondent, dated January 19, 2010, advising the respondent that he had been discharged and requesting that he turn over the file so that the appeal could be perfected. The respondent did not reply to the letter or forward the file to successor counsel.
The respondent failed to submit a timely written answer to the Lyons/Anderson complaints, as requested in letters from the Grievance Committee dated January 19, 2010, February 1, 2010, and February 3, 2010. In fact, the respondent did not answer the Lyons/Anderson complaint until March 29, 2010, after being directed to do so at his examination under oath at the Grievance Committee's office on March 12, 2010. In his written answer, the respondent asserted that some of the delay in perfecting the appeal was attributable to difficulty obtaining a "complete copy" of the trial transcript, but admitted that, even after receiving the entire transcript, he still did not complete the brief.
Under oath, the respondent conceded that he had not been in contact with his client since the previous December. At that time, Anderson told the respondent that she was looking for another lawyer and demanded a refund. The respondent also acknowledged that he received the January 19, 2010, letter from successor counsel, that he had not replied to it, and that he had not turned over the file. He admitted that he had no justification. As of January 2011, the respondent had not refunded any portion of the legal fee as requested by Anderson.
The Goldfarb Complaint
The Grievance Committee received a complaint against the respondent from David C. Goldfarb dated April 5, 2010. Goldfarb retained the respondent in or about August 2009, and paid a retainer fee of $2,500. Subsequently, the respondent advised Goldfarb that the matter required the preparation and filing of a CPLR Article 78 petition. On or about October 9, 2009, Goldfarb entered into a second retainer with the respondent and paid him an additional $2,500. Thereafter, the respondent ceased communicating with Goldfarb and failed to file the CPLR article 78 proceeding for which he was retained. The respondent submitted a written answer to the Goldfarb complaint, dated April 26, 2010. He admitted therein that he had not completed the legal matter for which he was retained and that he had failed to maintain communication with his client.
Goldfarb submitted a request for fee dispute arbitration, pursuant to Part 137, with the Nassau County Supreme Court. The respondent failed to participate in the fee dispute arbitration process, by failing to submit a written answer despite two letters from the Part 137 administrator dated February 17, 2010, and March 16, 2010, respectively. The respondent also defaulted at the arbitration hearing, which resulted in an award to Goldfarb of $5,000. As of January 2011, the respondent had failed to satisfy the arbitration award.
The Galesi Complaint
The Grievance Committee received a complaint against the respondent from Frank Galesi dated March 2010. Galesi had retained the respondent, on or about December 26, 2008, to defend him in civil litigation brought in the United States Bankruptcy Court for the Eastern District of New York , and paid the respondent legal fees totaling $11,500. Beginning in and around December 2009 to January 2010, Galesi made numerous attempts to contact the respondent about the status of the matter, to no avail. The respondent also failed to respond to a March 11, 2010 letter from Galesi. The respondent submitted a written answer to the Galesi complaint, which was received May 3, 2010, and a supplemental answer dated August 20, 2010, wherein he disclosed that the litigation had been resolved in Galesi's favor. The respondent admitted that he had not been in contact with Galesi since January 2010 and that he "failed to communicate with the client and failed to advise him of this good news until after he made the . . . complaint."
Sua Sponte Investigation
By letter dated October 12, 2010, the Clerk of the Appellate Division, Second Judicial Department, referred documents to the Grievance Committee pertaining to the respondent's conduct in connection with a criminal appeal, based upon which the Grievance Committee commenced a sua sponte investigation. As related in the foregoing letter, and corroborated by the attached documents, the Court appointed the respondent to prosecute a criminal appeal in the matter of People v Perez-Olivo. The respondent did not timely perfect the appeal and was relieved of the assignment after failing to reply to a series of assignment status letters.
The uncontroverted evidence established that the respondent was appointed to prosecute the appeal by order dated September 4, 2009. Said order directed the respondent to prosecute the appeal expeditiously. Thereafter, the respondent failed to reply to a series of letters from the Court concerning the status of the matter and/or the steps he had taken to perfect the appeal. The respondent ignored a 180-day status letter dated March 8, 2010; a 270-day status letter dated June 7, 2010; two other status letters dated July 29, 2010, and August 31, 2010, respectively; and a final letter from the Clerk of the Court dated September 28, 2010. In addition, the respondent ignored two voice-mail messages left for him by the Court on September 16, 2010, and September 23, 2010, respectively.
Through counsel, the respondent submitted a written answer to the sua sponte complaint. In pertinent part, the answer stated that "[o]ur client's lack of response to the letters sent to him by the Clerk of the Court is a conceded undeniable fact. It was, admittedly, a grievous wrong." The answer further acknowledged that the underlying events occurred during the same period of time that the respondent was dealing with the other complaints, during which he did not open most of his mail. The respondent's counsel attributed this "outrageous negligent behavior" to health issues identified in a March 2010 report, which was "informally" provided to the Grievance Committee. Said issues were not raised at the respondent's examination under oath.
The respondent submitted an affirmation in opposition to the instant motion, asserting that his conduct was the byproduct of health issues and that none of the acts alleged involved "moral turpitude." However, moral turpitude is not a required element for suspension pursuant to 22 NYCRR 691.4. Moreover, the respondent offered no evidence of treatment and/or the present status of his health issues.
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), (ii), and (iii), pending further order of this Court; the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him; and the matter is referred to a Special Referee to hear and report.
MASTRO, JP, RIVERA, SKELOS, DILLON and COVELLO, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court