In re Burney
| Decision Date | 07 May 2020 |
| Docket Number | PM-73-20 |
| Citation | 121 N.Y.S.3d 915 (Mem),183 A.D.3d 1005 |
| Parties | In the MATTER OF Nathaniel Edward BURNEY, an Attorney. (Attorney Registration No. 2976066) |
| Court | New York Supreme Court — Appellate Division |
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Lauren S. Cousineau of counsel), for Attorney Grievance Committee for the Third Judicial Department.
Nathaniel Edward Burney, Florence, Alabama, respondent pro se.
Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Colangelo, JJ.
MEMORANDUM AND ORDER ON MOTION
Respondent was admitted to practice by this Court in 1999 and presently lists a business address in Alabama with the Office of Court Administration. Following receipt of a client complaint, the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) commenced an investigation into potential misconduct on the part of respondent. Thereafter, alleging that respondent had failed to cooperate with its investigation, AGC moved for respondent's interim suspension pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a)(1) and (3) and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.9.
On the eve of the return date, respondent submitted an affirmation in response to AGC's motion, which sought to address the allegations of the complaint. Based on the information provided therein, the matter was adjourned, upon AGC's request, to allow for respondent's cooperation with AGC's investigation. However, AGC has since advised that respondent has not responded to its requests for information and documents prompted by his affirmation and, accordingly, it has requested that the matter remain on the Court's calendar for consideration. In response, respondent has stated that his failure to respond to the requests of AGC stemmed from an unexpected illness and because he had lost access to his firm's emails. The parties have made no further submissions.
Pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a), a respondent may be suspended from the practice of law during the pendency of a disciplinary investigation upon a showing that he or she "has engaged in conduct immediately threatening the public interest." Proof that a respondent has " ‘defaulted in responding to a notice to appear for formal interview, examination or pursuant to subpoena, or has otherwise failed to comply with a lawful demand of an attorney grievance committee in the course of its investigation’ " is sufficient to establish such conduct ( Matter of McCoy–Jacien, 175 A.D.3d 801, 802, 105 N.Y.S.3d 225 [2019], quoting Matter of DiStefano, 154 A.D.3d 1055, 1057, 61 N.Y.S.3d 514 [2017] ; see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.9 [a][1], [3] ).
Having reviewed the parties' submissions, we find that AGC has sufficiently established respondent's failure to comply with its demands for documents, as well as his failure to appear for an examination. It is evident that respondent received multiple notices asking him to respond to his client's complaint and to appear for an examination and that he initially made no effort to respond (see Matter of Ackerman, 167 A.D.3d 1151, 1152, 87 N.Y.S.3d 538 [2018] ). Further, while respondent eventually provided an answer to the complaint in response to this motion, he has since failed to comply with lawful requests for documents pertaining to his client's file (see Matter of Basch, 175 A.D.3d 1772, 1773, 108 N.Y.S.3d 227 [2019] ; Matter of Cracolici, 173 A.D.3d 1430, 1431, 102 N.Y.S.3d 789 [2019] ). We find that respondent's belated efforts to provide the bare minimum compliance are insufficient to demonstrate his cooperation with AGC (see Matter of Tomney, 175 A.D.3d 810, 811, 103 N.Y.S.3d 879 [2019] ; Matter of DiStefano, 154 A.D.3d at 1056, 61 N.Y.S.3d 514 ). Finally, we find that respondent's assertion that he can no longer access his files does not excuse his failure to comply with a lawful investigation into his potential misconduct (see Matter of Tomney, 175 A.D.3d at 811, 103 N.Y.S.3d 879 ). Accordingly, we grant AGC's motion to suspend respondent on an interim basis while the investigation is pending, and remind respondent that he has an affirmative obligation to respond or appear for further investigatory or disciplinary...
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