Matter of McClain-Sewer

Matter of McClain-Sewer 2007 NY Slip Op 01016 [39 AD3d 35] February 6, 2007 Per Curiam, J. Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 23, 2007

[*1] In the Matter of Frank McClain-Sewer, an Attorney, Respondent. Departmental Disciplinary Committee for the First Judicial Department, Petitioner.

First Department, February 6, 2007

APPEARANCES OF COUNSEL

Kevin P. Culley (Thomas J. Cahill, Chief Counsel), for petitioner.

No appearance for respondent.

{**39 AD3d at 36} OPINION OF THE COURT

Per Curiam.

Respondent Frank McClain-Sewer was admitted to the practice of law in the State of [*2]New York by the Second Judicial Department on September 24, 1986. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

The Departmental Disciplinary Committee moves for an order pursuant to 22 NYCRR 603.4 (e) (1) (i), immediately suspending respondent from the practice of law until further order of the Court due to his failure to cooperate with the Committee's investigation into a complaint of professional misconduct which threatens the public interest.

The Committee opened an investigation into respondent's conduct when it received a complaint from Francisco Aponte alleging that respondent neglected the legal matter on which he was retained, that respondent made false promises to Aponte as to the sentence he would receive, and that respondent charged an excessive fee. Respondent failed to respond to the Committee's initial inquiry regarding the complaint, and thereafter failed to respond to follow-up letters, telephone messages, and the Committee's judicial subpoena directing respondent's appearance for deposition and the production of documents.

Pursuant to 22 NYCRR 603.4 (e) (1), this Court may suspend an attorney from the practice of law pending consideration of charges of professional misconduct, upon a finding that the attorney is guilty of professional misconduct immediately threatening the public interest. Such a finding may be based upon "the attorney's failure . . . to comply with any lawful demand of this Court or the Departmental Disciplinary Committee made in connection with any investigation" (22 NYCRR 603.4 [e] [1] [i]).

Respondent's failure to respond to the Committee's numerous letters, calls, and subpoena seeking a response to the complaint, and his failure to respond to this motion, demonstrates a willful noncompliance with a Committee investigation and threatens the public interest, warranting an immediate suspension from the practice of law (see Matter of Pierini, 21 AD3d 42 [2005]; Matter of Kamgar, 7 AD3d 114 [2004]).{**39 AD3d at 37}

Accordingly, the Committee's motion should be granted and respondent suspended from the practice of law, effective immediately, pursuant to 22 NYCRR 603.4 (e) (1) (i), and until the further order of this Court.

Andrias, J.P., Saxe, Buckley, Gonzalez and McGuire, JJ., concur.

Respondent suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court.