Decided on April 25, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias,Justice Presiding, David Friedman Rolando T. Acosta Helen E. Freedman Darcel D. Clark,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department.
Respondent Henry A.O. Banji was admitted to the practice of law in the State of New York by the Third Judicial Department on September 27, 2005, under the name Henry Aderemi Olubunmi Banji. 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 seeks an order, pursuant to 22 NYCRR 603.4(e)(1)(i), immediately suspending respondent from the practice of law until further order of this Court. The basis for the Committee's application is respondent's failure to cooperate with the Committee's investigation of allegations of his professional misconduct, which failure threatens the public interest. An additional basis for the application is respondent's failure to register with the Office of Court Administration and pay his biennial registration fee, in violation of Judiciary Law § 468-a.
The Committee opened an investigation into respondent's conduct after receiving a complaint in July 2011 from a client who alleged that he had neglected an immigration matter. It is alleged that respondent failed to file an appellate brief on behalf of this client, resulting in dismissal of his appeal.
By letter dated August 5, 2011, the Committee mailed a copy of the complaint to respondent's office requesting a written answer within 20 days. When no response was forthcoming, the Committee sent a second letter, dated September 6, 2011, this time via first-class mail and certified mail return receipt requested. The certified letter was returned for "insufficient address," but the first class letter was not returned. Beginning in October 2011, the Committee's investigator attempted on numerous occasions to locate respondent by leaving telephone voicemail messages, sending letters to his home address and business address (none of which were returned), and by conducting a LEXIS NEXIS search in which he obtained an additional mailing address for respondent in Texas. In May 2012, the investigator sent two letters to respondent at the Texas address, one by first-class mail and the other by certified mail. Both letters were returned to the Committee marked "attempted [to deliver]" and "unable to forward."
On September 13, 2012, the Committee investigator went to respondent's business address and confirmed that he no longer practices at that Bronx location. To date, respondent has not replied to the Committee with respect to the pending complaint against him, nor has he otherwise contacted the DDC.
The Committee, believing every effort had been made to obtain respondent's cooperation with its investigation, and having never received a proper mailing address, concluded that it was unable to serve respondent personally with the instant interim suspension motion. Accordingly, by unpublished order entered December 14, 2012, the Presiding Justice of this Court granted the Committee's motion for an order, pursuant to Judiciary Law § 90(6) and 22 NYCRR 601.1, permitting notice of this application to be given respondent by publication in the New York Law Journal. Service was also effectuated by mailing a ...