Disciplinary Review Board Bonnie C. Frost, Chair

District Docket No. XIV-2013-0012E Decision

To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

This matter came before us on a certification of default filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The complaint charged respondent with having violated RPC 8.1(b) (failure to cooperate with disciplinary authorities) and RPC 8.4(d) (conduct prejudicial to the administration of justice) for his failure to comply with the New Jersey Supreme Court's order requiring him to file an affidavit of compliance with R. 1:20-20, following his April 23, 2012 temporary suspension from the practice of law. The OAE recommended a reprimand. We determine that a censure is the appropriate discipline in this matter.

Respondent was admitted to the New Jersey bar in 1989. Although he has no history of final discipline, the Court temporarily suspended him, effective April 23, 2012, for his failure to comply with a fee arbitration determination. In re Vreeland, 210 N.J. 94 (2012).

Service of process was proper in this matter. On October 11, 2013, the OAE sent a copy of the complaint, by regular and certified mail, to respondent's last known home address, provided by the CLEAR database available through Thomson Reuters. The certified mail was returned marked "Unclaimed" and the regular mail was returned with a hand-written notation: "RETURN TO SENDER NOT AT THIS ADDRESS + FORWARDING ADDRESS UNKNOWN."

Subsequently, the complaint was served on respondent by publication. Notice was published, on November 30, 2013, in The Herald; on December 3, 2013, in The Star Ledger; and, on December 9, 2013, in The New Jersey Law Journal. As of June 11, 2013, the date of the certification of the record, respondent had not filed an answer to the complaint.

The facts of this matter are as follows:

As indicated previously, by Supreme Court order filed March 22, 2012 respondent was temporarily suspended from the practice of law in New Jersey, effective April 23, 2012. He remains suspended to date. Attorney registration records show that, prior to his suspension, respondent maintained his law office in Bloomfield, New Jersey. The records also show the law office address as respondent's home.

The Court's order of suspension directed respondent to comply with R. 1:20-20, which requires, among other things, that a suspended attorney "shall within 30 days after the date of the order of suspension (regardless of the effective date thereof) file with the Director the original of a detailed affidavit specifying by correlatively numbered paragraphs, how the disciplined attorney has complied with each of the provisions of this rule and the Supreme Court's order." Respondent failed to do so.

On January 17, 2013, the OAE sent a letter to respondent, by certified and regular mail, to his office address and to an additional Bloomfield address, discovered during the OAE's investigation, advising him of his responsibility to file the affidavit of compliance with R. 1:20-20. That letter also requested a response by January 31, 2013. Both the regular and certified letters sent to the office/home address were returned. The regular mail was returned marked "Not Deliverable as Addressed Unable to Forward." The certified letter was returned marked "Return to Sender No Such Street." Tracking information on the USPS website shows the status of the certified letter as "Moved, Left no Address." The certified letter sent to the newly-discovered address was returned to the OAE as unclaimed. The regular mail sent to that address was not returned to the OAE.

Respondent did not answer the OAE's letter, nor did he file the required affidavit.

The complaint alleges sufficient facts to support the charges of unethical conduct. Respondent's failure to file an answer is deemed an admission that the allegations of the complaint are true and that they provide a sufficient basis for the imposition of discipline (R. 1:20-4(f)(1)). Despite having been temporarily suspended, respondent failed to submit the affidavit of compliance required by R. 1:20-20.

The threshold measure of discipline to be imposed for a suspended attorney's failure to comply with R. 1:20-20 is a reprimand. In re Girdler, 179 N.J. 227 (2004). The actual discipline imposed may be different, however, if the record demonstrates mitigating or aggravating circumstances. In the Matter of Richard B. Girdler, DRB 03-278 (November 20, 2003) (slip op. at 6). In Girdler, the attorney received a three-month suspension, in a default matter, for his failure to comply with R. 1:20-20(e)(15). Specifically, after prodding by the OAE, the attorney failed to produce the affidavit of compliance in accordance with that rule, even though he had agreed to do so. The attorney's disciplinary history consisted of a public reprimand, a private reprimand, and a three-month suspension in a default matter.

After Girdler, discipline greater than a reprimand was imposed in the following cases: In re Terrell, 214 N.J. 44 (2013) (in a default matter, censure imposed on attorney who failed to file the R. 1:20-20 affidavit following a temporary suspension); In re Fox, 210 N.J. 255 (2012) (in a default matter, censure imposed on attorney who failed to file the R. 1:20-20 affidavit of compliance following a temporary suspension); In re Saint-Cvr, 210 N.J. 254 (2012) (in a default matter, censure imposed on attorney who failed to file the R. 1:20-20 affidavit following a temporary suspension); In re Sirkin, 208 N.J. 432 (2011) (in a default matter, censure imposed on attorney who failed to file the R. 1:20-20 affidavit following a three-month suspension); In re Gahles, 205 N.J. 471 (2011) (in a default matter, censure for an attorney who failed to file the R. 1:20-20 affidavit following a temporary suspension and then again after being prompted by the OAE to do so; the attorney had received a reprimand in 1999, an admonition in 2005, and a temporary suspension in 2008 for failure to pay a fee arbitration award, as well as a $500 sanction; she remained suspended at the time of the default); In re Garcia, 205 N.J. 314 (2011) (in a default matter, three-month suspension for attorney's failure to comply with the OAE's specific request that she file the affidavit; her disciplinary history consisted of a fifteen-month suspension); In re Berkman, 205 N.J. 313 (2011) (in a default matter, three-month suspension where the attorney had a prior nine-month suspension); In re Battaglia, 182 N.J. 590 (2006) (three-month suspension, retroactive to the date that the attorney filed the affidavit of compliance, submitted contemporaneously with his answer to the complaint; the attorney's ethics history included two concurrent three-month suspensions and a temporary suspension); In re Raines. 181 N.J. 537 (2004) (three-month suspension for failure to file the affidavit of compliance; the attorney's ethics history included a private reprimand, a three-month suspension, a six-month suspension, and a temporary suspension for failure to comply with a previous Court order); In re Rosanelli, 208 N.J. 359 (2011) (in a default matter, six-month suspension for attorney who failed to comply with R. 1:20-20 after a temporary suspension; the attorney ignored the OAE's specific request that he submit the affidavit; disciplinary history consisted of a three-month suspension in a default matter and a six-month suspension); In re Warao, 196 N.J. 542 (2009) (in a default matter, one-year suspension for failure to file the R. 1:20-20 affidavit; the attorney's ethics history included a temporary suspension for failure to cooperate with the OAE, a censure, and a combined one-year suspension for misconduct in two separate matters; all matters proceeded on a default basis); and In re Brekus, 208 N.J. 341 (2011) (in a default matter, two-year suspension imposed on attorney with significant ethics history: a 2000 admonition, a 2006 reprimand, a 2009 one-year suspension, a 2009 censure, and a 2010 one-year suspension, also by default).

Respondent's lack of attention to his obligation to file the R. 1:20-20 affidavit is somewhat puzzling, considering that he has been practicing for twenty-five years, without so much as a disciplinary "hiccup." Not only did he not file the necessary affidavit, but he defaulted in this matter. Like attorneys Terrell, Saint-Ceyr, and Sirkin, who had no history of final discipline, failed to file the required affidavits, following a temporary suspension, and then defaulted in the disciplinary matter that ensued, respondent, too, should receive a censure. We so determine.

Members Yamner and Rivera did not participate.

We further determine to require respondent to reimburse the Discipline Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.

Disciplinary Review Board

Bonnie C. Frost, Chair

By : /s/_________

Ellen A. Brodsky

Chief Counsel

VOTING RECORD

Disposition: Censure

/s/_________

Ellen A. Brods

Chief Counsel