Disciplinary Review Board Bonnie C. Frost, Chair

Disciplinary Review Board
District Docket No. XIV-2017-0673E Decision

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

This matter was before us on a certification of the record filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The formal ethics complaint charged respondent with violations of RPC 8.1(b) (failure to reply to a lawful demand for information from a disciplinary authority) and RPC 8.4(d) (conduct prejudicial to the administration of justice), based on her failure to file the required R. 1:20-20 affidavit, following her suspension from the practice of law.

For the reasons set forth below, we determine to impose a two-year suspension.

Respondent was admitted to the New Jersey and Pennsylvania bars in 1988. On May 5, 2008, she received a reprimand in a default matter for gross neglect in a divorce proceeding, based on her failure to file an answer on behalf of her client, and for failure to cooperate with disciplinary authorities. In re Wright, 194 N.J. 503 (2008).

On July 16, 2015, respondent received a censure, also in a default matter, for failure to expedite litigation, failure to return a client's file upon termination of the representation, and failure to cooperate with disciplinary authorities in one client matter, and lack of diligence, failure to communicate with the client, failure to refund all or part of an unearned retainer upon termination of the representation, and failure to cooperate with disciplinary authorities in a second client matter. In re Wright, 222 N.J. 27 (2015).

On September 8, 2017, respondent was suspended from the practice of law for six months, in a third default matter, for knowingly disobeying an obligation under the rules of a tribunal, failing to cooperate with disciplinary authorities, and engaging in conduct prejudicial to the administration of justice. In re Wright, 230 N.J. 345 (2017).

Most recently, on May 3, 2019, respondent received a one-year suspension based on her three-year suspension in Pennsylvania for violations of the Pennsylvania equivalent of New Jersey RPC 3.3(a)(1) (knowingly make a false statement to a tribunal); RPC 5.5(a) (practicing while ineligible); RPC 7.1(a) (a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services); RPC 7.5(a) (a lawyer shall not use a firm name, letterhead or other professional designation that violates RPC 7.1); RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and RPC 8.4(d) (conduct prejudicial to the administration of justice). In re Wright, ___ N.J. ___ (2019).

Service of process was proper in this matter. On August 23, 2018, in accordance with R. 1:20-7(h), the OAE sent a copy of the complaint, by regular and certified mail, return receipt requested, to respondent's last known address listed in the records of the New Jersey Lawyers' Fund for Client Protection, in Willingboro, New Jersey. The certified mail receipt was returned marked "Unclaimed," and the regular mail was not returned.

On October 3, 2018, the OAE sent a letter to respondent in accordance with R. 1:20-4(f), to the same Willingboro, New Jersey address, by certified mail, return receipt requested, and by regular mail. The letter informed respondent that, if she failed to file a verified answer to the complaint within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the entire record would be certified directly to us for the imposition of discipline, and the complaint would be deemed amended to include a violation of RPC 8.1(b). The certified mail receipt was returned marked "Unclaimed," and the regular mail was not returned.

As of November 19, 2018, respondent had not filed an answer to the complaint, and the time within which she was required to do so had expired. Accordingly, the OAE certified this matter to us as a default.

We now turn to the allegations of the complaint.

Pursuant to the Court's September 8, 2017 Order suspending respondent for six months, she was ordered to comply with R. 1:20-20, which requires, among other things, that respondent "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.

By letter dated January 29, 2018, sent to respondent's Willingboro, New Jersey address, by certified and regular mail, the OAE reminded her of her responsibility to file the affidavit pursuant to R. 1:20-20. The OAE also requested a response by February 12, 2018, indicating which clients, if any, respondent was representing at the time of her suspension, when and how she notified them of her suspension, and whether she delivered their files to the clients or to their new attorney. The certified mail return receipt was returned, signed by respondent, to the OAE, indicating delivery on January 31, 2018. The letter sent by regular mail to this address was not returned. Respondent neither replied to the letter nor filed the required affidavit.

Following a review of the record, we find that the facts recited in the complaint 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).

Respondent willfully violated the Court's September 8, 2017 Order, and failed to take the steps required of all suspended attorneys, including notifying clients and adversaries of the suspension and providing clients with their files. She continued that failure, despite a letter from the OAE reminding her of her responsibility to comply. Her failure to comply with R. 1:20-20 constitutes violations of RPC 8.1(b) and RPC 8.4(d).

Although the threshold measure of discipline to be imposed for a suspended attorney's failure to comply with R. 1:20-20 is a reprimand, the actual discipline imposed may be different if the record demonstrates mitigating or aggravating circumstances. In re Girdler, 179 N.J. 227 (2004); In the Matter of Richard B. Girdler, DRB 03-278 (November 20, 2003) (slip op. at 6). Examples of aggravating factors include the attorney's failure to respond to the OAE's specific request that the affidavit be filed, the attorney's failure to answer the complaint, and the attorney's disciplinary history. Ibid.

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, even after prodding by the OAE, Girdler failed to produce the affidavit of compliance in accordance with that Rule, after he had agreed to do so. Girdler had a prior public reprimand, private reprimand, and three-month suspension.

Here, respondent has received a reprimand, a censure, a six-month suspension, and a one-year suspension. Other than her most recent matter which was before us on a motion for reciprocal discipline, each of respondent's prior matters, as is the case in the instant matter, proceeded by way of default.

Attorneys who fail to file the R. 1:20-20 affidavit, allow that disciplinary matter to proceed by way of default, and previously have been suspended for a fixed term, have received three-month to two-year suspensions. See, e.g., In re Berkman, 205 N.J. 313 (2011) (three-month suspension where attorney had a prior nine-month suspension); In re Garcia, 205 N.J. 314 (2011) (three-month suspension for attorney's failure to comply with R. 1:20-20; her disciplinary history consisted of a fifteen-month suspension); In re Rosanelli, 208 N.J. 359 (2011) (six-month suspension imposed on attorney who failed to comply with R. 1:20-20 after a six-month suspension in 2003, a temporary suspension in 2009 and a three-month suspension in 2010); In re Sharma, 203 N.J. 428 (2010); (six-month suspension; ethics history included a censure for misconduct in two default matters and a three-month suspension; aggravating factor considered was his repeated failure to cooperate with disciplinary authorities); In re Wood, 193 N.J. 487 (2008) (one-year suspension; the attorney had an extensive disciplinary history: an admonition, a reprimand, a censure, and a three-month suspension; two of those matters proceeded on a default basis); In re Wargo, 196 N.J. 542 (2008) (one-year suspension; 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 disciplinary proceedings proceeded on a default basis); In re Brekus, 208 N.J. 341 (2011) (two-year suspension; 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); and In re Kozlowski, 192 N.J. 438 (2007) (two-year suspension; the attorney's significant disciplinary history included a private reprimand, an admonition, three reprimands, a three-month suspension, and a one-year suspension; the attorney defaulted in six disciplinary matters, and his "repeated indifference toward the ethics system" was found to be "beyond forbearance").

This is respondent's fourth default out of five disciplinary matters that have been before us. As in Kozlowski, respondent has shown a "repeated indifference toward the ethics system." Therefore, in accordance with Kozlowski and the principles of progressive discipline, we determine to impose a prospective two-year suspension.

Members Gallipoli and Joseph did not participate.

We further determine to require respondent to reimburse the Disciplinary 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

Decided: June 19, 2019 Disposition: Two-Year Suspension

/s/_________

Ellen A. Brodsky

Chief Counsel