Opinion
Docket No. DRB 16-237
02-23-2017
IN THE MATTER OF KATRINA F. WRIGHT AN ATTORNEY AT LAW
Disciplinary Review Board
District Docket No. XIV-2011-0611E 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 default, filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The complaint charged respondent with having violated RPC 1.15(a) (failure to safeguard property), RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), RPC 8.1(b) (failure to cooperate), and RPC 8.4(d) (conduct prejudicial to the administration of justice). For the reasons set forth below, we determine to impose a six-month suspension.
Respondent was admitted to the New Jersey bar in 1988. On May 2, 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 for 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).
Service of process was proper in this matter. On May 20, 2016, the OAE sent a copy of the amended complaint to respondent, in accordance with R. 1:20-7(h), by certified mail, return receipt requested, and by regular mail, to her office address in Willingboro, New Jersey. The certified mail receipt was returned indicating delivery on June 9, 2016 and was signed by "K. Wright." The regular mail was not returned.
On June 14, 2016, the OAE sent a second letter to respondent at the same address, by certified mail, return receipt requested, and by regular mail, notifying her 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). As of June 23, 2016, the certified mail was unclaimed. The regular mail was not returned. Thus, the matter was certified to us on June 24, 2016 for the imposition of discipline.
On September 6, 2016, respondent filed a motion to vacate the default. For the reasons set forth below, we determine to deny the motion.
A respondent must meet a two-pronged test to succeed on a motion to vacate default. First, a respondent must offer a reasonable explanation for his or her failure to answer the ethics complaint. Second, a respondent must assert a meritorious defense to the underlying charges.
Respondent does not argue that she was not properly served with the complaint. Rather, she argues that her medical condition has prevented her from being able to properly respond. Further, respondent makes a temporal argument, claiming that this matter has been pending for eight years and has remained stagnant for two to three years.
In her motion, respondent explains that a serious lung infection has plagued her for some time, and that she also suffers from a previously undiagnosed auto-immune condition. Although she does not indicate whether she stopped practicing law during her illness, she argues, however, that the illness prevented her from doing much of anything in her own defense to the ethics charges against her. Significantly, respondent admits that she "began feeling better and working more in May 2016." The amended complaint was sent to respondent on May 20, 2016. Presumably, she was well enough to work at that time and, in our view, should have been well enough to file an answer to the complaint.
Respondent has been making similar medical claims since 2010, when this matter originally was before us. This is not to say that her claims are not legitimate; however, her communication regarding these maladies is always in the form of an eleventh-hour submission seeking additional time to respond. When that extension has been granted, respondent failed to follow through on her promise to participate.
Moreover, despite respondent's accusation that the OAE has delayed its investigation for eight years, allowing this claim to hang over her head, the responsibility for most of the delay in adjudicating this matter rests squarely on respondent. The record in this matter is replete with examples of respondent's failure to participate in the disciplinary process, until she is on the verge of losing her ability to practice law.
This matter is before us, as a default, for the third time in eight years. Thus, we are well aware of its procedural history. The first complaint was sent to respondent on June 28, 2010. On November 16, 2010, two days before the matter was scheduled for our consideration, respondent filed a motion to vacate the default based on medical reasons, which we granted. Thereafter, respondent failed to file a verified answer and the matter again proceeded by way of default. We unanimously voted to disbar respondent. She then moved before the Court to vacate our decision and remand the matter. On December 1, 2011, the Court granted that motion. Thereafter, respondent cooperated with the OAE's investigation of the underlying grievance.
In the intervening period, however, another unrelated complaint was filed against respondent. She again failed to file a verified answer to the complaint and the matter proceeded by way of default. On July 16, 2015, respondent was censured in that default matter, and ordered to repay $1,000 to her former client, Joyce Sheed. In re Wright, 222 N.J. 27 (2015).
In the instant matter, the original grievance was filed in 2008, and, as of the date of this writing, respondent still has not filed a verified answer to any of the complaints. In our view, and in the context of the procedural history of this matter, including the several missed opportunities to file an answer to the complaint, respondent's motion fails to satisfy the first prong of the test. Her explanations for not answering the complaint are stale and no longer reasonable.
Assuming arguendo, that respondent had satisfied the first prong of the test, her motion offers little in the way of meritorious defenses. In fact, she offers nothing regarding the funeral expenses or having failed to abide by the Court's order to submit monthly reports, both of which are the subject of count one of the complaint. Respondent does, however, address count two of the complaint, stating that she has paid Sheed in full.
On September 7, 2016, OAE Deputy Ethics Counsel Hillary Horton explained in an e-mail to Office of Board Counsel that Sheed had informed the OAE that she had received a check from respondent, on August 15, 2016. Presumably, the check cleared. Regardless, respondent's delay in complying with the Court's Order is still appropriately before us for the imposition of discipline. Specifically, on July 16, 2015, the Court ordered respondent to repay Sheed within sixty days of its Order, or by September 16, 2015. Her payment was eleven months late. Because respondent has offered no defenses to the allegations of count one of the complaint, and her late payment to Sheed cannot serve as a defense to the allegations of count two, respondent has failed to offer any meritorious defenses in satisfaction of the second prong of the test.
For all of these reasons, we determine to deny the motion to vacate the default.
We now turn to the facts alleged in the complaint. On December 15, 2008, Henry Bryant Smith filed a grievance against respondent, alleging that she violated her fiduciary duties as Power of Attorney (POA) for grievant's sister, Katherine A. Smith, Esq. (Smith), and that, in her capacity as POA, respondent misappropriated funds belonging to Smith's estate. On July 28, 2008, Smith executed a Living Will appointing both Diane Smith Bowman, Esquire, and respondent as her primary health care representatives. Also on July 28, 2008, Smith executed a Durable POA, which designated both Bowman and respondent as joint attorneys-in-fact. The Durable POA also appointed grievant as attorney-in-fact, if either Bowman or respondent were unwilling, or unable, to serve in that capacity.
In early November 2008, Smith took ill and was admitted to Jeanes Hospital in Philadelphia, Pennsylvania. On November 5, 2008, Smith suffered irreparable brain damage and fell into an irreversible coma. Three days later, on November 8, 2008, as POA, respondent and Bowman drafted and signed a Last Will and Testament on behalf of Smith. On the same day, Bowman relinquished her duties as Smith's POA, in favor of grievant's willingness to serve in that capacity for purposes of serving as a co-signatory, along with respondent, on certain bank accounts belonging to Smith at Bank of America.
On November 9, 2008, Smith died from her illness at Jeanes Hospital. At the time of Smith's death, respondent was a signatory as POA on an interest-bearing checking account (account 9314) in Smith's name at Bank of America. Further, both respondent and grievant were cosignatories on a new joint checking account in Smith's name at Bank of America (account 7941), which contained proceeds previously held in Smith's money market, regular savings, and seven-month CD accounts.
Grievant and respondent had opened account 7941, on November 7, 2008, with two deposits totaling $10,079.85. The monies in the joint account were exclusively for Smith's final expenses. Subsequent to its opening, the following disbursements were made from account 7941:
| DATE | CHECK NO. | PAYABLE TO | AMOUNT |
|---|---|---|---|
| 11/07/08 | 91 | Angela Braxton | $500 |
| 11/12/08 | 7941 | Cash | $1,500 |
| 11/17/08 | ATM Withdrawal | $20 | |
| TOTAL |
The OAE acknowledges that there is insufficient proof to establish that respondent withdrew $1,500 cash from account 7941.
On November 18, 2008, as a result of respondent's failure to account to grievant for the "cash" disbursements from account 7941, grievant withdrew $7,694.98, the balance of funds remaining in that account. With those funds, he opened a new checking account at Bank of America (account 1890) in his name only. Grievant also deposited $10,655.10 from Smith's CD account into the new account, for a combined total deposit of $18,350.08. From account 1890, grievant issued the following checks in payment of expenses in connection with Smith's funeral:
| DATE | CHECK NO. | PAYEE/AMOUNT |
|---|---|---|
| 11/23/08 | 0091 | Woody's Home for Services $3,961 |
| 11/24/08 | 0092 | Beckett Brown Funeral Home, Inc.$2,665 |
| 12/05/08 | 1004 | Tabernacle Baptist Church $250 |
| 12/30/08 | 1005 | Beverly L. Cotton, CFSP- Casket$3,000 |
| TOTAL | $9,876.50 |
Grievant alleged, however, that respondent misappropriated approximately $5,400 of Smith's funds from account 9314, and an additional $2,020 from account 7941, totaling $7,420. The OAE's investigation revealed that respondent disbursed three checks from account 9314, payable to "Cash." The checks were endorsed by respondent and are as follows:
| DATE | CHECK NO. | PAYABLE TO | AMOUNT |
|---|---|---|---|
| 11/21/08 | 5027 | CASH | $4,000 |
| 11/24/08 | 5028 | CASH | $1,000 |
| 12/08/08 | 5037 | CASH | $400 |
| TOTAL FROM ACCOUNT: | $5,400 |
Despite respondent's representations that the disbursements were for Smith's final expenses, she did not provide the OAE with a full and complete accounting of the cash disbursements from the interest-bearing account. The OAE, therefore, filed an ethics complaint charging respondent with the dishonest use of fiduciary funds, and failure to cooperate, in violation of RPC 8.4(c) and RPC 8.1(b). On May 19, 2011, the matter came before us on a certification of default filed by the OAE, pursuant to R. 1:20-4(f) (DRB 11-063). On August 10, 2011, we found that the facts recited in the complaint supported the charges of unethical conduct and recommended respondent's disbarment.
On October 5, 2011, the Court denied the OAE's motion for respondent's temporary suspension. That Order provided, however, that "pending the further Order of the Court, respondent shall practice law under the supervision of a practicing attorney approved by the Office of Attorney Ethics." Subsequently, on November 29, 2011, the Court granted respondent's motion to vacate the default in DRB 11-063. Our decision was vacated and the matter was remanded for respondent to file a verified answer to the formal ethics complaint, pursuant to R. l:20-4(e), and, thereafter, for a hearing or other proceedings as appropriate. The Court also ordered that "[r]espondent shall continue to be supervised by a practicing attorney approved by the [OAE], shall continue to have all disbursements from her attorney trust accounts co-signed by a cosignatory approved by the [OAE], and shall not serve as a fiduciary in any matter, as Ordered by the Court on October 5, 2011."
In a series of submissions to the OAE following the Court's remand, respondent provided documentation accounting for numerous expenses that she paid in connection with Smith's funeral, repast, and post-repast gathering. Respondent has acknowledged to the OAE the total amount of cash withdrawn from both bank accounts.
Specifically, respondent provided the OAE with an itemized list of food, beverages, and supplies that she purchased for the repast gathering that took place at her home; an itemized list of the materials she purchased for the funeral service repast, including supplies and services associated with mounting the photo displays, thank you notes, and a guest book; and an itemized list of the wig and the clothing in which Smith was buried. Respondent received cash reimbursement for the following expenses:
| Amount | Nature of Expense |
|---|---|
| $20 | ATM withdrawal from account #7941 to activate ATMcard associated with account. Respondent used fundsto purchase gas for car travel to prepare forfuneral, repast, and post-repast gathering. |
| $2,949.30 | Carlucci's Restaurant |
| $100 | Gertrude Evans — organist at funeral service |
| $100 | Reverend Denise Kennedy — co-officiant at funeralservice |
| $250 | Tabernacle Baptist Church — fee for use of churchfor funeral services |
| $445 | LGR Group — programs for funeral service |
| $680 | Food, beverages, and supplies for post-repastgathering |
| $413.21 | Staples — supplies for display of framed photos andphoto collages, thank you notes, guest book |
| $105 | Clothing and wig for Smith's burial |
| $45 | Payment to Smith's housekeeper, Yulita, for servicesrendered to clean and set up respondent's home forpost-repast gathering |
| Total = $5,107.51 |
Respondent provided the OAE with receipts for all of the above expenses, except for the sums paid to Gertrude Evans, the Tabernacle Baptist Church, and the LGR Group. The complaint acknowledged, however, that respondent had actually paid those expenses, notwithstanding the absence of receipts for them.
Respondent also told the OAE that she had paid $50 to $100 to the husband of Smith's housekeeper (Yulita) for transporting and setting up photo collages at the funeral service and repast, and various other tasks associated with the funeral and burial. Respondent did not provide the OAE with any receipts or other proof of payment for this expense. Respondent further acknowledged to the OAE that $257.49 to $307.49 in cash was withdrawn from Smith's accounts that has not been accounted for, which she believes was used to pay for other miscellaneous expenses incurred in connection with Smith's funeral, repast, and post-repast gathering.
Despite her cooperation with the OAE following the remand Order, respondent failed to comply with the Court's October 5, 2011 Order. Also on October 5, 2011, the OAE sent a letter to respondent's then counsel, explaining that respondent was required to file Attorney's Monthly Case Listings Reports with her supervising attorney, and that her supervisor was required to file Supervisor's Quarterly Reports with the OAE. The OAE also suggested that respondent closely review R. 1:20-18 (the Rule addressing supervision of disciplined attorneys). On October 31, 2011, the OAE sent a similar letter to respondent's supervising attorney, Katherine Wade.
On February 1, May 1, and October 28, 2013, the OAE notified Wade that her Supervisor's Reports for the prior quarters were past due. Similarly, the following year, on February 3, May 6, August 1, August 18, and October 27, 2014, the OAE informed Wade that her Supervisor's Reports for the prior quarters were past due. Likewise, on February 6 and March 3, 2015, the OAE reminded Wade that her Supervisor's Report for the previous quarter was past due. Three days later, on March 6, 2015, the OAE told Wade that, although she had provided the OAE with the October through December 2014 Attorney's Monthly Case Listing Reports, she had submitted neither a certification for the October report nor a Supervisor's Report and certification. Finally, on October 26, 2015, the OAE informed Wade that her Supervisor's Report for the prior quarter was past due.
On February 12, 2016, Wade informed the OAE that she had reached out to respondent on numerous occasions, but had not been able to get in touch with her. On March 31, 2016, respondent faxed a letter to the OAE, indicating that she had been seriously ill for some time; she was beginning to feel better and her condition was improving; and she would get the logs to her supervising attorney immediately. Respondent also submitted two medical reports from her doctor.
On April 4, 2016, the OAE notified respondent that her monthly reports for October 2015 through March 2016 must be provided to Wade prior to April 20, 2016, so that Wade could complete her Supervisor Quarterly Reports. As of May 2016, the filing date of the complaint, respondent had not submitted this documentation to the OAE.
On July 16, 2015, the Court ordered respondent to refund a $1,000 retainer to her client, Joyce Sheed, within sixty days after the filing date of the Court's Order. On July 17, 2015, the OAE requested that respondent provide proof of payment of the $1,000 to her client, by September 21, 2015. Subsequently, in an October 2, 2015 letter, the OAE cautioned respondent that, because she had failed to make the required payment or reply to the OAE's correspondence, the OAE would move for her temporary suspension. This letter was sent to respondent by regular and certified mail. Respondent appears to have signed the certified mail receipt.
On October 15, 2015, the OAE documented a telephone call between Assistant Ethics Counsel Jason D. Saunders and respondent in which respondent agreed to refund the $1,000 to Sheed, by October 23, 2015, and to provide the OAE with a copy of her cover letter to Sheed, along with a copy of the front and the back of the check. The OAE granted this "extension," based on respondent's assertion that illness had prevented her from responding sooner to the OAE's multiple inquiries and from complying with the July 16, 2015 Order. Thereafter, respondent provided the OAE with a copy of a letter, dated October 23, 2015, addressed to Sheed, in which respondent represented that she enclosed a check for $1,000. Respondent also provided to the OAE a copy of check #1080, payable to Sheed, for $1,000.
By letter dated December 7, 2015, sent to respondent by e-mail, regular mail, certified mail, and UPS overnight mail, the OAE informed respondent that Sheed had not received the check. The OAE, therefore, directed respondent to provide proof, in the form of a bank statement, that check #1080 had been negotiated. The OAE further instructed respondent that, if the check had not been negotiated, she was to provide the OAE with a certified check, payable to Sheed, no later than December 14, 2015. The signature on the certified mail receipt appears to belong to respondent. UPS Delivery Notification tracking revealed that the OAE's letter was delivered to respondent's porch.
As previously noted, on March 31, 2016, respondent faxed a letter to the OAE indicating that, although she had been seriously ill, she was feeling better and her condition was improving. In an April 4, 2016 letter, the OAE documented respondent's failure to reply to its December 7, 2015 letter and instructed her to provide proof of payment to Sheed by April 20, 2016. As of the date of the complaint, respondent had not submitted this documentation to the OAE.
* * *
The complaint alleges sufficient facts to support most of 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 admitted that she withdrew $5,465 in cash from Smith's accounts. After providing no information during the initial investigation of the underlying grievance, respondent finally provided documentation for all but $795 of the expenses she had incurred for Smith's funeral. She was unable, however, to provide support for $100 paid to Gertrude Evans, the organist at Smith's funeral, $250 paid to Tabernacle Baptist Church for the use of the church for the funeral, and $445 paid to LGR Group for funeral programs.
Based on the facts recited in the complaint, we are unable to conclude that respondent's inability to produce receipts constitutes a failure to safeguard funds. First, respondent had a POA, which authorized her to spend these funds on Smith's funeral. Second, the account, where some of these funds were held, was a joint account to which respondent was a signatory. The complaint acknowledged that respondent had incurred these expenses. At best, the complaint establishes only that respondent lacked receipts for three expenses related to the funeral that she was otherwise authorized to pay. Moreover, the payment to Tabernacle Church ($250), according to the complaint itself, was made by grievant from an account (1890) that only he controlled. Thus, based on the foregoing, it cannot be said that respondent failed to safeguard funds in respect of the $795 in expenses for which she was unable to provide documentary support.
The complaint identifies other unaccounted for funds. First, the OAE notes that check 7941 was written to cash, from account 7941, for $1,500. In its complaint, the OAE acknowledges, however, that it has insufficient proof to establish, by clear and convincing evidence, that respondent withdrew the money herself. Second, the OAE alleges that respondent asserted that she paid $50 to $100 to the husband of Smith's housekeeper for his work setting up the funeral, and that $257.49 to $307.49 in cash withdrawn from Smith's accounts has not been accounted for. Respondent told the OAE that this cash was used to pay for miscellaneous expenses incurred in connection with Smith's funeral. These allegations, although deemed admitted due to the default nature of this matter, still fall short of establishing a failure to safeguard funds. Therefore, we determine to dismiss the alleged violation of RPC 1.15(a) in its entirety.
Respondent has, however, committed other violations. Pursuant to the Court's October 5, 2011 Order, respondent was required to file attorney's monthly case listings reports with her supervising attorney, Wade. In turn, Wade was required to file Supervisor's Reports with the OAE on a quarterly basis. Respondent's repeated failure to provide timely monthly reports prevented Wade from timely submitting her required reports to the OAE. By disregarding the Court's Order, respondent violated RPC 3.4(c) and RPC 8.4(d). The OAE reminded respondent of her obligations and demanded her compliance with the Court's Order and the strictures of R. 1:20-18. Respondent ignored the OAE and, by her failure to respond to a lawful demand for information from a disciplinary authority in connection with a disciplinary matter, respondent violated RPC 8.1(b).
Finally, respondent failed to comply with the Court's Order of July 16, 2015, which required her to refund the full $1,000 fee that Sheed had paid her. As of the date of the certification of the record, respondent had not refunded that fee, a further violation of RPC 3.4(c) and RPC 8.4(d). Respondent's repeated failure to reply to the OAE's letters seeking confirmation that she had refunded the $1,000 to Sheed constitutes yet another violation of RPC 8.1(b). We are particularly concerned by respondent's representation to the OAE that she had paid Sheed and by her submission of a copy of the cover letter and check that she allegedly sent. Sheed, however, confirmed that she received no such payment from respondent. Although the complaint did not charge respondent with a violation of RPC 8.1(a) (false statement of material fact in connection with a disciplinary matter), we consider her misrepresentation in this respect as an aggravating factor.
As noted below, respondent has since satisfied her obligation to Sheed. --------
In sum, respondent has violated RPC 3.4(c), RPC 8.1(b), and RPC 8.4(d).
Attorneys who have failed to obey court orders have been reprimanded, even when the conduct was accompanied by other violations. See, e.g., In re Cerza, 220 N.J. 215 (2015) (attorney failed to obey a bankruptcy court's order compelling him to comply with a subpoena, which resulted in a default judgment against him; violations of RPC 3.4(c) and RPC 8.4(d); the attorney also violated RPC 1.15(b) in a related real estate transaction when he disbursed a $100 survey refund to the wrong party, failed to refund the difference between the estimated recording costs and the actual recording costs, and failed to disburse the mortgage pay-off overpayment, which had been returned to him and held in his trust account for more than five years after the closing; prior admonition for recordkeeping violations and failure to promptly satisfy tax liens in connection with two client matters, even though he had escrowed funds for that purpose); In re Gellene, 203 N.J. 443 (2010) (attorney found guilty of conduct prejudicial to the administration of justice and knowingly disobeying an obligation under the rules of a tribunal for failing to appear on the return date of an appellate court's order to show cause and failing to notify the court that he would not appear; the attorney was also guilty of gross neglect, pattern of neglect, lack of diligence, and failure to communicate with clients; mitigating factors considered were the attorney's financial problems, his battle with depression and significant family problems; his ethics history included two private reprimands and an admonition); and In re Geller, 177 N.J. 505 (2003) (attorney failed to comply with court orders (at times defiantly) and with the disciplinary special master's direction not to contact a judge; the attorney also filed baseless motions accusing judges of bias against him, failed to expedite litigation and to treat with courtesy judges, his adversary, the opposing party, an unrelated litigant, and a court-appointed custody evaluator, used means intended to delay, embarrass or burden third parties, made serious charges against two judges without any reasonable basis, made unprofessional and demeaning remarks toward the other party and opposing counsel, and made a discriminatory remark about a judge; in mitigation, we considered that the attorney's conduct occurred in the course of his own child custody case).
Ordinarily, admonitions are imposed for failure to cooperate with disciplinary authorities, if the attorney does not have an ethics history. See, e.g., In the Matter of Martin A. Gleason, DRB 14-139 (February 3, 2015) (attorney did not file an answer to the formal ethics complaint and ignored the district ethics committee investigator's multiple attempts to obtain a copy of his client's file, a violation of RPC 8.1(b); the attorney also failed to inform his client that a planning board had dismissed his land use application, a violation of RPC 1.4(b); we considered, in mitigation, the attorney's acceptance of full responsibility for the dismissal of his client's applications, the fact that he had refunded the entire legal fee to the client, and that he had erroneously believed that his reply to the grievance and a subsequent letter to the district ethics committee secretary, admitting the allegations of the complaint, satisfied his obligation to file a formal answer).
If the attorney has been disciplined before, but the attorney's ethics record is not serious, then reprimands have been imposed. See, e.g., In re Larkins, 217 N.J. 220 (2014) (default; attorney did not reply to the ethics investigator's attempts to obtain information about the grievance and failed to file an answer to the formal ethics complaint; although we noted that a single violation of RPC 8.1(b), in a default matter, does not necessitate enhancement of the discipline from an admonition to a reprimand, a reprimand was imposed based on a prior admonition and, more significantly, a 2013 censure, also in a default matter, in which the attorney had failed to cooperate with an ethics investigation); In re Wood, 175 N.J. 586 (2003) (attorney failed to cooperate with disciplinary authorities; prior admonition for similar conduct); In re DeBosh. 174 N.J. 336 (2002) (failure to cooperate with disciplinary authorities; prior three-month suspension); and In re Williamson, 152 N.J. 489 (1998) (attorney failed to cooperate with disciplinary authorities; prior private reprimand for failure to carry out a contract of employment with a client in a matrimonial matter and failure to surrender the client's file to a new attorney).
Similar to the attorney in Cerza, respondent has violated RPC 3.4(c) and RPC 8.4(d). Cerza had the additional violation of RPC 1.15(b) which is absent here, but respondent has the added violation of RPC 8.1(b). Because of her ethics history, the RPC 8.1(b) violation enhances the discipline to a censure.
At a minimum, based on the foregoing, the discipline for the totality of respondent's unethical conduct would be a censure. There are, however, aggravating factors to consider. First, the default nature of the matter requires an enhancement of discipline. Respondent's prior disciplinary matters also proceeded by way of default, thus displaying a pattern of disdain for the disciplinary system. Second, respondent made an egregious misrepresentation to the OAE when she sent a letter enclosing a copy of a check payable to Sheed. In the letter, respondent claimed that she had sent the check to Sheed. It was not until August 15, 2016, however, that Sheed confirmed that she had received that check. Respondent's failure to refund these monies in a timely manner continued to cause economic harm to her former client.
It is worth noting, in mitigation, that respondent seems to be ill. However, without more detail about her health issues and a specific timeline relating them to her ability to cooperate with the OAE, this possible mitigation is not sufficient to reduce what we consider to be the appropriate quantum of discipline for her misconduct.
In light of respondent's ethics history, the default status of this matter, and her serious misrepresentation to the OAE, we determine to impose a six-month suspension.
Member Clark 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: February 23, 2017 Disposition: Six-month suspension
| Members | Six-monthsuspension | Recused | Did not participate |
|---|---|---|---|
| Frost | X | ||
| Baugh | X | ||
| Boyer | X | ||
| Clark | X | ||
| Gallipoli | X | ||
| Hoberman | X | ||
| Rivera | X | ||
| Singer | X | ||
| Zmirich | X | ||
| Total: | 8 | 1 |
/s/_________
Ellen A. Brodsky
Chief Counsel