Opinion
Docket No. DRB 12-254
01-08-2013
IN THE MATTER OF ADAM KENNETH BLOCK AN ATTORNEY AT LAW
Disciplinary Review Board District Docket No. IIB-2011-0025E 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 District IIB Ethics Committee (DEC), pursuant to 1:20-4(f)(2). The formal ethics complaint charged respondent with having violated RPC 5.5(a) (practicing while ineligible). For the reasons stated below, we determine to impose a reprimand on respondent for his violation of this rule.
Respondent was admitted to the New Jersey bar in 1993. The following year, he was admitted to the New York bar. He has no disciplinary history.
Since September 27, 2007, respondent has been on the Supreme Court's list of ineligible attorneys due to nonpayment of the annual attorney assessment to the New Jersey Lawyers' Fund for Client Protection (CPF). Previously, he was on the list from September 26, 2005 until June 12, 2006.
Service of process was proper. On May 16, 2012, the DEC sent a copy of the formal ethics complaint to respondent at 310 49th Street, Union City, New Jersey 07087, by regular and certified mail, return receipt requested. Respondent signed for the certified letter on May 17, 2012.
On June 8, 2012, the DEC sent a letter to respondent at the same address, by regular mail. The letter directed respondent to file an answer within five days and informed him that, if he failed to do so, the DEC would certify the record directly to us for the imposition of sanction. The letter was not returned to the DEC.
As of June 27, 2012, respondent had not filed an answer to the complaint. Accordingly, on that date, the DEC certified this matter to us as a default.
According to the single-count complaint, respondent maintained various associate positions in several law firms, from 1995 through 2010, except for the period between 2002 and 2004, and 2009, when he was not actively practicing law in New Jersey, but was active in New York.
As stated previously, respondent was placed on the ineligible list, for a second time, in September 2007. According to the complaint, respondent acknowledged having received notifications from the CPF about the payment of the annual assessment.
In 2009, respondent went through an acrimonious divorce. Shortly thereafter, he became unemployed. In that same year, he joined his father in the practice of law. According to the complaint, respondent forwarded the CPF notifications to his father, who stated that he would pay the fees "in 2009 and 2010."
Sometime in 2010, respondent began to accept small municipal court matters, including a case in the West New York, New Jersey, municipal court, involving the suspension of the client's driving privileges. For about a year, respondent "repeatedly failed to appear in court, requested unreasonable adjournments, failed to file the appropriate paperwork with the Court, and ultimately failed to comply with various Court orders." His behavior prompted the judge to contact the Board of Bar Examiners to determine the status of respondent's license to practice law. The judge learned that respondent's license had been "suspended." As a result, the judge referred the matter to the Office of Attorney Ethics.
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).
RPC 5.5(a) prohibits a lawyer from practicing law in a jurisdiction "where doing so violates the regulation of the legal profession in that jurisdiction." During the year 2010, respondent represented a client in the West New York municipal court, despite the fact that he had been ineligible to practice law since 2007. Respondent's conduct violated RPC 5.5(a).
There remains for determination the quantum of discipline to be imposed for respondent's violation of RPC 5.5(a)(1). Practicing law while ineligible, without more, is generally met with an admonition, if the attorney is unaware of the ineligibility or advances compelling mitigating factors. See, e.g., In the Matter of Maria M. Dias, DRB 08-138 (July 29, 2008) (although attorney knew of her ineligibility, compelling mitigation warranted only an admonition; in an interview with the OAE, the attorney admitted that, while ineligible to practice law, she had appeared for other attorneys forty-eight times on a part-time, per diem basis, and in two of her own matters; the attorney was unable to afford the payment of the annual attorney assessment because of her status as a single mother of two young children); In the Matter of William C. Brummel, DRB 06-031 (March 21, 2006) (attorney practiced law during a four-month period of ineligibility; the attorney was unaware of his ineligible status); and In the Matter of Richard J. Cohen, DRB 04-209 (July 16, 2004) (attorney practiced law during nineteen-month ineligibility; the attorney did not know he was ineligible).
If the attorney is aware of the ineligibility, a reprimand is usually imposed. See, e.g., In re Kaniper, 192 N.J. 40 (2007) (attorney practiced law during two periods of ineligibility; although the attorney's employer gave her a check for the annual attorney assessment, she negotiated the check instead of mailing it to the CPF; later, her personal check to the CPF was returned for insufficient funds; the attorney's excuses that she had not received the CPF's letters about her ineligibility were deemed improbable and viewed as an aggravating factor), and In re Perrella, 179 N.J. 499 (2004) (attorney advised his client that he was on the inactive list and then practiced law; the attorney filed pleadings, engaged in discovery, appeared in court, and used letterhead indicating that he was a member in good standing of the Pennsylvania bar).
Respondent was aware of his ineligibility, when he joined his father's law practice in 2009, as he had been receiving notifications from the CPF and he had informed his father of the ineligibility. Respondent's father obviously failed to follow through on his promise to pay respondent's CPF fees in 2009 and 2 010. Nevertheless, there is nothing within the four corners of the complaint that clearly and convincingly establishes that, when respondent resumed the practice of law in 2010, he knew that his father had not brought his CPF fees current and that, therefore, he was still on the ineligible list. Thus, an admonition is the appropriate measure of discipline for respondent's ethics infraction.
However, because respondent has defaulted in this matter, we determine to enhance the discipline to a reprimand. In re Kivler, 193 N.J. 332, 342 (2008) ("a respondent's default or failure to cooperate with the investigative authorities operates as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced").
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
Louis Pashman, Chair
By: /s/_________
Julianne K. DeCore
Chief Counsel
VOTING RECORD
Disposition: Reprimand
| Members | Disbar | Suspension | Reprimand | Dismiss | Disqualified | Did not participate |
| Pashman | X | |||||
| Frost | X | |||||
| Baugh | X | |||||
| Clark | X | |||||
| Doremus | X | |||||
| Gallipoli | X | |||||
| Wissinger | X | |||||
| Yamner | X | |||||
| Zmirich | X | |||||
| Total: | 9 |
/s/_________
Julianne K. DeCore
Chief Counsel