Opinion
Docket No. DRB 19-372 Docket No. DRB 19-452
08-03-2020
In the Matters of Adam Luke Brent An Attorney at Law
Disciplinary Review Board
District Docket Nos. IV-2018-0036E; IV-2018-0047E; IV-2018-0050E; and IV-2019-0018E Decision
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
These matters were before us on certifications of the record filed by the District IV Ethics Committee (DEC), pursuant to R. 1:20-4(f). The formal ethics complaints charged respondent with one count of RPC 1.1(a) (gross neglect); one count of RPC 1.1(b) (pattern of neglect); three counts of RPC 1.3 (lack of diligence); one count of RPC 1.4(a) (failure to inform a client of how, when, and where the client may communicate with the lawyer); three counts of RPC 1.4(b) (failure to keep the client reasonably informed about a matter and to reply to reasonable requests for information); one count of RPC 1.4(c) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); one count of RPC 1.5(a) (unreasonable fee); one count of RPC 1.5(b) (failure to set forth in writing the basis or rate of the fee); one count of RPC 7.1(a)(1) (false communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement); three counts of RPC 8.1(b) (failure to cooperate with disciplinary authorities); and two counts of RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).
For the reasons set forth below, we determine to impose a two-year suspension, with a condition.
Respondent was admitted to the New Jersey and Pennsylvania bars in 2003. At the relevant times, he maintained an office for the practice of law in Franklinville.
On March 6, 2019, the Court temporarily suspended respondent for failure to cooperate with disciplinary authorities. In re Brent, 237 N.J. 90 (2019). On October 21, 2019, the Court again temporarily suspended respondent, this time for failure to comply with a fee arbitration determination. In re Brent, 239 N.J. 597 (2019).
On December 5, 2019, the Court suspended respondent for three months for misconduct including gross neglect; lack of diligence; failure to communicate with the client; failure to set forth in writing the basis or rate of a legal fee; failure to protect the client's interest upon termination of the representation; and misrepresentations to the client about fictitious settlement offers. In that case, respondent had provided his clients with two fabricated documents: a general release that falsely stated that the matter had settled for $140,000, and a bogus release of a deed. In re Brent, 240 N.J. 222 (2019).
On May 21, 2020, the Court suspended respondent for one year for a myriad of misconduct in numerous client matters. In re Brent, ___ N.J. ___ (2020). In that case, respondent practiced law while ineligible in dozens of client matters, during five discrete ineligibility periods spanning from 2008 to 2014; he also served in matters as a municipal prosecutor and municipal public defender for numerous court sessions during his ineligibility periods. Respondent grossly neglected client matters; failed to communicate with clients; failed to set forth in writing the basis or rate of a legal fee; failed to return client files and unearned fees; made misleading statements about his legal services; made false statements to disciplinary authorities; failed to cooperate with disciplinary authorities; and made numerous misrepresentations to his clients. In the Matter of Adam Luke Brent, DRB 19-208 (January 15, 2020).
Service of process was proper. On February 15, 2019, the DEC sent a copy of the formal ethics complaint in District Docket No. IV-2018-0036E, by certified and regular mail, to respondent's office address, to a Franklinville, New Jersey post office box, and to his home address. The United States Postal Service returned the regular and certified mail sent to the office address and post office box, marked "Return to sender - vacant - unable to forward." The certified and regular mail sent to the home address was returned marked "Moved left no address - unable to forward - return to sender."
Thereafter, the Office of Attorney Ethics (OAE) served respondent with the complaint by publication, in accordance with R. 1:20-4(d): on March 27, 2019, in the South Jersey Times, and on April 1, 2019, in the New Jersey Law Journal. Those notices informed respondent that, unless he filed an answer to the complaint within twenty-one days of the date of publication of the notices, his failure to answer would be deemed an admission of the allegations of the complaint.
The OAE also served respondent with the complaint under Docket No. IV-2018-0050E and an amended complaint in Docket No. IV-2018-0047E, above, by publication, in accordance with R. 1:20-4(d): on June 18, 2019, in the South Jersey Times, and on July 29, 2019, in the New Jersey Law Journal, stating that a formal ethics complaint had been filed against respondent. Those notices likewise informed respondent that, unless he filed an answer to the complaint within twenty-one days of the date of publication of the notices, his failure to answer would be deemed an admission of the allegations of the complaint.
In respect of the complaint under Docket No. IV-2019-0018E, on September 19, 2019, the DEC sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's home address of record. The certified letter was delivered, the return receipt having been signed on September 26, 2019, but the signature is illegible. The letter sent by regular mail was not returned.
On November 7, 2019, the DEC sent a letter to respondent, by regular mail, to his home address, informing him that, unless he filed 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 record would be certified to us for the imposition of discipline, and the complaint would be deemed amended to charge a willful violation of RPC 8.1(b). The regular mail was not returned.
As of September 23 and November 19, 2019, respondent had not filed answers to the complaints, and the time within which he was required to do so had expired. Accordingly, the DEC certified these matters as defaults on those respective dates.
We now turn to the allegations of the complaints. The Eggleston Matter - District Docket No. IV-2018-0036E
On a date not set forth in the record, Demurri Eggleston retained respondent to represent him in a municipal court matter. Although respondent arrived late for court, failed to communicate with Eggleston, and failed to perform the legal services for which he was retained, the complaint did not charge respondent with ethics infractions for that alleged misconduct. On May 24, 2018, Eggleston filed an ethics grievance against respondent.
On August 14, 2018, the DEC sent a letter and a copy of the grievance, by regular mail, to respondent's office address of record, former office address, and home address. The DEC requested respondent's written reply to the grievance and production of his Eggleston client file. The regular mail sent to those addresses was not returned.
On August 23, 2018, the DEC sent a second letter and a copy of the grievance, by certified and regular mail, to respondent's office addresses and home address. The DEC's letter reiterated respondent's obligation to provide a written reply to the grievance. Although the complaint is unclear whether the certified mail was returned unclaimed, the regular mail was not returned.
On September 25, 2018, the DEC placed a telephone call to respondent at his telephone number of record, but his voicemail box was full.
The complaint charged a sole violation of RPC 8.1(b) for respondent's failure to respond to a lawful demand for information from a disciplinary authority. The Harmon Matter - District Docket No. IV-2018-0047E
In 2015, Brittany Harmon retained respondent to represent her incarcerated brother in a petition for post-conviction relief (PCR) based on a claim of ineffective assistance of counsel against his trial attorney.
Also referred to as Bethany Harmon in the record.
Harmon's only meeting with respondent took place in a Starbucks coffeehouse, after respondent had postponed three previously-scheduled meetings. Thereafter, respondent failed to file an application for PCR. According to the complaint, respondent's failure to investigate, prepare, and file an application for PCR constituted a lack of diligence, in violation of RPC 1.3. The complaint did not charge respondent with gross neglect (RPC 1.1(a)).
In respect of communications with the client, respondent provided his cell phone number to Harmon and her family with instructions to text him at that number. However, he failed to reply to most text messages, he failed to answer the clients' telephone calls placed to his cell phone, and his voicemail box was always full. Harmon's family members consistently stated that they were constantly trying to reach respondent, but either received no reply or received "excuse laden texts" in return. Over the course of nine months, respondent met with Harmon's brother once or twice, and never replied to requests for status updates in the matter. Furthermore, visiting respondent's office "was not encouraged and appears to have been futile," for which the complaint charged respondent with violations of RPC 1.4(a) and (b).
Respondent misrepresented to Harmon and her family that he had filed the PCR application and that the court had scheduled the matter for a hearing. Further, respondent accepted a retainer, in an undisclosed amount, but failed to perform the legal services for which he was retained. The complaint, however, did not charge respondent with having made misrepresentations, in violation of RPC 8.4(c), or with failing to refund an unearned portion of a retainer, in violation of RPC 1.16(d).
On three occasions, between October 3, 2018 and January 25, 2019, the DEC sent respondent copies of the grievance with a letter requesting his written reply. The letters were sent to his office address and home address, by certified and regular mail. Although the certified mailings were returned "as never picked up," the regular mail was not returned. In addition, on October 11, 2018, the DEC placed a telephone call to respondent, but his voicemail box was full. For his failure to reply to lawful demands for information from a disciplinary authority, the complaint charged a violation of RPC 8.1(b). The Sammartino Matter - District Docket No. IV-2018-0050E
On a date not set forth in the record, Deni Sammartino retained respondent to file suit against the Gloucester County Department of Health and Human Services and Woolrich Township in respect of a septic system issue (the septic suit), and to represent her in a related foreclosure action. Although respondent had not regularly represented Sammartino, he failed to provide a writing setting forth the basis or rate of his fee for the matters. Accordingly, the complaint alleged a violation of RPC 1.5(b).
Sammartino had retained respondent before the expiration of the applicable statute of limitations, but respondent filed an untimely complaint in the septic system matter. Additionally, he failed to file a timely notice of tort claim; to retain an expert to assess the septic system; to prepare interrogatories for the defendants; to answer the interrogatories from the defendants; and to oppose defendants' motions, including a summary judgment motion, which was granted. The complaint alleged that the foreclosure action "was ignored completely" and charged respondent with violations of RPC 1.1(a) and (b) and RPC 1.3.
Additionally, respondent collected $6,000 in legal fees for the representation, performed only minimal work on the septic suit, and provided no legal services in the foreclosure matter, for which he was charged with collecting an unreasonable fee, in violation of RPC 1.5(a).
According to the complaint, respondent lied to Sammartino about several aspects of the representation. First, he claimed to have filed the septic suit when he had not yet done so. After he filed the complaint, he continued to lie about its status, despite his failure to take appropriate action in the case. Finally, he misled his client to believe that both matters were progressing and that he had obtained a settlement offer of $100,000 for the septic suit. Based on respondent's misrepresentations and lack of communication, the complaint charged respondent with having violated RPC 1.4(b) and (c); RPC 7.1(a)(1); and RPC 8.4(c).
Finally, on dates not set forth in the record, the DEC sent letters and a copy of the grievance to respondent, by regular and certified mail, to his office addresses of record and to his home address. Although respondent "did not sign for" any of the certified mail envelopes, none of the regular mail was returned. For respondent's failure to reply to the DEC's lawful demands for information about the ethics matter, the complaint charged a violation of RPC 8.1(b). The Orduno-Luna Matter - District Docket No. IV-2019-0018E
On May 23, 2017, Francisco Orduno-Luna retained respondent to defend him against municipal court traffic charges in the Township of Hamilton, Atlantic County, and in a Court of Common Pleas matter in Philadelphia, Pennsylvania. Respondent provided a written fee agreement for the representation and Orduno-Luna paid a $5,000 retainer.
Aware that the municipal court matter was in bench warrant status, respondent sent his client copies of letters dated September 24 and November 22, 2016, and January 25, 2017, purporting to establish respondent's communications with the municipal court. Contrary to those letters and a document from respondent purportedly seeking to suppress evidence in the municipal court matter, respondent had not entered his appearance for Orduno-Luna in the case and had taken no action to protect his client against the charges against him. Orduno-Luna did not learn of respondent's inaction until 2019, when he was arrested on an outstanding bench warrant. Thereafter, he retained new counsel to resolve the matter.
Court personnel in the Township of Hamilton checked its records and found no letters from respondent.
The complaint is otherwise silent about the Philadelphia, Pennsylvania matter.
Based on these facts, the complaint charged respondent with violations of RPC 1.3, RPC 1.4(b), and RPC 8.4(c).
* * *
We find that the facts recited in the complaints support some of the charges of unethical conduct. Respondent's failure to file answers to the complaints are deemed admissions that the allegations are true and that they provide a sufficient basis for the imposition of discipline. R. 1:20-4(f)(1). Notwithstanding that Rule, each charge in the complaint must be supported by sufficient facts for us to determine that unethical conduct has occurred.
In the Eggleston matter, on a date not set forth in the record, the client retained respondent for representation in a municipal court matter. Although respondent failed to perform the legal services for which Eggleston had retained him and failed to communicate with the client, the complaint did not charge respondent with gross neglect, lack of diligence, or failure to communicate with the client. Therefore, we make no findings in respect of those potential violations.
Rather, the complaint charged a sole violation of RPC 8.1(b). After Eggleston filed a grievance in May 2018, the DEC sent respondent letters on August 14 and 23, 2018, with a copy of the grievance and a request for his written reply to the grievance. Respondent did not reply to that correspondence. On September 25, 2018, the DEC attempted to reach respondent via telephone, but his voicemail box was full. We, thus, find that respondent violated RPC 8.1(b).
In 2015, in the Harmon matter, Harmon retained respondent to file a PCR application for her incarcerated brother. Although respondent met with Harmon's brother once or twice, in early 2015, he performed little or no legal services, and failed to file the PCR application. Respondent's failure to advance the PCR claim constituted a lack of diligence, in violation of RPC 1.3. Because the complaint did not charge gross neglect, we make no finding in that regard.
Respondent met with Harmon just once during the representation. Thereafter, he failed to answer her calls placed to his cell phone, after he had given that phone number to Harmon for ease of communication. Because his voicemail box was full, Harmon could not leave messages for him. Although respondent instructed Harmon to text him for information about the matter, he rarely replied to her text messages. Over a nine-month period of representation, respondent failed to reply to requests for status updates. Additionally, respondent apparently discouraged personal meetings at his office location, further frustrating Harmon's ability to reach him. Respondent, thus, violated RPC 1.4(b). Although the complaint also charged a violation of RPC 1.4(a), which addresses prospective clients, Harmon and the brother were present, not prospective clients. Therefore, we dismiss the RPC 1.4(a) charge as inapplicable.
Additionally, between October 2018 and January 2019, the DEC sent respondent the grievance on three occasions with letters requesting his reply within a date certain. Respondent ignored those requests for information from a disciplinary authority, in violation of RPC 8.1(b).
Respondent also misrepresented the status of the case to Harmon, claiming to have filed an application for PCR and telling her that the court had scheduled her brother's case for a hearing. Because, however, the complaint failed to charge respondent with a violation of RPC 8.4(c), we make no finding in that regard.
In the Sammartino matter, the client retained respondent to file a lawsuit against Gloucester County and Woolrich Township in respect of a septic system issue, and to represent her in a related foreclosure matter. Because respondent had not regularly represented Sammartino, he was required to provide the client with a writing setting forth the basis or rate of his legal fee. Respondent failed to do so, a violation of RPC 1.5(b).
Thereafter, respondent filed a complaint, but it was out of time. He failed to file timely tort claim notices; to retain an expert to inspect the septic issue; to prepare interrogatories for the defendants; and to answer the defendants' interrogatories. Thereafter, respondent failed to oppose the defendants' summary judgment motion, which resulted in the entry of a summary judgment order. Respondent also completely ignored the foreclosure matter. For his total failure to protect his client's claims, respondent is guilty of numerous instances of gross neglect and lack of diligence, multiple violations of RPC 1.1(a) and RPC 1.3, respectively.
The complaint charged respondent with two aspects of failing to communicate with the client (RPC 1.4(b) and (c)), and the facts of those allegations are intertwined with the allegations that respondent lied to his client in the Sammartino matter. We determine that respondent lied to Sammartino about the case, claiming to have filed suit before he had done so, and misrepresenting that the defendants had offered $100,000 to settle the septic suit and that the foreclosure matter was proceeding apace. Respondent's lies to the client violated RPC 8.4(c). In our view, respondent communicated with Sammartino, but told lies when he did so, leaving the client without sufficient information to make informed decisions about the representation, in violation of RPC 1.4(c). For lack of clear and convincing evidence that respondent failed to reply to requests for information from the client, we dismiss the RPC 1.4(b) charge.
The complaint charged respondent with having collected an unreasonable fee of $6,000 for the representation. RPC 1.5(a) contains eight factors that aid in establishing the reasonableness of an attorney's fee. The complaint, however, contains no reference to those factors or whether the $6,000 fee would have been reasonable, had respondent performed the legal services for which he had been retained. Thus, we dismiss the RPC 1.5(a) charge. We note that respondent might have been required to refund the unearned portion of his fee, as RPC 1.16(d) requires. Because the complaint did not charge him with having violated that Rule, however, we make no finding in that regard.
To the extent that respondent's misrepresentations about the status of the case are alleged to have constituted false and misleading communications regarding his legal services, the complaint does not contain facts to support such a charge. Moreover, the RPC 8.4(c) charges adequately addresses the misrepresentations that appear to form the basis of the charge. For these reasons, we dismiss the RPC 7.1(a)(1) charge.
Finally, respondent failed to reply to the grievance, despite the DEC's lawful demands for information about the matter, a violation of RPC 8.1(b).
In the Orduno-Luna matter, in May 2017, the client retained respondent for representation in a municipal court matter in the Township of Hamilton, Atlantic County and for a Court of Common Pleas matter of unknown type in Philadelphia, Pennsylvania. The complaint did not describe either case, other than to state that, in the municipal court matter, a bench warrant had been issued before Francisco retained respondent. Respondent failed to memorialize the basis or rate of his fee for the representation, for which Francisco paid respondent a $5,000 retainer.
Between September 24, 2016 and January 25, 2017, respondent sent Francisco copies of three letters that respondent purportedly had sent to the court, to convey the impression that he had been in communication with the court about Francisco's case. However, those letters and a document seeking to suppress evidence in the case were misleading, inasmuch as respondent had neither entered his appearance in the case nor taken any action to protect his client against the charges. Moreover, the court had no record of the letters that respondent purportedly sent in the matter. In 2019, when Francisco was arrested on the still outstanding bench warrant, he learned of respondent's inaction and retained new counsel.
In respect of the RPC 1.3 charge, the above facts in the municipal court matter are minimal, but sufficiently support the lack of diligence charge, where respondent accepted the case (and a $5,000 fee), but failed to act to resolve the case. We find that respondent lacked diligence in the municipal court matter, in violation of RPC 1.3.
In respect of the Philadelphia, Pennsylvania matter, the complaint is devoid of facts to support any ethics infractions. Therefore, we make no findings in respect of that matter.
The complaint also charged respondent with a violation of RPC 1.4 and contains facts establishing a complete failure to communicate the status of the case to Orduno-Luna. In fact, after hiring respondent in 2017, Orduno-Luna was unaware, until his 2019 arrest, that the matter remained unresolved. Thus, we find that respondent's failure to provide information sufficient for Orduno-Luna to make informed decisions about the representation violated RPC 1.4(c).
Respondent's letters to Orduno-Luna were designed - at a minimum - to mislead him that the case was progressing smoothly. Although the letters may have been complete fabrications, the issue of fabricating court documents was not raised in the complaint. Accordingly, we do not find that he fabricated court documents. Nevertheless, for respondent's purposeful misrepresentations in the letters sent to Orduno-Luna, we find him guilty of having violated RPC 8.4(c).
Lastly, in respect of the pattern of neglect charge, we find that respondent is guilty of neglect in the Harmon, Sammartino, and Orduno-Luna matters. Therefore, we find that he engaged in a pattern of neglect, in violation of RPC 1.1(b).
In summary, we find that respondent is guilty of gross neglect in Sammartino; a pattern of neglect, lack of diligence, and failure to communicate with the clients in Harmon, Sammartino, and Orduno-Luna; failure to set forth in writing the basis or rate of the fee in Sammartino; failure to cooperate with disciplinary authorities in Eggleston, Sammartino, and Harmon; and misrepresentations to the client in Sammartino and Orduno-Luna. We dismiss the following charges: in Harmon, RPC 1.4(a); and, in Sammartino, RPC 1.4(b), RPC 1.5(a), and RPC 7.1(a)(1). The sole issue left for us to determine is the appropriate quantum of discipline for respondent's misconduct.
Where an attorney engages in a pattern of neglect, a reprimand ordinarily ensues. See, e.g., In re Gellene, 203 N.J. 443 (2010) (attorney guilty of gross neglect, pattern of neglect, and lack of diligence for failing to timely file three appellate briefs); In re Weiss, 173 N.J. 323 (2002) (attorney engaged in gross neglect, pattern of neglect, and lack of diligence); In re Balint, 170 N.J. 198 (2001) (in three client matters, attorney engaged in gross neglect, pattern of neglect, lack of diligence, failure to communicate with clients, and failure to expedite litigation); and In re Bennett, 164 N.J. 340 (2000) (attorney guilty of gross neglect, pattern of neglect, lack of diligence, and failure to communicate in a number of cases handled on behalf of an insurance company).
Conduct involving gross neglect, lack of diligence, and failure to communicate with clients ordinarily results in either an admonition or a reprimand, depending on the number of client matters involved, the gravity of the offenses, the harm to the clients, the presence of additional violations, and the seriousness of the attorney's disciplinary history. See, e.g., In the Matter of Esther Maria Alvarez, DRB 19-190 (September 20, 2019) (admonition for attorney who was retained to obtain a divorce for her client, but for the next nine months, failed to take any steps to pursue the matter, and failed to reply to all but one of the client's requests for information about the status of her case, violations of RPC 1.1(a) and RPC 1.4(b); in another matter, the attorney agreed to seek a default judgment, but waited more than a year-and-a-half to file the necessary papers with the court; although the attorney obtained a default judgment, the court later vacated it due to the passage of time, which precluded a determination of the timing of the damage to the property, violations of RPC 1.1(a) and RPC 1.3); In the Matter of Michael J. Pocchio, DRB 18-192 (October 1, 2018) (admonition for attorney who filed a divorce complaint and permitted it to be dismissed for failure to prosecute the action; he also failed to seek reinstatement of the complaint, and failed to communicate with the client; violations of RPC 1.1(a), RPC 1.3, RPC 1.4(b), and RPC 3.2); In re Burro, 235 N.J. 591 (2019) (reprimand for attorney who grossly neglected and lacked diligence in an estate matter for ten years and failed to file New Jersey Inheritance Tax returns, resulting in $40,000 in accrued interest and a lien on property belonging to the executrix, in violation of RPC 1.1(a) and RPC 1.3; the attorney also failed to keep the client reasonably informed about events in the case (RPC 1.4(b)); to return the client file upon termination of the representation RPC 1.16(d)); and to cooperate with the ethics investigation (RPC 8.1(b)); in aggravation, we considered the significant harm to the client and the attorney's prior private reprimand; in mitigation, the attorney expressed remorse and had suffered a stroke that forced him to cease practicing law); and In re Abasolo, 235 N.J. 326 (2018) (reprimand for attorney who grossly neglected and lacked diligence in a personal injury case for two years after filing the complaint; after successfully restoring the matter to the active trial list, the attorney failed to pay a $300 filing fee, permitting the defendants' order of dismissal with prejudice to stand, in violation of RPC 1.1(a) and RPC 1.3; in addition, for four years, the attorney failed to keep the client reasonably informed about the status of the case, in violation of RPC 1.4(b)).
When an attorney fails to cooperate with disciplinary authorities, and previously has been disciplined, but the attorney's ethics record is not serious, reprimands have been imposed. See, e.g., In re Larkins, 217 N.J. 20 (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).
Misrepresentations to clients require the imposition of a reprimand. In re Kasdan, 115 N.J. 472, 488 (1989). A reprimand still may be imposed even if the misrepresentation is accompanied by other, non-serious ethics infractions. See, e.g., In re Dwyer, 223 N.J. 240 (2015) (attorney made a misrepresentation by silence to his client, failing to inform her, despite ample opportunity to do so, that her complaint had been dismissed, a violation of RPC 8.4(c); the complaint was dismissed because the attorney had failed to serve interrogatory answers and ignored court orders compelling service of the answers, violations of RPC 1.1(a), RPC 1.3, and RPC 3.2; the attorney also violated RPC 1.4(b) by his complete failure to reply to his client's requests for information or to otherwise communicate with her; the attorney never informed his client that a motion to compel discovery had been filed, that the court had entered an order granting the motion, or that the court had dismissed her complaint for failure to serve the interrogatory answers and to comply with the court's order, violations of RPC 1.4(c)); In re Ruffolo, 220 N.J. 353 (2015) (knowing that the complaint had been dismissed, the attorney assured the client that his matter was proceeding apace, and that he should expect a monetary award in the near future; both statements were false, in violation of RPC 8.4(c); the attorney also exhibited gross neglect and a lack of diligence by allowing his client's case to be dismissed, not working on it after filing the initial claim, and failing to take any steps to prevent its dismissal or ensure its reinstatement thereafter, violations of RPC 1.1(a) and RPC 1.3; the attorney also violated RPC 1.4(b) by failing to promptly reply to the client's requests for status updates); and In re Falkenstein, 220 N.J. 110 (2014) (attorney led the client to believe that he had filed an appeal and concocted false stories to support his lies, a violation of RPC 8.4(c); he did so to conceal his failure to comply with his client's request that he seek post- judgment relief, violations of RPC 1.1(a) and RPC 1.3; because he did not believe the appeal had merit, the attorney's failure to withdraw from the case was a violation of RPC 1.16(b)(4); the attorney also practiced law while ineligible, although not knowingly, a violation of RPC 5.5(a)).
Similar to the attorneys in Dwyer, Ruffolo, and Falkenstein, respondent repeatedly misrepresented the status of the case in the Sammartino and Orduno-Luna matters, in a futile effort to conceal his own neglect. When those repeated misrepresentations are considered in combination with respondent's other misconduct, including a pattern of neglect, a censure is the minimum sanction for the totality of his misconduct.
In aggravation, the default status of these matters must also be considered. "[A] respondent's default or failure to cooperate with the investigative authorities acts as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced." In re Kivler, 193 N.J. 332, 342 (2008) (citations omitted). In light of respondent's default, alone, the enhanced sanction of a term of suspension is warranted.
In further aggravation, the three-month suspension imposed on respondent in December 2019 was for the same type of misconduct under scrutiny here. The one-year suspension imposed on respondent in May 2020 further evidences a penchant for deceit, plus egregious harm to respondent's clients, a factor also evident here. In light of the recurring nature of the serious misconduct in respondent's disciplinary matters, his continued practice of law represents a clear danger to the public. Moreover, his practice of law during five periods of ineligibility and the default status of that pending matter signaled an unvarnished disregard for the Rules and regulations governing New Jersey attorneys. In the May 2020 suspension matter, we found that respondent's conduct displayed a chronic disdain for his obligations as a New Jersey attorney. He has only compounded that characterization. His ethics history is alarming and raises genuine concerns regarding the propriety of his continued practice of law, and his fitness to do so. There is no mitigation for us to consider.
Consequently, we determine that a two-year suspension, consecutive to the terms of suspension respondent is serving currently, is the minimum quantum of discipline necessary to protect the public and preserve confidence in the bar.
Moreover, considering the recent, recurring nature of his misconduct, we require respondent to provide, prior to reinstatement, proof of fitness to practice, as attested to by a qualified mental health professional approved by the OAE.
Member Rivera voted for a three-year suspension with proof of fitness.
Vice-Chair Gallipoli and Members Joseph and Petrou 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
Bruce W. Clark, Chair
By: /s/ Ellen A. Brodsky
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Decided: August 3, 2020 Disposition: Two-Year Suspension
| Members | Two-YearSuspension | Three-YearSuspension | Recused | Did Not Participate |
|---|---|---|---|---|
| Clark | X | |||
| Gallipoli | X | |||
| Boyer | X | |||
| Hoberman | X | |||
| Joseph | X | |||
| Petrou | X | |||
| Rivera | X | |||
| Singer | X | |||
| Zmirich | X | |||
| Total: | 5 | 1 | 0 | 3 |
/s/ Ellen A. Brodsky
Ellen A. Brodsky
Chief Counsel