Opinion
DRB 20-210 DRB 20-122 DRB 20-123 DRB 20-252 DRB 20-270 DRB 20-279 DRB 20-327
05-20-2021
In the Matters of Stephanie Julia Brown An Attorney at Law
Ashley L. Kolata-Guzik appeared on behalf of the Office of Attorney Ethics. Respondent did not appear, despite proper notice. Timothy M. Ellis Acting Chief Counsel
Argued: October 15, 2020 (DRB 20-122 and DRB 20-123)
Disciplinary Review Board District Docket Nos. IV-2018-0058E; XIV-2019-0313E; XIV-2020-0033E; IV-2017-0019E; XIV-2019-0444E; XIV-2018-0395E; and IV-2019-0052E
Ashley L. Kolata-Guzik appeared on behalf of the Office of Attorney Ethics.
Respondent did not appear, despite proper notice.
Timothy M. Ellis Acting Chief Counsel
DECISION
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
These matters have been consolidated for the imposition of discipline. DRB 20-122 was before us on a motion for final discipline, pursuant to R. 1:20-13(c)(2), following respondent's adjudication, in the Superior Court of New Jersey, Law Division, Criminal Part, Gloucester County, of fourth-degree operating a motor vehicle during a period of license suspension, contrary to N.J.S.A. 2C:40-26(b), while her license was suspended or revoked for a second or subsequent violation of N.J.S.A. 39:4-50 (driving while intoxicated (DWI)). This offense constituted a violation of RPC 8.4(b) (criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects).
Respondent also was adjudicated guilty of the following motor vehicle violations: driving while her license was suspended, on August 11, 2017 and January 31, 2018, contrary to N.J.S.A. 39:3-40; and DWI, on August 11, 2017, contrary to N.J.S.A. 39:4-50(a)(3).
DRB 20-123 was before us on a motion for reciprocal discipline, pursuant to R. 1:20-14(a). The motion for reciprocal discipline arises from an order of the Supreme Court of Pennsylvania suspending respondent for one year and one day, on consent, based on her violation of the following Pennsylvania Rules of Professional Conduct and Court Rules, which the OAE asserted are either the same or equivalent to New Jersey RPC 1.1(a) (gross neglect); RPC 1.1(b) (pattern of neglect); RPC 1.3 (lack of diligence); RPC 1.15(b) (failure to promptly deliver funds to a client or third person); RPC 1.16(a)(1) (undertaking or failing to withdraw from a representation if the representation will result in violation of the Rules of Professional Conduct or other law); RPC 8.1(b) (failure to cooperate with disciplinary authorities); and RPC 8.4(d) (conduct prejudicial to the administration of justice).
Pennsylvania RPC 1.1 states that a lawyer "shall provide competent representation to a client" and that "[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
Pennsylvania RPC 1.15(e) provides, in pertinent part, that "a lawyer shall promptly deliver to the client or third person any property . . . that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding the property."
Pa.R.D.E. 203(b)(7) provides that it "shall . . . be grounds for discipline" when an attorney, "without good cause," fails to reply to "Disciplinary Counsel's request . . . for a statement of the respondent-attorney's position."
DRB 20-210; DRB 20-252; DRB 20-270; DRB 20-279; and DRB 20-327 were before us on certifications of the record filed by the District IV Ethics Committee (DEC) and the Office of Attorney Ethics (OAE), pursuant to R. 1:20- 4(f). Five formal ethics complaints charged respondent with a variety of RPC violations.
In DRB 20-210, the complaint charged respondent with having violated RPC 1.1(a) (two instances - gross neglect); RPC 1.3 (two instances - lack of diligence); RPC 1.4(b) (failure to communicate with the client); RPC 8.1(b) (two instances - failure to cooperate with disciplinary authorities); RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and RPC 8.4(d) (two instances - conduct prejudicial to the administration of justice).
Due to respondent's failure to file an answer to the formal ethics complaints, the DEC and the OAE amended the complaints to include a second RPC 8.1(b) charge in all the default matters, with the exception of DRB 20-252.
In DRB 20-252, the complaint charged respondent with having violated RPC 1.1(a); RPC 1.1(b) (pattern of neglect); RPC 1.3; RPC 1.5(b) (two instances - failure to set forth, in writing, the basis or rate of the fee); RPC 1.16(b)(1) (withdrawal from representation, causing material adverse effect on the interests of the client); RPC 3.3(a)(1) (false statement of material fact or law to a tribunal); RPC 4.1(a)(1) (false statement of material fact or law to a third person); and, as amended, RPC 8.1(b).
In DRB 20-270, the complaint charged respondent with having violated RPC 8.1(b) (two instances) and RPC 8.4(d).
In DRB 20-279, the complaint charged respondent with having violated RPC 1.15(a) (commingling); RPC 1.15(d) (failure to comply with the recordkeeping provisions of R. 1:21-6); and RPC 8.1(b) (three instances).
Finally, in DRB 20-327, the formal ethics complaint charged respondent with having violated RPC 1.1(a); RPC 1.3; RPC 1.4(b); RPC 1.5(e) (improper fee sharing); RPC 7.1(a) (false or misleading communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement); RPC 8.1(b) (two instances); and RPC 8.4(c).
For the reasons set forth below, we determine to grant the motions for final and reciprocal discipline and, for the totality of respondent's misconduct in all seven disciplinary matters, recommend to the Court that she be disbarred.
Respondent was admitted to the New Jersey bar in 2006 and to the Pennsylvania bar in 2004. During the relevant timeframe, she maintained an office for the practice of law under the name Brown & Bradshaw LLC, in Sewell, New Jersey.
Effective April 12, 2019, the Court temporarily suspended respondent for her failure to comply with a fee arbitration determination. In re Brown, 237 N.J. 249 (2019). She remains temporarily suspended to date.
On September 5, 2019, we voted to impose a three-month suspension on respondent, in a default matter, for gross neglect; failure to abide by the client's decisions concerning the scope of the representation; lack of diligence; failure to communicate with the client and to reply to reasonable requests for information; failure to return the client file upon termination of the representation; conduct involving dishonesty, fraud, deceit or misrepresentation; and conduct prejudicial to the administration of justice. In the Matter of Stephanie Julia Brown, DRB 19-039 (September 5, 2019) (Brown I). That decision is pending with the Court. Argument on the Court's Order to Show Cause took place on July 7, 2020. Respondent failed to appear, despite having received an adjournment of the matter to that date.
MOTION FOR FINAL DISCIPLINE (DRB 20-122; XIV-2019-0313E)
On January 22, 2019, respondent was arrested for fourth-degree operating a motor vehicle during a period of license suspension, contrary to N.J.S.A. 2C:40-26(b), while her license was suspended or revoked for a second or subsequent DWI violation. For reasons not explained in the record, respondent's arrest was almost a year after the underlying January 31, 2018 incident.
On March 15, 2019, respondent appeared before the Honorable M. Christine Allen-Jackson, J.S.C., in the Superior Court of New Jersey, Law Division, Criminal Part, Gloucester County, and pleaded guilty to having violated N.J.S.A. 2C:40-26(b). She also pleaded guilty to DWI and two charges of driving while suspended. Respondent and her attorney acknowledged that this was respondent's third conviction for both DWI and driving while suspended.
It appears that respondent had failed to appear on a prior date, on the mistaken belief that a Volunteers of America worker had arranged for the postponement of the hearing. Judge Allen-Jackson issued a warrant for her arrest. At the March 15, 2019 hearing, the judge released respondent on her own recognizance so she could undergo testing for symptoms relating to either an existing brain tumor or epilepsy.
At respondent's May 10, 2019 sentencing, Judge Allen-Jackson found two aggravating factors: the risk that respondent would commit another offense and the need to deter her and others from violating the law. The judge considered, as the sole mitigating factor, respondent's previous law-abiding life, although the judge also remarked that respondent's motor vehicle history was "not good."
In connection with the fourth-degree crime, Judge Allen-Jackson sentenced respondent to six months in jail, with credit for forty-four days served, and imposed $155 in penalties and assessments. For each of the three motor vehicle violations, Judge Allen-Jackson imposed a ten-day term of imprisonment, with credit for forty-four days, suspended respondent's driving privileges for six months, and assessed $1,039 in fines and costs. Finally, for the "third or subsequent conviction" for DWI, the judge imposed a 180-day term of imprisonment, with credit, plus $1,264 in fines, costs, and surcharges. She also suspended respondent's driving privileges for ten years, required her to complete twelve hours of the Intoxicated Driver Resource Course, and ordered her to use an ignition interlock device for one year.
All sentences were to run concurrently. All fines were to be paid within thirty days of respondent's release from jail.
MOTION FOR RECIPROCAL DISCIPLINE (DRB 20-123; XIV-2020-0033E)
On September 9, 2019, respondent and the Pennsylvania Office of Disciplinary Counsel (the ODC) entered into a Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) (the Joint Petition), which was submitted to the Disciplinary Board of the Supreme Court of Pennsylvania (the Disciplinary Board). On October 21, 2019, the Supreme Court of Pennsylvania, on recommendation of the Disciplinary Board, granted the Joint Petition and suspended respondent from the Pennsylvania bar for one year and one day.
The Joint Petition detailed the facts underlying respondent's unethical conduct in seven Chapter 7 bankruptcy matters, her failure to reply to the ODC's DB-7 letter, and her failure to report to the ODC her conviction of fourth-degree operating a motor vehicle during period of license suspension.
A DB-7 letter, also known as a letter of inquiry, seeks the attorney's reply to the facts alleged in a grievance (www.padisciplinaryboard.com/attorneys/faqs).
The Ashalisette Aroche Bankruptcy Petition
On June 20, 2016, respondent filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, on behalf of her client, Ashalisette Aroche. However, respondent failed to obtain Aroche's signature on the petition, schedules, statement of financial affairs, statement of intention, and verification of creditor matrix.
On July 25, 2016, respondent failed to appear for the initial meeting with the Chapter 7 Trustee and Aroche's creditors. Although Aroche took a day off from work and appeared at the rescheduled August 8, 2016 meeting, respondent neither appeared nor informed Aroche that she could not attend.
Thereafter, respondent failed to file a reply to a secured creditor's motion to foreclose on Aroche's residence. Consequently, on August 19, 2016, the court granted the motion.
On September 27, 2016, the bankruptcy trustee filed a motion to compel an accounting for all fees that Aroche paid to respondent; to deny those fees; and to require respondent to disgorge those fees. Respondent failed to appear at the November 3, 2016 hearing on the motion to disgorge. Accordingly, on November 7, 2016, the Honorable Richard E. Fehling, U.S.B.J., entered an order denying all fees and expenses that respondent had requested in Aroche's petition; requiring respondent to disgorge to Aroche $1,600 in fees within ten days, to pay an outstanding filing fee installment payment of $90 within ten days, to file a certification of compliance with the court's order within ten days; and scheduling a sanctions hearing for December 15, 2016, to address respondent's conduct and compliance with the court's order. Respondent neither timely made the required payments nor filed the certification of compliance as the court's November 7, 2016 order required.
On November 16, 2016, Judge Fehling rescheduled the creditors meeting with the trustee and Aroche's creditors for December 15, 2016 and ordered respondent to attend. Once again, respondent failed to appear for the creditors meeting or the sanctions hearing. She claimed that she was unable to attend because she was receiving treatment in an alcohol abuse rehabilitation program.
On December 22, 2016, Judge Fehling entered an order, imposing a $250 sanction on respondent for failing to comply with the court's orders; reinstating the court's order denying and disgorging fees; renewing the court's order that respondent file a certification of compliance with the court's order; and rescheduling the sanctions hearing for January 5, 2017. Yet, again, respondent failed to timely make the required payments; failed to pay the $250 sanction; failed to file the certification of compliance; and failed to appear for the January 5, 2017 sanctions hearing.
On January 5, 2017, Judge Fehling sanctioned respondent by entering an order terminating her electronic filing privileges. On February 8, 2017, the judge rescheduled the sanctions hearing for February 23, 2017. Respondent did not appear, claiming that she was unable to attend because her estranged husband had denied her access to the marital home, and, thus, her work materials; laptop computer; clothes; and car.
Respondent failed to appear for three more rescheduled hearing dates, in March, August, and September 2017. On October 10, 2017, following respondent's failure to appear for a September 28, 2017 hearing, Judge Fehling adjudged her in civil contempt for her failure to comply with the court's orders.
On November 29, 2017, Judge Fehling rescheduled the sanctions hearing to January 25, 2018. Respondent failed to appear. This time, by order dated January 29, 2018, Judge Fehling authorized the United States Marshals Services (the U.S. Marshals) to take respondent into custody and to bring her before the court.
On January 30, 2018, the U.S. Marshals arrested respondent and brought her before the court for a contempt hearing. Following the contempt hearing, and by order dated January 31, 2018, Judge Fehling required respondent to disgorge $1,600 in fees to Aroche; pay a $250 sanction; and file, on or before February 9, 2018, a certification of compliance with the court's order.
On February 25, 2018, respondent filed a certification of compliance with the court, stating that she had refunded the $1,600 to Aroche. Respondent claimed that, some months prior to the January 30, 2018 hearing, she had driven from her home in New Jersey to Aroche's home in Harrisburg, Pennsylvania, hand-delivered the money to Aroche, and apologized to her.
Respondent failed to timely pay the $250 sanction and claimed that she had been unemployed for a substantial period. Nevertheless, she represented that she was mindful of, and fully intended to meet, her obligation.
The Terri Lee Schweichler Petition
On July 18, 2016, approximately one month after respondent had filed the Aroche Chapter 7 bankruptcy petition, she filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, on behalf of her client, Terri Lee Schweichler. Respondent failed to obtain Schweichler's signature on the petition, schedules, statement of financial affairs, statement of intention, and verification of creditor matrix.
Based on Schweichler's county of residence, the proper district for her bankruptcy petition was the United States Bankruptcy Court for the Western District of Pennsylvania. Respondent neither filed the Schweichler petition in the proper district nor filed a motion to transfer it to the Western District.
On July 28, 2016, the court issued to respondent a rule to show cause why the Schweichler petition should not be dismissed for having been filed in the wrong district. On that same day, respondent attempted to file a "Motion to Transfer Case to Another Division," but failed to include the motion and, instead, filed only a certificate of service.
On July 29, 2016, the court sent respondent a "Notice of Inaccurate Filing." On the same day, respondent attempted to file two separate transfer motions in the Schweichler petition, but again failed to include the motions, incorrectly filed only certificates of service, and on one of the defective transfer motions, incorrectly listed the debtor, Schweichler, as Deanna Heck (another client whose matter is discussed below).
On August 10, 2016, respondent filed another transfer motion, but failed to properly notice the motion for a hearing. On August 22, 2016, following a hearing, the court transferred the Schweichler petition to the Western District.
The Lisa Stephanie Manescu Petition
On July 19, 2016, respondent filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, in behalf of her client, Lisa Stephanie Manescu. Respondent failed to obtain Manescu's signature on the petition, schedules, statement of financial affairs, statement of intention, and verification of creditor matrix. She also failed to file the required certificate of credit counseling with the Manescu petition.
On July 20, 2016, the court ordered respondent to file the required certificate by July 26, 2016. On July 29, 2016, the court dismissed the Manescu petition due to respondent's failure to file the certificate.
Also, on July 29, 2016, approximately two hours after the Manescu petition was dismissed, respondent filed the certificate. On August 11, 2016, she filed a motion to vacate the dismissal of the Manescu petition. The next day, the court rejected the motion because respondent had failed to use the proper form or to sign the motion.
On August 22, and September 16, 2016, respondent filed a second and third motion to vacate. On September 20, 2016, the court dismissed the motions, without prejudice, for lack of effective notice.
According to the Joint Petition, on September 30, 2016, respondent filed a fourth motion to vacate, and, three days earlier, on September 27, 2016, the court dismissed the fourth motion to vacate for lack of effective notice. Presumably, these dates were inadvertently juxtaposed.
On October 13, 2016, the bankruptcy trustee filed a motion to deny and disgorge all fees that Manescu paid to respondent. Respondent failed to appear for the scheduled November 3, 2016 hearing on that motion.
On November 7, 2016, Judge Fehling entered an order, denying all fees and expenses that respondent requested in respect of the Manescu petition; requiring respondent, within ten days, to (1) disgorge $1,300 in fees that Manescu had paid respondent, (2) reimburse Manescu for $30 in travel expenses, (3) pay an outstanding $276 filing fee, and, within fourteen days, to file a certification of compliance with the court's order. The order further scheduled a sanctions hearing for December 15, 2016, to address respondent's conduct and compliance with the court's order.
On November 14, 2016, the court scheduled a meeting with the trustee and Manescu's creditors for December 8, 2016. Respondent failed to attend the meeting. She also failed to attend the sanctions hearing on December 15, 2016.
"For the sake of brevity," the Joint Petition incorporated by reference paragraphs twenty to twenty-three and paragraphs twenty-nine to thirty-seven, which were set forth in respect of the Aroche petition, because these paragraphs "describe the same procedural history and factual averments" from December 22, 2016 through January 5, 2017, and from August 2, 2017 through January 30, 2018, regarding the Manescu petition.
On February 16, 2017, Gregory J. Pavlovitz, Esq., replaced respondent as counsel of record and entered his appearance as counsel for Manescu.
On January 31, 2018, following the January 30, 2018 contempt hearing, Judge Fehling ordered respondent to disgorge $1,300 in fees to Manescu and to pay a $250 sanction and $276 in outstanding filing fees for the Manescu petition. The judge also ordered respondent to pay these amounts in monthly installments of $500, beginning February 28, 2018, with subsequent payments due on the last day of each month.
On March 5, 2018, respondent made a $200 partial payment, followed by a $100 partial payment on March 26, 2018. According to respondent, she had been unable to make any additional payment because she was unemployed.
The Deanna Heck Petition
On July 22, 2016, respondent filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, on behalf of her client, Deanna Heck. Based on Heck's county of residence, the proper district for her bankruptcy petition was the United States Bankruptcy Court for the Middle District of Pennsylvania. Respondent neither filed the Heck petition in the proper district nor filed a motion to transfer it to the Middle District.
On July 27, 2016, the court issued to respondent a rule to show cause why the Heck petition should not be dismissed for having been filed in the wrong district. The next day, respondent electronically filed two separate transfer motions, as well as a motion to change venue/inter-district transfer. On July 29, 2016, the court sent respondent a "Notice of Inaccurate Filing," because she had failed to attach the correct documents to her electronic court filings.
On August 1 and August 3, 2016, respondent filed modified and corrected motions to transfer the Heck petition to the Middle District. Yet, according to the Joint Petition, she failed to file accurate or correct transfer motions for the Heck petition. By order dated August 3, 2016, the court transferred the Heck petition to the Middle District.
The Russell Rajuan Henderson Petition
On August 16, 2016, respondent filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, in behalf of her client, Russell Rajuan Henderson. Because respondent failed to file the required certificate of credit counseling with the Henderson petition, the court ordered her to do so by August 25, 2016. Respondent complied with the order.
On an unidentified date, respondent filed an application to pay the filing fee in installments, despite the fact that Henderson had advanced the funds necessary to pay the filing fee. On August 22, 2016, the court granted respondent's application and ordered that the fee be paid in three equal installments, on September 21, October 21, and November 21, 2016. Yet, respondent failed to timely remit the October 21 and November 21, 2016 payments.
On December 19, 2016, the court issued to respondent a notice to show cause, on January 11, 2017, why the Henderson petition should not be dismissed for her failure to pay the filing fee. Respondent failed to appear for the January 11 hearing. Consequently, on that date, the court dismissed the Henderson petition for failure to pay the filing fee.
On February 15, 2017, Michael J. McCrystal, Esq., entered his appearance to replace respondent as counsel of record in the Henderson matter, and filed a motion to reopen the case, on the ground that, although Henderson had prepaid the entire filing fee to respondent, she failed to remit the filing fee to the court. At some point not identified in the petition, respondent acknowledged that she had received the funds from Henderson but claimed that "there was a clerical error in the filing."
On March 15, 2017, the court granted McCrystal's motion, and the Henderson petition was reopened. On September 28, 2017, Henderson's debts were discharged.
The Kathy L. Hadlow Petition
On September 8, 2016, respondent filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, in behalf of Kathy L. Hadlow. Because Hadlow's county of residence required the petition to be filed in the United States Bankruptcy Court for the Middle District of Pennsylvania, respondent failed to file the Hadlow petition in the proper district.
Respondent failed to file a motion to transfer the Hadlow petition to the Middle District. According to the Joint Petition, on September 29, 2016, the court issued to respondent a rule to show cause why the Hadlow petition should not be dismissed and scheduled the hearing for the same date - September 29, 2016. Presumably, one of these dates is erroneous.
On September 27, 2016, respondent filed a "Motion to Transfer Case to Another Division." Two days later, the Hadlow petition was transferred to the Middle District.
The Wendy Douglas-Downing Petition
On December 6, 2016, respondent filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of Pennsylvania, in behalf of her client, Wendy Douglas-Downing, but respondent should have filed the petition in the Middle District. In addition, respondent failed to submit with the Douglas-Downing petition all documents required by Federal Rule of Bankruptcy Procedure 1007.
On December 6, 2016, the court notified respondent that, if the required documents were not filed, the Douglas-Downing petition would be dismissed, without further notice. Respondent failed to file the required documents. Presumably, the court did not dismiss Douglas-Downing's petition because, by order dated January 7, 2017, the petition was transferred to the Middle District.
Respondent's Failure to Reply to the ODC's DB-7 Letter
On November 9, 2018, the ODC sent respondent, via certified mail, a DB-7 letter, in respect of two unidentified ODC complaints, to her home address of record in Williamstown, New Jersey. The ODC received a signed return receipt showing that the DB-7 letter had been delivered to respondent's residence on an unidentified date.
Respondent did not recall having received the DB-7 letter, claiming that, during this time, she was "suffering from an unknown meniginoma (sic) brain tumor," which caused "seizures and memory loss," and was being treated for alcoholism at an in-patient rehabilitation facility. She failed to answer the DB-7 letter within thirty days, as required by Pennsylvania Disciplinary Rule 87.7(b)(2).
On December 12, 2018, the ODC sent respondent, via certified and regular mail, another copy of the DB-7 letter, and requested that she provide an answer by December 26, 2018. Although respondent's request for an extension to file the answer by February 19, 2019 was granted, she failed to submit a reply to the DB-7 letter.
Respondent's Failure to Report Her Criminal Conviction
As stated previously, on March 15, 2019, respondent pleaded guilty to operating a motor vehicle during a period of license suspension and was sentenced to six months in jail. She failed to report her conviction to the ODC within twenty days, as required by Pa.R.D.E. 214(a).
Based on the above facts, the parties stipulated, via the Joint Petition, that respondent was guilty of gross neglect; lack of diligence; failure to promptly deliver funds to a client or third person; representing a client or failing to withdraw from representation if the continued representation would violate the Rules of Professional Conduct; and engaging in conduct prejudicial to the administration of justice. In addition, the parties stipulated that respondent violated Pa.R.D.E. 203(b)(1), which states that conviction of a crime shall be grounds for discipline, and Pa.R.D.E. 203(b)(7), which states that the failure by a respondent-attorney without good cause shown to respond to a DB-7 Request for Statement of Respondent's Position under Pennsylvania Disciplinary Rule 87.7(b) shall be grounds for discipline.
In the Aroche, Schweichler, and Manescu matters, respondent attributed her failure to competently handle her clients' petitions to her alcoholism, as well as personal difficulties involving marital, domestic violence, and child custody issues that she had experienced during that time. She accepted full responsibility for her conduct and expressed remorse for her actions.
The Joint Petition also noted respondent's assertion that, as of its execution, she was being treated for alcoholism, and her ability to practice law was affected by her addiction to alcohol. Although respondent did not produce an expert report or sufficient evidence of mitigation, the ODC confirmed that she had received treatment for alcoholism. Further, the parties agreed that, if respondent filed a petition for reinstatement following the expiration of her suspension, another hearing committee could explore her alcoholism and fitness to practice law.
The parties agreed to the following mitigating factors: respondent entered the Joint Petition; she accepted responsibility for her wrongdoing and expressed remorse; she apologized to Aroche; during the relevant time period, she suffered personal difficulties, including issues involving her health; marital difficulties; domestic violence; and child custody; and she had no history of discipline.
For respondent's combined misconduct in the motion for final discipline and the motion for reciprocal discipline, the OAE recommended that she receive a two-year suspension and that, prior to reinstatement, she be required to provide "proof of sustained sobriety including negative alcohol tests and successful completion of alcohol addiction treatment." Respondent did not submit a brief to us.
THE DEFAULT MATTERS
In addition to the seven client matters comprising the motion for reciprocal discipline, we examine respondent's handling of three client matters in New Jersey, as discussed below.
THE IRIS TOWNSEND MATTER (DRB 20-210; IV-2018-0058E)
Service of process was proper. On May 20, 2020, the DEC sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's primary billing address of record (the billing address). On an unidentified date, the certified mail receipt was returned to the DEC, with the phrase "COVID 19" written on the signature line, and dated May 22, 2020. The regular mail was not returned.
According to the certification of the record, due to the COVID-19 pandemic, the United States Postal Service (USPS) does not require the recipient of a certified letter to place his or her signature on the green card. Rather, the letter carrier hand delivers the mail to the recipient and then writes "COVID 19" on the signature line.
According to the Williamstown Postmaster, mail directed to respondent is delivered to the billing address.
On June 22, 2020, the DEC sent a letter to respondent, by regular mail, at the billing address, informing her that, unless she 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 July 22, 2020, respondent had not filed an answer to the complaint, and the time within which she was required to do so had expired. Accordingly, the DEC certified this matter to us as a default.
We now turn to the allegations of the complaint.
In September 2016, respondent's unpaid intern, Iris Townsend, sought respondent's assistance in filing a bankruptcy petition to prevent the repossession of Townsend's vehicle. Respondent requested that Townsend pay her $1,800, with $500 in advance, because the filing fee was $318. Respondent stated that she would incorporate the balance of the fee into Townsend's Chapter 13 payment schedule.
Respondent obtained from Townsend the necessary information and, presumably, filed a bankruptcy petition in her behalf. Respondent did not, however, pay the $318 filing fee. Instead, she chose to make installment payments.
On December 15, 2016, respondent represented to Townsend that she was "still trying to send the documents to the bankruptcy court," via e-filing. On December 19, 2016, Townsend informed respondent that she had received a notice from the bankruptcy court that her case had been dismissed for her failure to attend the creditors' meeting and her failure to provide tax returns and proof of income to the Trustee. The communication from the bankruptcy court was Townsend's first notice that a creditors' meeting had been scheduled and that respondent had not filed the required documents.
Also on December 19, 2016, respondent represented to Townsend that she would file a motion to vacate the dismissal, and instructed Townsend to send the tax returns and proof of income to the Trustee and to continue making payments on her vehicle. In addition, respondent directed Townsend to inform the Trustee's office that she worked for respondent; explain that there had been difficulty in submitting the documents electronically; and ask whether she could send the documents by mail.
On December 22, 2016, Townsend spoke to the Trustee's paralegal, who instructed her to stop making payments to the Trustee. Five days later, the Trustee's office informed Townsend that, on December 8, 2016, the bankruptcy court had dismissed her case. Although respondent had repeatedly assured Townsend that she would file a motion to reinstate the case or to vacate the dismissal, according to the Trustee's office, the court's docket did not reflect any such request.
On December 30, 2016, Townsend informed respondent that the creditor had arranged to sell Townsend's vehicle on January 10, 2017. Respondent again promised to file a petition that weekend and asked Townsend to re-submit all required documents, which Townsend provided on January 1, 2017.
From January 2 to January 9, 2017, the day before Townsend's car was to be sold, respondent assured Townsend, on numerous occasions, that she would file the petition. On January 10, 2017, respondent told Townsend that she had filed the pleadings and would provide her with the docket number to give to the creditor. Respondent's statement was false.
On January 11, 2017, Townsend asked respondent for the docket number. It is not clear whether respondent complied with her request. However, after this point, respondent ceased replying to Townsend's e-mails. Thereafter, Townsend handled the bankruptcy matter on her own.
In addition to the bankruptcy matter, respondent had agreed to represent Townsend at a November 15, 2016 court proceeding to contest a bill. On November 14, 2016, Townsend reminded respondent that the court proceeding would take place the next day. Respondent failed to appear in court and Townsend paid $972.74 to resolve the case.
On January 24, 2019, the DEC sent a copy of Townsend's ethics grievance to respondent, by certified and regular mail, and directed respondent to reply within ten days. On April 24, 2019, the certified mail was returned, marked "unclaimed." The regular mail was not returned.
By letter dated March 15, 2019, respondent requested an additional sixty days to reply to the grievance, citing a medical condition. The DEC granted her request and extended the deadline to May 15, 2019. Respondent failed to submit a written reply to the grievance.
Based on the above facts, the complaint charged respondent with having violated RPC 1.1(a), in both of Townsend's matters, by failing to take necessary action and, ultimately, abandoning the cases; RPC 1.3, by failing to complete Townsend's bankruptcy petition; correct its known deficiencies; failing to file the necessary motion to reinstate the bankruptcy proceedings; failing to attend the court proceeding in the second matter; and by abandoning Townsend in respect of the bankruptcy matter; RPC 1.4(b) by failing to provide Townsend with accurate information about the status of her matter and, ultimately, ceasing all communication with her; RPC 8.1(b) by failing to reply to the grievance and by failing to submit an answer to the complaint; RPC 8.4(c) by repeatedly lying to Townsend and by continually misrepresenting the status of the case; and RPC 8.4(d) by mishandling Townsend's bankruptcy matter, which placed her car in jeopardy; by failing to appear in the court proceeding, which caused Townsend to settle a matter that she had intended to dispute; and by failing to abide by the Court Rules by failing to apprise Townsend of the status of her case, and abandoning her during the proceedings.
THE ZIA SHAIKH MATTER (DRB 20-252; IV-2017-0019E)
Service of process was proper. On April 29, 2020, the DEC sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's billing address. On an unidentified date, the certified mail receipt was returned to the DEC, marked "return to sender - unclaimed, unable to forward." The regular mail was not returned.
On June 22, 2020, the DEC sent a copy of the formal ethics complaint, by certified and regular mail, to respondent at the billing address. On an unidentified date, the certified mail receipt was returned to the DEC, with the phrase "COVID 19" written on the signature line, and dated June 23, 2020. The regular mail was not returned.
On July 22, 2020, the DEC sent a letter to respondent, by regular mail, at the same address, informing her that, unless she 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 August 25, 2020, respondent had not filed an answer to the complaint, and the time within which she was required to do so had expired. Accordingly, the DEC certified this matter to us as a default.
We now turn to the allegations of the complaint.
In April 2013, Zia Shaikh retained respondent to represent him in a business matter. Four months later, because respondent held herself out as a matrimonial law specialist, Shaikh retained her to represent him in an Ocean County divorce action against Laura Germadnig-Shaikh. Respondent did not provide Zia with a retainer agreement, either at the inception of the divorce representation, or when she accepted an additional $3,000 retainer from him. Thus, the complaint charged respondent with having violated RPC 1.5(b).
On April 2, 2014, Laura's lawyer, Steven Zabarsky, Esq., filed a motion for pendente lite relief, which was returnable on May 2, 2014. On April 23, 2014, Laura and Zabarsky appeared for a scheduled case management conference before the Honorable Madelin F. Einbinder, J.S.C., but respondent and Zia did not. Judge Einbinder stated on the record that respondent had received notice of the conference, and that the judge's secretary had left one message for her, but that she was unable to leave any further messages because respondent's voice mail box was full.
At the conference, Zabarsky informed Judge Einbinder that he had received no opposition to the pendente lite motion, and that the deadline to submit opposition was five days earlier. Judge Einbinder ruled on the unopposed motion at the conference. Based on respondent's failure to file written opposition to the pendente lite motion, the complaint charged her with having violated RPC 1.1(a).
Also on April 23, 2014, after the conference, Zabarsky sent respondent, via facsimile, a copy of the court's order in respect of the motion for pendente lite relief. On that date, respondent sent separate letters to Judge Einbinder and Zabarsky, apologizing for her failure to appear at the case management conference. Respondent denied having received notice of the conference and, thus, asked the court to reschedule the conference and to reconsider the order entered on April 23, 2014.
Despite respondent's claim that she was unaware of the April 23, 2014 case management conference, on April 1, 2014, she had written a letter to Zia, stating "I have told you now three times that the case management conference is on for April 24th." Thus, the complaint alleged, respondent knew, as early as April 1, 2014, that a case management conference had been scheduled.
In addition, the complaint charged respondent with having violated RPC 3.3(a)(1) based on her claim, in the April 23, 2014 letter to the court, that she had not received notice of the case management conference. Similarly, her letter to Zabarsky, asserting the same claim, violated RPC 4.1(a)(1).
As stated above, respondent failed to oppose the motion for pendente lite relief. She also failed to request an adjournment of the May 2, 2014 argument date. Further, on May 1, 2014, the day before argument, respondent informed Zabarsky that she was withdrawing from her representation of Zia and that she would be filing a motion in that regard. Accordingly, the complaint charged respondent with having violated RPC 1.3, by failing to file opposition to the motion, and RPC 1.16(b)(1), by failing to withdraw from Zia's representation at a time when withdrawal would not have had a materially adverse effect on Zia's interests or other good cause existed.
Finally, the complaint charged respondent with having violated RPC 1.1(b), alleging that her actions, described above, constituted a pattern of neglect.
FAILURE TO FILE THE AFFIDAVIT OF COMPLIANCE REQUIRED BY R. 1:20-20 (DRB 20-270; XIV-2019-0444E)
Service of process was proper. On May 28, 2020, the OAE sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's last known home/office and billing addresses. The certified letter sent to respondent's home/office address was returned to the OAE, marked "not deliverable as addressed unable to forward." The regular mail was not returned.
The receipt for the certified letter sent to respondent's billing address was returned to the OAE, with the phrase "COVID 19" written on the signature line, and dated June 5, 2020. The letter had been left with an individual at that address. The regular mail was not returned.
On July 7, 2020, the OAE sent a letter, by certified and regular mail, to respondent's billing address, informing her that, unless she 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). On July 25, 2020, the certified letter was left with an individual at the address. The regular mail was not returned.
As of September 15, 2020, 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 March 13, 2019 Order of temporary suspension, respondent was ordered to comply with R. 1:20-20(b)(15), which specifies, among other things, that, within thirty days after the date of the Order, respondent "file with the Director [of the OAE] 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 comply with this obligation.
By letter dated September 23, 2019, the OAE sent a letter to respondent, by certified and regular mail, to her home/office and billing addresses, directing her to file the mandatory affidavit by October 7, 2019. Both letters sent to the home/office address were returned to the OAE, marked "not deliverable as addressed unable to forward." According to the USPS tracking system, the certified mail was returned, as "forward expired." The certified letter sent to respondent's billing address was returned to the OAE, marked "unclaimed." The regular mail sent to the address was not returned.
As of May 24, 2020, the date of the ethics complaint, respondent had not filed the required affidavit. Accordingly, the complaint alleged that she had willfully violated the Court's March 13, 2019 Order and failed to take the steps required of all suspended attorneys, including notifying clients and adversaries of her suspension and providing pending clients with their files. Thus, the complaint charged respondent with having violated RPC 8.1(b) and RPC 8.4(d).
THE RECORDKEEPING MATTER (DRB 20-279; XIV-2018-0395E)
Service of process was proper. On July 23, 2020, the OAE sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's billing address. On August 5, 2020, the receipt for the certified letter was returned to the OAE, with the phrase "COVID 19" written on the signature line, and dated July 27, 2020. The letter had been left with an individual at that address. The regular mail was not returned.
On August 31, 2020, the OAE sent a letter to respondent, by UPS, at the same address, informing her that, unless she 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). On September 2, 2020, the letter was left at the address.
As of September 28, 2020, 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.
During the relevant timeframe, respondent maintained at TD Bank (TD) an attorney trust account (ATA) in the name of Brown & Bradshaw LLC. She also maintained an attorney business account, in the same name, which was closed on April 22, 2014, and a personal account, in the name of respondent and Jeffrey M. Brown, which was closed on May 14, 2018.
The May 14, 2018 Overdraft
On May 14, 2018, respondent's ATA had a $55.36 balance. On that date, however, she made three purchases, totaling $58.16, causing a $2.80 overdraft in the account. On the following day, TD issued an overdraft notice to respondent, and sent a copy to the OAE.
By letter dated June 4, 2018, the OAE sent a copy of the overdraft notice to respondent, at a Sewell address of record, and demanded that she provide a written explanation and supporting records by June 18, 2018. Respondent failed to reply to the OAE's letter.
On July 12, 2018, the OAE sent respondent another copy of the June 4 correspondence and demanded a written explanation and supporting records by July 19, 2018. The mailing was returned to the OAE, with the billing address handwritten on the envelope.
By letter dated August 6, 2018, the OAE sent the two prior mailings to respondent, by certified and regular mail, to her Sewell address, the billing address, and a third address in Williamstown. The letter demanded that respondent reply with a written explanation and supporting records by August 17, 2018. The USPS returned the letters sent to the Sewell address, noting the billing address as the forwarding address. The certified letter sent to the billing address was delivered, with the signed receipt returned to the OAE on August 13, 2018. The regular mail was not returned. The certified letter sent to the third address was returned, marked "unclaimed," but the regular mail was not returned.
The OAE received no reply from respondent by the August 17, 2018 deadline.
The May 25 and May 29, 2018 Overdrafts
On May 25, 2018, respondent's ATA balance was $936.24, with a $14.93 hold, thus reducing the available balance to $921.31. On that date, the following transactions reduced the balance to -$241.83: three purchases, totaling $208.86; a $934.28 returned-check chargeback; and a $20 returned check fee. On May 29, 2018, TD assessed a $140 overdraft fee, further reducing the ATA balance to -$381.83, and issued an overdraft notice to respondent, with a copy sent to the OAE.
On May 30, 2018, TD issued another overdraft notice to respondent, with a copy to the OAE. This overdraft was the result of ATA activity that took place on May 29, 2018. According to the notice, respondent's beginning balance on that date was -$226.90. Although respondent deposited $1,334.28 in her ATA on that date, the deposit was not yet available. Thus, after the $140 overdraft was paid; a $14.93 purchase posted; and a $35 overdraft fee was assessed, the ATA had a negative balance of -$416.83.
By letter dated June 14, 2018, the OAE sent a copy of the overdraft notices to respondent, in care of Brown and Bradshaw LLC, at the Sewell address, and demanded that she provide a written explanation and supporting records by June 28, 2018. Respondent failed to reply to the OAE's letter.
On July 12 and August 7, 2018, the OAE's certified letters sent to respondent's various addresses of record, seeking her reply to the overdraft notices, were returned. Two letters sent by regular mail were not returned. The OAE received no reply from respondent.
On October 9, 2018, the OAE sent a copy of the prior correspondence to respondent, by certified and regular mail, to the billing address, and demanded a reply in respect of all three overdrafts by October 24, 2018. On October 26, 2018, the OAE received a signed return receipt. The regular mail was not returned. Again, respondent failed to submit any reply.
By letter dated April 11, 2019, the OAE provided respondent with a detailed summary of the status of its investigation of her ATA overdrafts and offered her the opportunity to consent to a transfer to disability-inactive status. The OAE set a deadline of May 10, 2019 for respondent to either reply to the previous requests for an explanation of the overdrafts or submit the documents for disability-inactive status, pursuant to R. 1:20-12(e). She did neither. Respondent also failed to reply to the OAE's follow up and subsequent extension to March 27, 2020.
Eventually, the OAE obtained from TD respondent's banking records, which showed that she had been depositing attorneys' fees and costs in her ATA, because she had closed her business account on April 22, 2014. In addition, she had been depositing personal checks in the ATA since May 14, 2018, when the joint account with her husband was closed.
THE NICOLE FERRARA MATTER (DRB 20-327; XIV-2019-0052E)
Service of process was proper. On July 22, 2020, the DEC sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's billing address. On an unidentified date, the return receipt was returned to the DEC, with the phrase "COVID 19" written on the signature line, and dated July 29, 2020. The regular mail was not returned.
On September 23, 2020, the DEC sent a letter to respondent, by regular mail, at the billing address, informing her that, unless she 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 November 10, 2020, respondent had not filed an answer to the complaint, and the time within which she was required to do so had expired. Accordingly, the DEC certified this matter to us as a default.
We now turn to the allegations of the complaint.
In the summer of 2016, grievant Nicole Ferrara sought legal counsel in respect of a potential bankruptcy filing. After performing an online search for bankruptcy law firms in New Jersey, Ferrara contacted a Florida-based firm, Pellegrino and Associates (the Pellegrino firm), which was one of the top results in her search. Ferrara spoke with attorney Robert Pellegrino, who told her that his firm could handle her case.
The Pellegrino firm sent Ferrara a "Chapter 7 Bankruptcy Fee Agreement," which she signed on July 18, 2016. The fee agreement stated that the Pellegrino firm was "a Florida limited liability company with offices in the client's state." At the time, however, the Pellegrino firm did not have a New Jersey office.
In short, the fee agreement provided that Ferrara would pay $1,500 for the representation, exclusive of filing fees and potential supplemental charges; upon receipt of the flat fee, the Pellegrino firm would begin working on Ferrara's case; the Pellegrino firm would "provide those legal services contemplated under [the fee agreement];" and the firm had "a non-exclusive arrangement with third parties" to provide support services that were not "legal services."
In August 2016, Ferrara began sending to the Pellegrino firm documents that it had requested for use in preparing her Chapter 7 petition. Because Ferrara had received no communication from the Pellegrino firm, in mid-August 2016, she called Pellegrino, who told her the firm was opening a new office in New Jersey and that a partner in that office would handle Ferrara's case.
On August 22, 2016, Pellegrino firm representative Keith Hughes sent respondent, via DocuSign, a document titled "Class B Agreement." The Class B agreement provided, among other things, that respondent would perform services in connection with Chapter 7 bankruptcy petitions "on an independent contractor basis;" that, although her name may be listed as a member of the Pellegrino firm, subject to the applicable RPCs, her position was "at will" and, thus, her association with the Pellegrino firm could be "terminated at any time for any or no reason;" and that, pursuant to a fee schedule, respondent would be paid $450 for each Chapter 7 case, plus $75 to prepare and file each petition and schedules.
On September 16, 2016, the Pellegrino firm sent Ferrara a list of three items that needed to be supplied. By September 21, 2016, "[a]ll basic documents [were] completed," and Ferrara had paid the full fee.
On September 19, 2016, the Pellegrino firm sent an e-mail to respondent, assigning Ferrara's case to her, and stating that, once the firm had collected all necessary documents from Ferrara, they would be sent to respondent. Pursuant to the e-mail, respondent ran a conflict check, which did not uncover any conflict.
Also in September 2016, the Pellegrino firm informed Ferrara that respondent would be handling her case. On November 4, 2016, respondent contacted Ferrara for the first time, leaving a voice mail message stating that she was the Pellegrino firm "partner" who would be handling Ferrara's case and that she would be sending an e-mail with questions to Ferrara. Ferrara, however, never received any such e-mail from respondent.
Near the end of October 2016, Ferrara's car was repossessed for nonpayment. By this point, respondent had not communicated with Ferrara, who was unaware that she could seek to redeem her car as part of a timely Chapter 7 filing.
On November 7, 2016, Ferrara sent a copy of the repossession notice to respondent but received no reply. Although respondent denied having received Ferrara's e-mail, on December 27, 2016, respondent replied to that e-mail, demonstrating that she had, in fact, received it.
On December 6, 2016, after Ferrara had complained that she had received no contact from respondent, Pellegrino firm representative Keith Brown informed her that, in late November, respondent had been in a car accident.
In early December, Ferrara received an offer of employment as an administrative assistant. On December 7, 2016, during their first conversation, respondent advised Ferrara against accepting the job offer, because Ferrara would be earning too much money to proceed with a Chapter 7 filing. Respondent's advice was incorrect, however, because Ferrara's salary would have been below the threshold permitted for Chapter 7 filings. Nonetheless, Ferrara followed that advice and declined the job offer.
During the same conversation, respondent stated that Ferrara's case "was easy" and that respondent would prepare the filing that evening and forward it the next day. Finally, respondent also told Ferrara that she preferred to communicate primarily via text message, rather than by e-mail or telephone.
The next day, Ferrara texted respondent, stating she had not received any e-mails from respondent or draft papers to review. Respondent replied that she had problems accessing the electronic files from Florida, but that the issue had been fixed and, thus, she believed that she would be able to send the petition "later on." Because Ferrara was working that evening, she informed respondent that it would be fine for her to receive the draft papers the next day. Respondent replied, "cool, thanks."
On December 12, 2016, Ferrara texted respondent and asked whether she had sent the draft petition. Ferrara also asked respondent to inform her of the date that the Pellegrino firm first contacted her "[b]ecause I have a second interview for a job today and this should have been done months ago. He was paid in full in September." Because this job offered a lower salary, Ferrara understood that it would not negatively impact her Chapter 7 filing. Although respondent answered that she had sent the e-mail, Ferrara asked her to resend it and to call and confirm that she had done so, noting that respondent had claimed that she never received the November 7 repossession notice e-mail which, as noted above, was not true. Ferrara added that she had "lost another three days here already." That evening, respondent replied that she would re-send the draft petition in the morning.
On December 13, 2016, at 1:54 p.m., via text, Ferrara informed respondent that, since she had not heard from respondent, she assumed that respondent still had not re-sent the e-mails. Ferrara's text continued, in part: "[i]f you had sent me the e-mails it takes less than a minute to forward them to me. I find it hard to believe that you did not have one minute to forward them to me. I've been telling you I'm not receiving your e-mails so I don't know why you wouldn't give me a heads up either that you have resent them." An hour later, respondent replied, "[s]orry really crazy week I will forward tonight," which she then failed to do. Thereafter, Ferrara filed an ethics complaint against respondent in Florida.
On December 27, 2016, respondent texted Ferrara, "Nicole did you get my e-mails?" Ferrara answered, "[y]es. It appears they were composed today and not forwarded from a prior date. Correct?" Respondent ignored the question and replied, "I need you to respond so I can complete the petition tonight. I understand that you filed a bar complaint?"
On December 27 and December 28, 2016, Ferrara and respondent exchanged texts, which demonstrated that respondent either did not recall or did not know certain facts about Ferrara's case. For example, respondent asked Ferrara what kind of car she owned, to which Ferrara replied that she did not own a car because her 2015 Hyundai Elantra had been repossessed. Respondent then asked Ferrara whether she was aware that she had two tax liens, to which Ferrara answered, "[t]he tax issue was discussed with you and Rick. I left several urgent messages with the office about this. You and I discussed this in December you know the night you told me to trust you."
Later, on December 28, 2016, respondent texted Ferrara that she would be sending the forms shortly and recommended that Ferrara "get another lawyer after you approve the filing," noting that Pellegrino could "assign you one." Ferrara answered, "he already is going to;" respondent replied, "great."
On December 29, 2016, Ferrara wrote to Pellegrino that "someone needs to contact the IRS today as I have received notice they are going to levy on my bank accounts." Ferrara wrote:
I should not and will not be the person who has consequences from Stephanie's or the firm's handling of my case. The lawyer I retained and paid for was supposed to be sitting on my side of the table. She was not. This was beyond dropping the ball. She lied about having my work completed and was unresponsive from the beginning. The IRS matter has become critical now and that is due to Stephanie and the office not me. Stephanie told me on December 7th there were several issues that I was not properly advised on [sic] this was one of them. The others being, change of address and employment.[C¶27.]
"C" refers to the undated formal ethics complaint.
On December 20, 2016, Ferrara sent an "Update" e-mail to Pellegrino, stating "I wish I had one for you. I have not received the revised petition yet; I waited all day yesterday and most of today so looks like I will officially be bankrupt in 2017 not 2016 this is just too unbelievable; I am looking forward to you assigning me a new lawyer to finish this!"
Contemporaneously, Ferrara called the Florida Bar to complain about the service that she had received from the Pellegrino firm. Later that day, Pellegrino told Ferrara that she would be hearing from respondent. Ferrara told Pellegrino that she did not wish to proceed with respondent; Pellegrino instructed Ferrara to put that in writing. Ferrara requested a refund of the monies that she had paid to the Pellegrino firm, which Pellegrino refused.
On January 3, 2017, respondent sent Ferrara a text, stating "I sent you a bunch of e-mails so get back to me when you can." Ferrara answered, "As I told Robert this morning I am at work." Respondent answered, "No one told me anything except that you were demanding the petition to be completed and sent to you." Ferrara answered, "You didn't send the petition there's no petition here I have 3 e-mails with one line sentences." Respondent answered that Ferrara should "start with the e-mails;" Ferrara answered that she needed to see the petition and asked whether respondent was refusing to send it to her. Respondent replied that Ferrara should retain another lawyer, adding that Ferrara had filed a bar complaint. Respondent asserted that she would complete the petitions and send them to Pellegrino in five minutes, stating "you guys can figure it out from there I won't take this abuse anymore."
Ferrara replied:
I have text messages from you on December 7th stating that you prepared my petition and sen[t] it to me. Clearly you did not. I was also informed by [Pellegrino] my petition should have been filed 30 days after I paid in full; you told me on the phone on December 8th this was an easy case to trust you that you will have it done within 24 hours and now three weeks later and it's still not done.[C¶31.]
Respondent answered that she had offered to back out weeks before but that the Pellegrino firm would not permit that, and, thus, respondent sent the completed petition to the Florida office. Later, on January 3, 2017, Ferrara corresponded with Pellegrino, who had received the draft petition from respondent and forwarded it to Ferrara for her review. On review, Ferrara noticed errors, including a number of missing items that she previously had supplied to respondent.
By letter dated January 6, 2017, Ferrara asked Pellegrino to assign a new attorney to her case, "due to the circumstances of which you are aware." Five days later, respondent filed a bankruptcy petition and associated schedules in Ferrara's behalf, in the United States Bankruptcy Court for the District of New Jersey. On January 13, 2017, the bankruptcy court sua sponte entered an Order to Show Cause Why Case Should Not be Dismissed for failure to pay the $335 filing fee.
Meanwhile, on January 11, 2017, Ferrara e-mailed Pellegrino, stating, "I have a 3d interview for a job it gonna be 35 to 40 thousand a year. Will I still get approved for bankruptcy 7. This was an issue which is why I am angry, because this should have been over in December and I don't want this to go against me now because I still can't afford anything." The ethics complaint alleged that Ferrara's e-mail was consistent with her recitation of respondent's December 7, 2016 advice.
On January 24, 2017, Hughes sent an e-mail to respondent, asking "did you pay the filing fee for Ferrara using your Debit info yet? Please let me know, if you haven't yet let me know so I can verify account info before you do." The next day, respondent falsely replied, "[y]es I did."
On February 7, 2017, the bankruptcy court entered an order dismissing Ferrara's petition for failure to pay the filing fee. On March 8, 2017, respondent filed a motion to reinstate the case with the bankruptcy court, stating in a certification that "I mistakenly believed that all fees were paid, and documents were filed." The motion was prepared by Renee Beauchamp, a "virtual paralegal," who performed freelance work for respondent.
On March 22, 2017, Beauchamp wrote to respondent to remind her of Ferrara's upcoming hearing in the bankruptcy matter, adding, "[i]t is really important that this is not postponed. The clients need our full attention to keep your license, and because they deserve it. So unless there's a fire, let's try real hard to make sure we are there for them." Eight days later, Ferrara wrote to Beauchamp to thank her for stepping into the matter and to complain about problems with respondent and the Pellegrino firm.
By letter dated April 6, 2017, Ferrara complained to the Assistant U.S. Trustee about respondent, summarized the facts recited above, and asked whether the Assistant U.S. Trustee could refer Ferrara to an attorney who could help her with her case. Ferrara stated, "I have been a victim of bankruptcy attorneys either making me wait a whole year or just not representing me properly and putting me in a very desperate position. I am scared and I really need help." The Trustee did not reply to the letter.
On April 12, 2017, Ferrara exchanged a series of e-mails with Pellegrino. Ferrara told Pellegrino that she had filed a motion to have respondent removed as her counsel (that motion had not yet been filed) and informed him that respondent did not pay the filing fee for her petition, ignored requests from the court to appear at hearings, and lied about having the petition completed in the first place. Pellegrino responded that, although there were issues with respondent, "she is the only partner I have in that area" and requested that Ferrara keep respondent as counsel. Ferrara replied that she was terminating respondent's representation, and that respondent would not object to the motion to remove her. Ferrara noted that she had requested a refund, which Pellegrino continued to refuse.
On April 18, 2017, with Beauchamp's assistance, Ferrara prepared and filed with the bankruptcy court a motion to remove counsel, reciting many of the facts set forth above. Ferrara attached a certification, which provided a more detailed recitation of the facts summarized in the motion and included the assertion that the petition filed on January 11, 2017 "contained so many errors that every document and schedule, except Schedule H, had to be amended," with Beauchamp's help.
On April 21, 2017, a meeting of creditors took place. Ferrara, acting pro se, attended the meeting. On April 25, 2017, the Chapter 7 Trustee issued a report, with "final closure of the proceeding on May 31." On April 24, 2017, Pellegrino finally agreed to refund Ferrara's money.
On June 2, 2017, Pellegrino wrote to respondent about problems with various files, including Ferrara's, noting "I have had to issue one refund so far [Ferrara's] to avoid a Bar complaint and civil prosecution due to the complete failure to timely process [Ferrara's] case."
On December 2, 2019, after Ferrara had filed a grievance against respondent in New Jersey, the DEC mailed to respondent, at her registered address, a "ten-day letter," requesting a reply to Ferrara's grievance. On December 12, 2019, the letter was returned, marked "not deliverable as addressed, unable to forward." On December 17, 2019, pursuant to the local post office's instruction, the DEC re-sent the letter to the same street address, albeit in Sewell rather than Mantua. Still, on December 30, 2019, the letter was returned, marked with the same notation. On that date, the DEC sent respondent another version of the ten-day letter, addressed to her home address of record. On February 19, 2020, the letter sent by certified mail was returned to the DEC, marked "unclaimed" and "doesn't live here."
On January 17, 2020, the DEC called respondent at her mobile telephone number, which had a voice message requesting that callers send an e-mail to her. The DEC sent respondent an e-mail and a text message, alerting her to Ferrara's grievance, and requesting that respondent "get in touch." On February 16, 2020, respondent replied, "I apologize, I am jus[t] seeing this. Please contact me via e-mail. Thank you." On February 21, 2020, the DEC replied, presumably via email, attaching the December 2, 2019 ten-day letter and requesting a reply within ten days.
The next day, respondent replied that she was in a hospital and could not provide an adequate reply to the grievance. Respondent claimed to have a brain tumor and memory loss. In addition, she denied ever telling Ferrara to decline an offer of employment or to stop paying for her car. Finally, respondent asserted that she had "surrendered" her law license.
On February 22, 2020, the DEC informed respondent that she was required to contact the OAE and provide proof of her current status as a hospital inpatient; otherwise, the investigation of the matter would continue. The DEC also corrected respondent's claim that she had "surrendered" her license, pointing out that her license had been suspended, "subject to any request for reinstatement." The DEC asked respondent whether she intended to seek a transfer to disability-inactive status or to file a reply to Ferrara's grievance. Respondent failed to reply to the DEC's letter.
Based on the above allegations, the formal ethics complaint charged respondent with having violated RPC 1.1(a), RPC 1.3, and RPC 1.4(b), by (1) failing to contact Ferrara in a timely manner in respect of the bankruptcy matter; (2) failing to advise Ferrara about the available remedies for redeeming her car after it had been repossessed; (3) incorrectly advising Ferrara to decline a job offer, on the claim that it would adversely impact her ability to file a Chapter 7 petition; (4) failing to timely reply to Ferrara and requiring communications to be primarily via text message; (5) submitting the Chapter 7 petition with numerous mistakes, thus requiring amendment of all but one of the schedules after respondent had been removed as Ferrara's counsel; and (6) effectively abandoning the representation of Ferrara.
In addition, the complaint charged respondent with having violated RPC 1.5(e), for several reasons. First, under the Class B agreement, respondent did not become a member or employee of the Pellegrino firm, but, rather, was an independent contractor. Thus, the complaint alleged, the agreement was "a subterfuge," the purpose of which was to permit respondent to pay a referral fee to the Pellegrino firm, contrary to RPC 1.5(e). Second, respondent failed to secure Ferrara's written agreement to the allocation of responsibility, as RPC 1.5(e)(1) requires, and to notify the client of the fee division, as RPC 1.5(e)(2) requires.
The complaint further charged respondent with having violated RPC 7.1(a), by falsely representing that she was a partner with the Pellegrino firm; RPC 8.1(b), by failing to submit a written reply to Ferrara's grievance; and RPC 8.4(c), by falsely representing to Ferrara that she (1) was a partner with the Pellegrino firm; (2) had prepared a draft Chapter 7 petition weeks before she actually had done so; (3) had not received Ferrara's November 7, 2016 e-mail containing the notice of repossession of Ferrara's car; and, finally, by falsely representing to the Pellegrino firm that she had paid the filing fee for Ferrara's Chapter 7 petition.
MOTION FOR FINAL DISCIPLINE (DRB 20-122; XIV-2019-0313E)
Following a review of the record, we determine to grant the OAE's motion for final discipline. Final discipline proceedings in New Jersey are governed by R. 1:20-13(c). Under that Rule, a criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-13(c)(1); In re Magid, 139 N.J. 449, 451 (1995); In re Principato, 139 N.J. 456, 460 (1995). Respondent's guilty plea to fourth-degree operation of a motor vehicle during period of license suspension, on January 31, 2018, while her license was suspended or revoked for a second or subsequent violation of N.J.S.A. 39:4-50 (DWI), contrary to N.J.S.A. 2C:40-26(b), thus, establishes a violation of RPC 8.4(b). Pursuant to RPC 8.4(b), it is professional misconduct for an attorney to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." Hence, the sole issue is the extent of discipline to be imposed. R. 1:20-13(c)(2); In re Magid, 139 N.J. at 451-52; and In re Principato, 139 N.J. at 460.
In determining the appropriate measure of discipline, we consider the interests of the public, the bar, and respondent. "The primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar." In re Magid, 139 N.J. at 452 and In re Principato, 139 N.J. at 460 (citations omitted). Fashioning the appropriate penalty involves a consideration of many factors, including the "nature and severity of the crime, whether the crime is related to the practice of law, and any mitigating factors such as respondent's reputation, his prior trustworthy conduct, and general good conduct." In re Lunetta, 118 N.J. 443, 445-46 (1989).
That respondent's conduct did not involve the practice of law or arise from a client relationship does not excuse the ethics transgression or lessen the degree of sanction. In re Musto, 152 N.J. 165, 173 (1997). Offenses that evidence ethics shortcomings, although not committed in the attorney's professional capacity, may, nevertheless, warrant discipline. In re Hasbrouck, 140 N.J. 162, 167 (1995). The obligation of an attorney to maintain the high standard of conduct required by a member of the bar applies even to activities that may not directly involve the practice of law or affect his or her clients. In re Schaffer, 140 N.J. 148, 156 (1995).
Based on precedent, a reprimand is the appropriate measure of discipline for respondent's criminal conviction. In In re McLaughlin, 223 N.J. 243 (2015), the first disciplinary case decided after the Legislature enacted N.J.S.A. 2C:40-26, the attorney pleaded guilty to operating a motor vehicle while his driver's license was suspended for driving while intoxicated, contrary to N.J.S.A. 2C:40-26(b). In the Matter of Michael A. McLaughlin, Sr., DRB 14-382 (June 16, 2015) (slip op. at 1-2). He was sentenced to six months in the county jail, to be served concurrently with the terms he was serving for the prior DWI, and was ordered to pay mandatory fines and assessments. Id. at 3.
We remarked that, on the one hand, unlike attorneys in previous DWI cases, McLaughlin "was not involved in a motor vehicle accident, did not harm any other individuals, and was not intoxicated at the time of his arrest." Id. at 7. On the other hand, we considered, in aggravation, the 2004 reprimand that McLaughlin had received for misrepresenting to the Board of Bar Examiners that he had abstained from the use of alcohol. Id. at 8. "Given respondent's disciplinary history for conduct related to his alcohol addiction," we determined to impose a reprimand with conditions. Ibid. The Court agreed.
In In re Dempsey, 240 N.J. 221 (2019), the Court imposed a reprimand on an attorney who pleaded guilty to the same offense as respondent, in addition to driving while intoxicated. In the Matter of Stephen P. Dempsey, DRB 18-380 (June 25, 2019) (slip op. at 1-2). Dempsey's fourth-degree conviction and the DWI were his second violations. Id. at 2. As a result of his intoxication, Dempsey was involved in a motor vehicle accident, although no one was injured. Ibid.
For the fourth-degree crime, Dempsey was sentenced to six months in jail, or, if a room were available, at a residential treatment facility. Id. at 4. The sentencing judge also imposed penalties and fines. Ibid. For the DWI conviction, which was his fourth, the court imposed fines, costs, and surcharges, and suspended Dempsey's license for two years, to run concurrently with any existing suspension, followed by one year's use of an ignition interlock, plus an additional six month in county jail or a residential treatment facility, to be served concurrently. Id. at 4-5.
McLaughlin and Dempsey justify the imposition of a reprimand. Given respondent's failure to submit a brief to us and, thus, the absence of any proof that she is either in treatment for, or recovery from, what appears to be a chronic and debilitating case of alcoholism, there is no basis for imposing less discipline for this aspect of her misconduct. Our ultimate recommendation in respect of the appropriate measure of discipline, however, is based on the totality of respondent's misconduct in all matters before us.
MOTION FOR RECIPROCAL DISCIPLINE (DRB 20-123; XIV-2020-0033E)
Following a review of the record, we determine to grant the OAE's motion for reciprocal discipline. Pursuant to R. 1:20-14(a)(5), "a final adjudication in another court, agency or tribunal, that an attorney admitted to practice in this state . . . is guilty of unethical conduct in another jurisdiction . . . shall establish conclusively the facts on which it rests for purposes of a disciplinary proceeding in this state." Thus, with respect to motions for reciprocal discipline, "[t]he sole issue to be determined . . . shall be the extent of final discipline to be imposed." R. 1:20-14(b)(3).
In Pennsylvania, the standard of proof in attorney disciplinary matters is that the evidence be "sufficient to prove unprofessional conduct if a preponderance of the evidence establishes the conduct and the proof . . . is clear and satisfactory." Office of Disciplinary Counsel v. Kissel, 442 A.2d 217 (Pa. 1982) (citing In re Berland, 328 A.2d 471 (Pa. 1974)). Moreover, "[t]he conduct may be proven solely by circumstantial evidence." Office of Disciplinary Counsel v. Grigsby, 425 A.2d 730 (Pa. 1981) (citations omitted). We note that, in this matter, respondent stipulated, in Pennsylvania, to her violation of the RPCs and the quantum of discipline to be imposed in that jurisdiction.
Reciprocal discipline proceedings in New Jersey are governed by R. 1:20-14(a)(4), which provides in pertinent part:
The Board shall recommend the imposition of the identical action or discipline unless the respondent demonstrates, or the Board finds on the face of the record on which the discipline in another jurisdiction was predicated that it clearly appears that:
(A) the disciplinary or disability order of the foreign jurisdiction was not entered;
(B) the disciplinary or disability order of the foreign jurisdiction does not apply to the respondent;
(C) the disciplinary or disability order of the foreign jurisdiction does not remain in full force and effect as the result of appellate proceedings;
(D) the procedure followed in the foreign disciplinary matter was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(E) the unethical conduct established warrants substantially different discipline.
Subsection (E) applies in this matter because the unethical conduct warrants substantially different discipline.
The OAE's motion for reciprocal discipline charged respondent with having violated the following New Jersey RPCs: 1.1(a); 1.1(b); 1.3; 1.15(b); 1.16(a)(1); 8.1(b); and 8.4(d). The Joint Petition, on which the Supreme Court of Pennsylvania based the suspension, supports most of these charges.
In five of the client matters - Aroche, Schweichler, Manescu, Henderson, and Douglas-Downing - respondent failed to attach to their petitions one or more required documents and/or obtained the clients' signatures on those documents. Notably, in the Manescu matter, respondent failed to comply with the bankruptcy court's order that she file the certificate of credit counseling, thus, resulting in the dismissal of the petition. Although respondent filed the certificate and a motion to vacate the dismissal, she used the wrong form of motion, which she failed to sign. Consequently, the court rejected the motion. Thereafter, respondent filed three successive motions to vacate, all of which were dismissed, without prejudice, for lack of effective notice.
In the Schweichler, Heck, Hadlow, and Douglas-Downing matters, respondent filed the Chapter 7 petitions in the wrong District. She failed to file a motion to transfer the Schweichler petition to the proper District. Notably, the court issued to respondent a rule to show cause why the petition should not be dismissed. In turn, respondent filed, on various dates, four different motions to transfer, each of which the court rejected due to various deficiencies, such as the lack of an actual motion and improper notice. The petition was transferred to the proper District only after the court held a hearing on its rule to show cause.
After respondent failed to file a motion to transfer the Heck petition to the proper District, the court issued a rule to show cause, as it did with the Schweichler petition. Thereafter, respondent filed three deficient transfer motions. Although she eventually filed modified and corrected motions to transfer, and the court ordered the petition transferred, it is not clear whether the transfer was based on the motions or the court's rule to show cause.
In the Hadlow matter, respondent also failed to file a motion to transfer the petition to the proper District until two days before the hearing on the court's rule to show cause. As with Heck, it is unclear whether the transfer was based on the motions or the court's rule to show cause. Similarly, although the court transferred the Douglas-Downing petition, the Joint Petition did not state whether respondent filed a motion to achieve that action.
Respondent violated RPC 1.1(a), RPC 1.1(b), and RPC 1.3 by failing to attach the required documents to the Chapter 7 bankruptcy petitions filed on behalf of five clients, resulting in the dismissal of the Manescu petition, which she then incompetently and unsuccessfully tried to reinstate on four occasions. Further, in the Aroche matter, she failed to appear for the July 25, 2016 initial meeting of creditors and the subsequent meeting, rescheduled to August 8, 2016, and failed to file opposition to the motion to foreclose on Aroche's residence, which was granted.
Respondent violated the same RPCs in respect of three of the four petitions filed in the wrong District, by failing to file motions to transfer until after the court had issued rules to show cause why the petitions should not be dismissed for having been filed in the wrong District, and by filing three deficient motions to transfer the Heck matter and four deficient motions to transfer the Schweichler matter.
Respondent engaged in conduct prejudicial to the administration of justice, a violation of RPC 8.4(d), in the Aroche, Manescu, and Henderson matters. First, in the Aroche and Manescu matters, she failed to appear for the October 13 (Manescu) and November 3, 2016 (Aroche) hearings on the trustee's motions to disgorge. Further, in both matters, respondent failed to attend the rescheduled creditors' meetings, despite court orders that she do so. Moreover, in both matters, respondent failed to attend a December 15, 2016 sanctions hearing, which was scheduled after she had failed to appear for the hearings on the trustee's motions to disgorge.
After the court entered an order, on December 22, 2016, requiring respondent, among other things, to pay a $250 sanction and to appear on January 5, 2017 for the rescheduled sanctions hearing in the Aroche and Manescu matters, she did neither. In the Aroche matter, respondent also failed to appear for rescheduled sanctions hearings on February 23 and March 23, 2017.
On August 2, 2017, the court ordered respondent to appear for yet another rescheduled sanctions hearing in the Aroche and Manescu matters, this time on August 31, 2017. Because she failed to appear, the court set another hearing for September 28, 2017, which she also failed to attend.
After the court adjudged respondent in civil contempt in both matters, she failed to appear for a sanctions hearing rescheduled for January 25, 2018. Finally, on January 30, 2018, respondent appeared for a contempt hearing, but only after the U.S. Marshals arrested her and brought her before the court.
On January 31, 2018, the court entered orders in the Aroche and Manescu matters, requiring respondent, among other things, to refund fees to her clients and to pay a $250 sanction. Respondent only partially repaid Manescu's fee and did not pay the $500 in sanctions. She also failed to pay $276 in outstanding filing fees in Manescu, contrary to the terms of the order.
Finally, in the Henderson matter, respondent failed to comply with the court's December 19, 2016, order requiring her to appear on January 11, 2017 and show cause why the Henderson petition should not be dismissed for failure to pay the filing fee. Consequently, the court dismissed the petition. Fortunately, Henderson's new lawyer succeeded in reopening the petition.
Respondent violated RPC 1.15(b), by failing to disgorge the entire fee to Manescu and by failing to refund the $276 filing fee.
In the other matters, respondent failed to cooperate with the ODC, by ignoring the DB-7 letter and the ODC's subsequent attempts to seek her compliance, a violation of RPC 8.1(b).
We dismiss the RPC 1.16(a)(1) charge. That Rule requires a lawyer to refrain from undertaking the representation of a client or, after representation has commenced, to withdraw from the representation if representation will violate the Rules of Professional Conduct or other law. Here, respondent's mere representation of her bankruptcy clients did not violate the RPCs. The fact that respondent mishandled the representations, in violation of certain RPCs, did not render the representations themselves a violation of the RPCs.
The applicable Rule is RPC 1.16(a)(2), which prohibits an attorney from undertaking, or, after the representation has commenced, requires withdrawal, if "the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client." This Rule was not charged, however, and, thus, we may not find a violation.
In addition to the violations in the above client matters, respondent violated RPC 8.1(b) and RPC 8.4(d).
As to mitigation in the Aroche, Schweichler, and Manescu matters, the Joint Petition cited respondent's alcoholism and the marital, domestic violence, and child custody issues that she was experiencing during that timeframe.
Attorneys who mishandle multiple client matters generally receive suspensions of either six months or one year. See, e.g., In re Tunney, 181 N.J. 386 (2004) (six-month suspension for attorney who mishandled six matters, engaging in a combination of gross neglect, pattern of neglect, lack of diligence, failure to communicate, failure to promptly notify a client of receipt of funds, failure to properly terminate representation, knowingly disobeying an obligation under the rules of a tribunal, misrepresentation, and conduct prejudicial to the administration of justice; attorney's depression considered in mitigation; prior reprimand) and In re Suarez-Silverio, 226 N.J. 547 (2016) (one-year suspension for an attorney who, over thirteen years, mishandled twenty-three client matters before the Third Circuit Court of Appeals, many of which ended by procedural termination; the attorney also disobeyed court orders and made a misrepresentation to the court clerk, which escalated the otherwise appropriate six-month suspension; previous admonition and reprimand for similar conduct).
Based on the above precedent, at a minimum, a six-month suspension is appropriate for respondent's mishandling of the seven bankruptcy matters during a twenty-month period (July 2016 to March 2018). However, respondent's violation of RPC 8.4(d), including her failure to comply with the multitude of court orders, was so egregious that, in our view, a two-year suspension is required. We compare her conduct to that of the attorney in In re Yacavino, 184 N.J. 389 (2005).
In In re Yacavino, the attorney was involved in five lawsuits arising out of family and business disputes. In the Matter of Vincent M. Yacavino, DRB 04-426 (April 21, 2005) (slip op. at 3). Yacavino, who represented himself, was a plaintiff in four of the actions and a defendant in the fifth. Ibid. He was suspended for six months for, among other things, filing frivolous claims, failing to expedite litigation, and engaging in conduct prejudicial to the administration of justice by taxing the court's resources. Specifically, he violated RPC 3.1 (barring a lawyer from asserting frivolous claims and defenses) when, in two of the matters, he "repeatedly filed the same claims after the court dismissed them on the merits" and, in the fifth matter, he asserted claims that had been dismissed previously in the third and fourth matters. Id. at 31, 33-34. Moreover, by repeatedly raising the same issues that had been adjudicated, among other things, Yacavino failed to expedite litigation, a violation of RPC 3.2. Id. at 34. Finally, Yacavino's multiple complaints "taxed the court's resources" because they re-asserted the same claims that previously had been dismissed, a violation of RPC 8.4(d). Id. at 37-38.
In imposing a six-month suspension, we took into account Yacavino's unblemished career of more than forty years and the fact that the ethics charges stemmed from his conduct in "a series of emotionally-charged family lawsuits prompted by his steadfast conviction that his wife's parents and brothers, through various means, intentionally deprived [him] and his immediate family of funds, property, and other assets to which he believed they were entitled." Id. at 48. Indeed, in our view, Yacavino's belief was "not entirely erroneous," as he was granted summary judgment on some of the claims in two of the lawsuits. Id. at 48-49. Other mitigating factors included the absence of client harm and Yacavino's increasing frustration "by his perception that the court was denying him critical discovery and, that by not ruling on his motions for discovery, the court deprived him of the opportunity to file interlocutory appeals." Id. at 49. Finally, Yacavino had "lost all perspective concerning the litigation" and was not motivated by venality but, rather, by his belief that he was right. Ibid.
Here, the impact of respondent's conduct on the administration of justice far surpasses that of the attorney in Yacavino. As described above, in the Aroche and Manescu matters, she failed to appear for a hearing on the motion to disgorge her fee. Thereafter, she flouted six court orders, requiring her to appear for a sanctions hearing, arising from her failure to appear on the original return date and subsequent rescheduled dates. Indeed, when she finally appeared for a hearing, it was because the U.S. Marshals arrested her and transported her to the courthouse. Respondent also failed to comply with a court order requiring her to attend a creditors meeting.
Further, in the Henderson matter, respondent failed to comply with the court's order to show cause why that petition should not be dismissed for failure to pay the filing fee. Consequently, the court dismissed the petition.
Here, there is insufficient mitigation to save respondent from the disciplinary consequence of her conduct. Unlike the attorney in Yacavino, she was not embroiled in family conflicts, and her conduct cannot be explained away by a lack of perspective. Although, at the time of the incidents, she had an unblemished disciplinary record of ten years, that is hardly comparable to the forty years enjoyed by Yacavino. Finally, as we noted above, although alcoholism may be considered in mitigation of an attorney's conduct, in this case, respondent has failed to submit a brief to us or any proof that she is either in treatment for, or recovery from, what appears to be a chronic and debilitating case of alcoholism.
For the above reasons, if we were considering the motion for reciprocal discipline in isolation, for the totality of respondent's misconduct, particularly the egregious waste of judicial resources, a two-year suspension would be the quantum of discipline necessary to protect the public and preserve confidence in the bar. This matter is not before us in isolation, however, and, thus, we determine to impose discipline on respondent based on the totality of her misconduct on all matters before us.
THE DEFAULT MATTERS
In respect of the five New Jersey ethics matters in which respondent defaulted, we find that the facts recited in the complaints support most of the charges of unethical conduct. Respondent's failure to file answers to the complaints is deemed an admission 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 complaints must be supported by sufficient facts for us to determine that unethical conduct has occurred.
THE IRIS TOWNSEND MATTER (DRB 20-210; IV-2018-0058E)
In the Iris Townsend bankruptcy matter, respondent violated RPC 1.1(a) and RPC 1.3 in several respects. She repeatedly failed to represent Townsend's interests in the manner expected of attorneys in this state, by filing a deficient petition in bankruptcy in Townsend's behalf; failing to correct the deficiencies; and allowing Townsend's petition to be dismissed for reasons that never should have arisen - that is, the failure to file the required supporting documents or to attend the creditors' meeting. Thereafter, she failed to take any curative action to seek reinstatement of the petition, even in the face of the looming sale of Townsend's car, and abandoned the matter altogether. As a result of respondent's deficiencies, Townsend handled her own bankruptcy case.
In the second court proceeding, respondent failed to appear for a hearing, which left Townsend unrepresented and in the position of paying a bill that she had intended to dispute. Respondent, thus, violated RPC 1.1(a) and RPC 1.3.
Respondent violated RPC 1.4(b) by ceasing all communication with her client in the bankruptcy matter. When the DEC forwarded Townsend's grievance to respondent and requested a written reply within ten days, respondent failed to submit any reply, despite having received an extension, which she requested, a violation of RPC 8.1(b). Moreover, respondent failed to file an answer to the complaint, in further violation of RPC 8.1(b).
Making matters worse, respondent told Townsend that she had filed a motion to reinstate the bankruptcy petition, which was not true. Respondent, thus, violated RPC 8.4(c).
We dismiss the RPC 8.4(d) charge, however. In this case, there is no evidence that respondent's conduct compromised the administration of justice or wasted judicial resources. In the bankruptcy matter, although respondent's inaction placed Townsend's vehicle in jeopardy, there is no allegation within the four corners of the complaint that points to the compromising of the administration of justice or the wasting of judicial resources. Respondent filed a deficient bankruptcy petition; the court dismissed it; and she took no further action.
In respect of the second matter, although respondent agreed to represent Townsend at a hearing, there is no evidence that she had entered a formal appearance in the matter. Further, the proceeding took place without respondent and, thus, her absence did not delay the matter. To be sure, the legal issue appears not to have been resolved in Townsend's favor, but the court was unaffected by respondent's failure to attend.
Finally, respondent's failure to keep Townsend apprised of the status of the matter was a violation of RPC 1.4(b), not RPC 8.4(d). Her alleged abandonment of the client during the proceedings would have constituted a violation of RPC 1.16(d) (upon termination of representation, failure to take steps to the extent reasonably practicable to protect a client's interests), but the complaint did not charge respondent with a violation of that Rule.
In sum, we find that respondent violated RPC 1.1(a) (two instances) and RPC 1.3 (two instances); RPC 1.4(b); RPC 8.1(b) (two instances); and RPC 8.4(c). We dismiss the charged violations of RPC 8.4(d).
THE ZIA SHAIKH MATTER (DRB 20-252; IV-2017-0019E)
Respondent violated RPC 1.1(a) and RPC 1.3 by failing to oppose the motion for pendente lite relief and failing to request an adjournment, thus leaving the motion unopposed.
RPC 3.3(a)(1) and RPC 4.1(a)(1), respectively, prohibit attorneys from making false statements of material fact to a tribunal and to a third person. Respondent violated these Rules when she denied, to both Judge Einbinder and Zabarsky, that she had received notice of the case management conference.
RPC 1.5(b) requires a lawyer who has not regularly represented a client to communicate to the client, in writing, the basis or rate of the fee, either before or within a reasonable time after commencing the representation. Although the complaint contained allegations concerning respondent's representation of Zia in a business matter, RPC 1.5(b) was not charged in connection with that representation. Rather, the charge was limited to respondent's failure to provide Zia with a written retainer agreement in the subsequent matrimonial matter.
Rule 5:3-5(a) requires "every agreement for legal services to be rendered in a civil family action . . . [to] be in writing signed by the attorney and the client." We have consistently held that failure to comply with that Rule is a per se violation of RPC 1.5(b), and the Court has agreed. Respondent had no retainer agreement in place for the matrimonial representation. She, thus, violated the RPC.
We dismiss the remaining charges. First, a pattern of neglect, in violation of RPC 1.1(b), requires at least three instances of neglect, in three distinct client matters. See In the Matter of Donald M. Rohan, DRB 05-062 (June 8, 2005) (slip op. at 12-16). Here, the allegations of neglect dealt exclusively with Zia's matter and, thus, are insufficient to support a finding that respondent engaged in a pattern of neglect. Consequently, we dismiss the RPC 1.1(b) charge.
Second, RPC 1.16(b)(1) permits a lawyer to withdraw from the representation of a client if the withdrawal can be accomplished without material adverse effect on the interests of the client. Here, although the complaint alleged that, on the day before argument on Laura's motion for pendente lite relief, respondent stated her intention to withdraw from representing Zia, the complaint contained no allegation that she actually sought to do so, either verbally or by way of a motion. Thus, we dismiss the charge.
In sum, we find that respondent violated RPC 1.1(a); RPC 1.3; RPC 1.5(b) (one instance); RPC 3.3(a)(1); RPC 4.1(a)(1); and RPC 8.1(b) (for her failure to file an answer to the complaint). We dismiss the charged violations of RPC 1.1(b) and RPC 1.16(b)(1).
FAILURE TO FILE AFFIDAVIT OF COMPLIANCE REQUIRED BY R. 1:20-20 (DRB 20-270; XIV-2019-0444E)
R. 1:20-20(b)(15) requires a suspended attorney, within thirty days of the order of suspension, to "file with the Director [of the OAE] 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." Among the correlatively numbered paragraphs are paragraphs (10) and (11), which require the attorney to notify all clients of the suspension and, in pending litigation or administrative matters, all adversaries, and to return client files, if requested.
In the absence of an extension by the Director of the OAE, failure to file an affidavit of compliance pursuant to R. 1:20-20(b)(15) within the time prescribed "constitute[s] a violation of RPC 8.1(b) . . . and RPC 8.4(d)." R. 1:20-20(c). Thus, respondent's failure to file the affidavit is a per se violation of RPC 8.1(b) and RPC 8.4(d). Moreover, respondent committed a separate violation of RPC 8.1(b) by defaulting in this matter.
THE RECORDKEEPING MATTER (DRB 20-279; XIV-2018-0395E)
RPC 1.15(a) requires an attorney to keep his or her property separate from the property of clients or third persons that are in the attorney's possession. Respondent violated the Rule by depositing attorneys' fees and payments for costs in her trust account, contrary to R. 1:21-6(a)(1).
RPC 1.15(d) requires an attorney to comply with the recordkeeping provisions of R. 1:21-6. Respondent violated the RPC by failing to maintain a separate attorney business account, as R. 1:21-6(a)(2) requires.
Finally, respondent violated RPC 8.1(b) by repeatedly ignoring the OAE's attempts to obtain her cooperation with its investigation of the overdrafts in her trust account, as well as its offers to discuss with respondent the possibility of placing her law license on disability-inactive status, and by failing to file an answer to the ethics complaint.
In sum, respondent violated RPC 1.15(a), RPC 1.15(d), and RPC 8.1(b) (three instances).
THE NICOLE FERRARA MATTER (DRB 20-327; IV-2019-0052E)
As charged in the complaint, respondent violated RPC 1.1(a) and RPC 1.3 by (1) failing to timely advance Ferrara's case after it was assigned to her, in September 2016; (2) failing to inform Ferrara of the available remedies for redeeming her car after its repossession; (3) incorrectly advising Ferrara not to accept a particular offer of employment on the ground that it would adversely affect her ability to file a Chapter 7 bankruptcy petition; and (4) submitting a bankruptcy petition containing numerous mistakes, thus requiring amendment of all but one of the schedules. Respondent also failed to pay the filing fee for the petition, resulting in its dismissal.
Although the complaint alleged that respondent violated RPC 1.1(a) by effectively abandoning Ferrara's representation, client abandonment is not a matter of gross neglect, but rather is a violation of RPC 1.16(d), which was not charged in connection with this client matter. Despite respondent's obvious neglect of Ferrara's case, Ferrara was able to communicate with her, albeit with great difficulty at times. Thus, we cannot find that respondent abandoned Ferrara.
In addition, respondent's failure to reply to Ferrara in a timely manner was not gross neglect, but rather a failure to communicate with her. The allegations of the complaint clearly and convincingly establish the RPC 1.4(b) charge. Respondent either delayed in replying to, or ignored, many of Ferrara's communications, which resulted in great harm to the client, specifically, the repossession of Ferrara's car.
RPC 1.5(e) prohibits the division of fees between lawyers who are not in the same firm unless certain requirements are met. In particular, the client must be notified of, and consent to, the fee sharing. See RPC 1.5(e)(2) and (3). Based on the allegations of the complaint, respondent and the Pellegrino firm did neither. There is no evidence that Ferrara knew that the $1,500 fee would be divided by the two law firms. Respondent, thus, violated RPC 1.5(e)(2) and (3).
Further, the Class B agreement failed to satisfy the provisions of RPC 1.5(e)(1), which requires the division of fees to be in proportion to the services performed by each lawyer. To the contrary, the agreement between the Pellegrino firm and respondent identified respondent as the Pellegrino firm's independent contractor, who was paid a $450 flat fee for her services.
Respondent's claim that she was a Pellegrino firm partner violated RPC 7.1(a), which prohibits a lawyer from making false communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement. As stated above, respondent was not a partner in the Pellegrino firm; rather, she was an independent contractor.
Respondent failed to cooperate with the DEC in a multitude of ways, in violation of RPC 8.1(b). When the DEC failed in its attempts to serve her with the Ferrara grievance by mail, the DEC followed the instruction on her voice mail greeting to contact her by e-mail. Yet, when the DEC sent the grievance to her by e-mail, respondent replied that she could not comply because she was in the hospital, suffering from a brain tumor and memory loss. Despite her professed inability to reply to the grievance, respondent was capable of denying that she had advised Ferrara against accepting a job offer and of claiming that she had "surrendered" her law license. Thereafter, respondent went silent, neither acting on the DEC's directive that she contact the OAE and provide proof of her hospitalization nor submitting a written reply to the grievance. Respondent ignored the ethics complaint as well, by failing to file an answer to the pleading.
Finally, respondent made multiple misrepresentations, in violation of RPC 8.4(c). She misrepresented to Ferrara that she was a partner in the Pellegrino firm and that she had prepared a draft bankruptcy petition, which she did not prepare until weeks later. She denied having received Ferrara's November 7, 2016 e-mail, informing respondent that her car had been repossessed, and she misrepresented to the Pellegrino firm that she had paid the filing fee for Ferrara's petition.
In sum, we find that respondent violated RPC 1.1(a); RPC 1.3; RPC 1.4(b); RPC 1.5(e); RPC 7.1(a); RPC 8.1(b) (two instances); and RPC 8.4(c) (two instances).
In the aggregate, respondent violated the following Rules: RPC 1.1(a) and RPC 1.3 (five instances); RPC 1.1(b); RPC 1.4(b) (two instances); RPC 1.5(b) and (e); RPC 7.1(a); RPC 1.15(a); RPC 1.15 (b) and (d); RPC 3.3(a)(1); RPC 4.4(a)(1); RPC 8.1(b) (eleven instances); RPC 8.4(b); RPC 8.4(c) (three instances); and RPC 8.4(d) (two instances). There remains for determination the appropriate measure of discipline to impose on respondent for her ethics infractions.
Conduct involving the failure to memorialize the basis or rate of a fee, as RPC 1.5(b) requires, typically results in an admonition, even if accompanied by other, non-serious ethics offenses. See, e.g., In the Matter of Peter M. Halden, DRB 19-382 (February 24, 2020) (attorney failed to set forth in writing the basis or rate of the legal fee, and failed to abide by the client's decisions concerning the scope of the representation; no prior discipline); In the Matter of Kenyatta K. Stewart, DRB 19-228 (October 22, 2019) (attorney failed to set forth in writing the basis or rate of the legal fee, and engaged in a concurrent conflict of interest; no prior discipline); and In the Matter of Alan Monte Kamel, DRB 19-086 (May 30, 2019) (attorney failed to provide the client with a writing setting forth the basis or rate of his fee in a collection action, failed to communicate with the client, and failed to communicate the method by which a contingent fee would be determined; no prior discipline). Thus, an admonition is the appropriate form of discipline for respondent's failure to provide Shaikh with a written retainer agreement in the matrimonial matter.
In 2013, the Court imposed a censure on an attorney who violated RPC 1.5(e) by referring 111 cases to another attorney whose office was located in the same building and receiving one-third of the total legal fees collected by that attorney. In re Beckerman, 213 N.J. 280 (2013). Here, respondent engaged in an unlawful fee arrangement in only one matter, Ferrara. However, none of Beckerman's clients were harmed, and Beckerman acknowledged his wrongdoing by entering into a stipulation with the OAE. As stated above, Ferrara suffered great harm as the result of respondent's incompetent representation in the bankruptcy case.
Although respondent violated RPC 7.1(a) by telling Ferrara that she was a partner with the Pellegrino firm, the nature of the violation was more akin to RPC 8.4(c), as respondent's claim was not part of a quest to seek clients by way of solicitation or advertising. Ordinarily, a reprimand is imposed on an attorney who knowingly makes a false statement of material fact to a client, a third person, or a court. See, e.g., In re Kasdan, 115 N.J. 472, 488 (1989) (attorney misrepresented to a client the status of a lawsuit); In re Lowenstein, 190 N.J. 58 (2007) (attorney failed to inform an insurance company that a defendant in a lawsuit had reduced its lien, on the belief that, if he disclosed that information, the insurance company would have no incentive to increase its settlement offer); and In re Kantor, 165 N.J. 572 (2000) (attorney misrepresented to a municipal court judge that the attorney's vehicle was insured on the date it was involved in an accident when, in fact, the policy had lapsed for nonpayment of premium). Thus, for respondent's single misrepresentation to Judge Einbinder and Zabarsky about the case management conference, a reprimand is in order. Respondent's misrepresentations did not end there, however.
Respondent made multiple misrepresentations to her client Townsend. She failed to tell Townsend that her bankruptcy petition had been dismissed; repeatedly misrepresented that she would file a motion to reinstate the petition; and misrepresented that she had filed the motion. To her client, Ferrara, respondent misrepresented that she was a partner in the Pellegrino firm and that she had prepared a draft bankruptcy petition, which she did not prepare until weeks later. She also denied having received Ferrara's November 7, 2016 email, informing respondent that her car had been repossessed, and she misrepresented to the Pellegrino firm that she had paid the filing fee for Ferrara's petition. The scope of respondent's misrepresentations warrants at least a censure.
The threshold measure of discipline imposed for an attorney's failure to file a R. 1:20-20(b)(15) affidavit is a reprimand. 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). The actual discipline imposed may be different, however, if the record demonstrates mitigating or aggravating circumstances. Ibid. Examples of aggravating factors include the attorney's failure to answer the complaint, the existence of a disciplinary history, and the attorney's failure to follow through on his or her promise to the OAE that the affidavit would be forthcoming. Ibid.
In Girdler, the attorney received a three-month suspension, in a default matter, for his failure to comply with R. 1:20-20(b)(15). Specifically, after prodding by the OAE, Girdler 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 prior private reprimand, a reprimand, and a three-month suspension in a default matter.
Since Girdler, the discipline imposed on attorneys who have failed to comply with R. 1:20-20 and who have defaulted has ranged from a censure to a six-month suspension, if they do not have an egregious ethics history. See, e.g., In re Stasiuk, 235 N.J. 327 (2018) (censure; attorney failed to file the affidavit after he had been temporarily suspended for failure to comply with the Court's Order requiring him to return a client's fee; he also ignored the OAE's request that he do so; prior censure in a default matter); In re Kinnard, 220 N.J. 488 (2015) (censure; ethics history included an admonition and a temporary suspension; no prior defaults); In re Rak, 214 N.J. 5 (2013) (three-month suspension; aggravating factors included three default matters against the attorney in three years (two of the defaults were consolidated and resulted in a three-month suspension, the third resulted in a reprimand) and the OAE personally left additional copies of its previous letters about the affidavit, as well as the OAE's contact information, with the attorney's office assistant, after which the attorney still did not comply); and In re Rosanelli, 208 N.J. 359 (2011) (six-month suspension for attorney who failed to file the affidavit after a temporary suspension in 2009 and after a three-month suspension in 2010, which proceeded as a default; prior six-month suspension).
A one-year suspension has been imposed in default matters where the attorneys' ethics histories were more egregious. See, e.g., In re Rifai, 213 N.J. 594 (2013) (following two three-month suspensions in early 2011, one of which proceeded as a default, attorney failed to file the affidavit; his ethics history also included two reprimands) and In re Wargo, 196 N.J. 542 (2008) (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 matters proceeded on a default basis).
More serious discipline, a two-year and a three-year suspension, respectively, was imposed in the following default cases: In re Brekus, 208 N.J. 341 (2011) (significant ethics history: a 2000 admonition, a 2006 reprimand, a 2009 one-year suspension, a 2009 censure, and a 2010 one-year suspension; the 2010 discipline was based on a default) and In re Brekus, 220 N.J. 1 (2014) (egregious disciplinary history consisted of an admonition; a reprimand; a censure; two one-year suspensions, one of which proceeded as a default; and a two-year suspension, which also resulted from a default). See also In re Kozlowski, 192 N.J. 438 (2007) (two-year suspension; attorney's significant ethics 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 towards the ethics system" was found to be "beyond forbearance;" In the Matter of Theodore F. Kozlowski, DRB 06-211 (November 16, 2006) (slip op. at 11-12)).
Standing alone, respondent's failure to file the affidavit of compliance required by R. 1:20-20(b)(15) warrants a censure.
Recordkeeping irregularities ordinarily are met with an admonition where, as here, they have not caused a negligent misappropriation of clients' funds. See In the Matter of Andrew M. Newman, DRB 18-153 (July 23, 2018) (attorney failed to maintain trust or business account cash receipts and disbursements journals, proper monthly trust account three-way reconciliations, and proper trust and business account check images) and In the Matter of Eric Salzman, DRB 15-064 (May 27, 2015) (after an overdraft in the attorney trust account, an OAE demand audit revealed that the attorney (1) did not maintain trust or business receipts or disbursements journals, or client ledger cards; (2) made disbursements from the trust account against uncollected funds; (3) withdrew cash from the trust account; (4) did not properly designate the trust account; and (5) did not maintain a business account, in violation of RPC 1.15(d) and R. 1:21-6).
Similarly, commingling of an attorney's personal funds with trust account funds will be met with an admonition. See In the Matter of Richard P. Rinaldo, DRB 18-189 (October 1, 2018) (commingling of personal loan proceeds in the attorney trust account, in violation of RPC 1.15(a); recordkeeping violations also found; the commingling did not impact client funds in the trust account) and In the Matter of Richard Mario DeLuca, DRB 14-402 (March 9, 2015) (the attorney had a trust account shortage of $1,801.67; because the attorney maintained more than $10,000 of earned legal fees in his trust account, no client or escrow funds were invaded; the attorney was guilty of commingling personal and trust funds and failing to comply with recordkeeping requirements).
Based on precedent, respondent is subject to a reprimand for the misconduct in the Townsend, Ferrara, and Shaikh matters; an admonition for her failure to provide Shaikh with a written retainer agreement in the matrimonial matter; an admonition for the recordkeeping violations and commingling; a censure for her misrepresentations to Judge Einbinder, Zabarsky, Townsend, Ferrara, and Pellegrino; and a censure for her failure to file the affidavit of compliance. Yet, we also must consider respondent's obstinate refusal to participate, in any way, in the disciplinary process.
Despite the differences among the five separate ethics matters brought against respondent, there is one common thread: respondent's utter contempt for the disciplinary system. First, she consistently ignored and refused to reply to the DEC's and the OAE's requests for information, including the submission of written replies to the grievances. As she did in Brown I, respondent refused, time and again, to reply to the DEC's and the OAE's requests for written replies to grievances. Moreover, in the recordkeeping matter, she ignored the OAE's requests for information about her attorney accounts, thus forcing the OAE to obtain as much information as it could from TD. Although admonitions or reprimands typically are imposed for failure to cooperate with disciplinary authorities, respondent's misconduct in these five matters was uniquely egregious.
Respondent did not simply ignore the DEC's and OAE's requests for information and written replies to the grievances. At times, she conveyed the impression that she would cooperate, if certain conditions were met, such as a sixty-day extension to submit a reply to the grievance (Townsend) or correspondence via e-mail only (Ferrara). Yet, the net result of any such accommodation by disciplinary authorities was respondent's continued non-cooperation.
The DEC and OAE made exhaustive efforts to gain respondent's cooperation. The OAE even attempted to intervene on her behalf to have respondent's law license placed on disability-inactive status. Yet, at every step of the way, she rebuffed all attempts on the part of disciplinary authorities to seek her cooperation or to offer her assistance.
As she did in Brown I, respondent continues to default. "[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). Her total lack of interest in conforming her conduct in any way to the standards imposed on, and regulations governing, attorneys who have been granted the privilege of practicing law in this State can be considered nothing other than the clearest of indications that she has no desire to practice law in New Jersey.
To guide us in determining the appropriate measure of discipline to impose in this matter, we refer to the string of cases involving Russell T. Kivler, a serial defaulter whom the Court disbarred in 2009. In re Kivler, 197 N.J. 255 (2009) (Kivler V). Prior to Kivler's disbarment, he had received two reprimands (Kivler I and Kivler II), a three-month suspension (Kivler III), and a three-year suspension (Kivler IV) in four disciplinary matters, three of which had proceeded by way of default. In re Kivler, 193 N.J. 332, 335-38, 344 (2008) (Kivler IV). Each of the four matters involved an individual client, with the exception of one grievance, which a married couple had filed. Id. at 332, 335-38. Of note, we recommended a one-year suspension in Kivler IV, but the Court suspended Kivler for three years after he failed to appear on the Court's Order to Show Cause. Id. at 343-44.
The last straw for Kivler came in Kivler V, a matter involving eight defaults, in which we recommended that he be disbarred for his "repeated refusal to conform his conduct to the standards governing New Jersey attorneys and to cooperate with disciplinary authorities and participate in the disciplinary process." In the Matters of Russell T. Kivler, DRB 08-155; 08-156; 08-159; 08-167; 08-244; 08-245; 08-246; and 08-247 (October 21, 2008) (slip op. at 2). Seven of the eight matters involved the same fact pattern: Kivler's receipt of retainers from clients whom he had agreed to represent; his failure to perform any work for them; his failure to communicate with them; his refusal to refund their retainers; and his failure to cooperate with disciplinary authorities by refusing to submit written replies to the grievances and participate in the district ethics committee's investigations. Ibid. The eighth matter arose from Kivler's failure to file an affidavit of compliance with R. 1:20-20 following the 2007 three-month suspension. Ibid.
At the time of our recommended disbarment, Kivler had been suspended for nearly two years. Id. at 3. Further, we noted that, in Kivler IV, the Court had characterized Kivler's behavior as demonstrating "a significant lack of regard for the disciplinary process in general and for [the] Court in particular," which "called for 'a significant increase in the sanction' that ordinarily would have been imposed for his misconduct," to wit, a three-year suspension. Id. at 31.
By the time that Kivler V reached us, we noted that the maximum term of suspension "was not enough to garner his attention or respect for ethics authorities," as Kivler continued to "scoff at the disciplinary system" and ignore ethics complaints filed against him, thus leading us to conclude that he was "unsalvageable." Id. at 36-37. In our view, Kivler was "unfit to practice law and has demonstrated an overwhelming lack of interest in the profession and in his clients' well-being." Ibid.
We concluded:
In sum, we recommend that respondent be disbarred for his refusal to conform his conduct to the standards governing attorneys in New Jersey, his repeated refusal to cooperate with disciplinary authorities and participate in the disciplinary process, his abysmal indifference to his clients' welfare, and his utter contempt for all arms of the disciplinary system.[Ibid.]
Here, respondent has not yet been formally disciplined in Brown I, and the motions for final and reciprocal discipline matter are only now before us. Yet, the records in those matters, in addition to the default matters, establish conclusively that respondent is a detriment to the profession. She either refuses to provide, or is incapable of providing, her clients with even a rudimentary level of competent representation. She lacks respect for her clients, judges, and other lawyers, to whom she either lies or ignores, or both.
Further, respondent has no regard for the disciplinary system with which she is duty-bound to cooperate but rebuffs at every turn. Most appalling, she has contempt for the Court, which has extended to her the privilege of practicing law in this State, along with the attendant responsibilities that seemingly are beneath her. After obtaining an adjournment of the original date for oral argument before the Court in Brown I, she failed to appear on the date scheduled for her convenience.
Respondent has demonstrated a dangerous habit of undertaking the representation of vulnerable clients and utterly failing them, in some cases to their detriment, and lying to them. She also has a long history of snubbing courts (Brown I and the motion for reciprocal discipline) and, in this jurisdiction, disciplinary authorities.
We are not unmindful of what appears to be respondent's serious substance abuse issue involving alcohol. However, in light of her inability or refusal to address this issue, despite the OAE's offer of assistance; the adverse consequences suffered by multiple clients, in Pennsylvania and New Jersey; and her contemptuous conduct toward the courts, we reach the conclusion that she must be removed from the practice of law in order to protect the public and preserve confidence in the bar. We, thus, recommend to the Court that respondent be disbarred.
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.
Argued: October 15, 2020 (20-122 and 20-123)
Decided: May 20, 2021
Disposition: Disbar
Members
Disbar
Recused
Did Not Participate
Clark
X
Boyer
X
Gallipoli
X
Hoberman
X
Joseph
X
Petrou
X
Rivera
X
Singer
X
Zmirich
X
Total:
9
0
0