Opinion
Docket No. DRB 17-282
01-22-2018
IN THE MATTER OF HERCULES PAPPAS AN ATTORNEY AT LAW
Disciplinary Review Board
District Docket No. IV-2016-0037E Decision
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us by way of default filed by the District IV Ethics Committee (DEC), pursuant to R. 1:20-4(f). The complaint charged respondent with violations of RPC 5.5(a)(1) (engaging in the unauthorized practice of law) and RPC 8.1(b) (failure to cooperate). For the reasons set forth below, we determine to impose a reprimand.
Respondent was admitted to the New Jersey bar in 1997, to the Pennsylvania bar in 1998, and to the New York bar in 2009. He has no history of discipline in New Jersey.
Service of process was proper in this matter. On May 16, 2017, the DEC sent a copy of the complaint to respondent's law office, in Haddonfield, New Jersey, by both regular and certified mail, return receipt requested. On May 17, 2017, Alice Bider signed for the certified mail. The regular mail was not returned.
On June 13, 2017, the DEC sent respondent a letter, by regular mail, informing him that, if he failed to file a verified answer to the complaint within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the entire record would be certified directly to us for the imposition of discipline, and the complaint would be deemed amended to include a violation of RPC 8.1(b). The regular mail was not returned.
The time within which respondent may have answered has expired. As of the date of the certification of the record, no answer had been filed by or on behalf of respondent.
The facts, as alleged in the complaint, are as follows. In 2014, respondent represented an individual in a bankruptcy proceeding in the United States Bankruptcy Court, Eastern District of Pennsylvania (EDPA). On September 10, 2014, in connection with a motion filed by the trustee, the bankruptcy judge issued an order requiring respondent to complete six hours of continuing legal education (CLE) credits within the bankruptcy subject matter, with at least one of those credits related to bankruptcy ethics.
A copy of the order was not provided with the complaint; therefore, additional details, such as the judge's name, are unknown. --------
The order further enjoined respondent from filing bankruptcy cases or otherwise participating in bankruptcy cases "in the District, or any other District where he may be licensed. (Although he shall be permitted to complete and participate in the above caption [sic] matter.)" That prohibition was to remain in place until respondent certified to the court that he had completed the required CLE credits.
Subsequently, on October 28, 2015, respondent filed a Chapter 7 petition in the United States Bankruptcy Court, District of New Jersey, in Camden (DNJ). Thereafter, on March 30, 2016, also in the DNJ, respondent filed a Chapter 11 petition. At the time he filed these two petitions in New Jersey, respondent had not yet complied with the order entered by the bankruptcy court in the EDPA. According to the terms of the order, respondent's failure to comply with the CLE requirements set forth therein rendered him ineligible to practice in the DNJ.
On September 30, 2016, the DEC sent a letter to respondent, notifying him of the investigation of the grievance filed against him, and requesting a written reply, along with any documents that would assist in the investigation. On November 4, 2016, respondent telephoned the investigator, indicating that he was having telephone problems and had been ill. During that call, he provided the investigator with general information pertaining to the grievance, but stated he would provide a written response.
Several weeks later, the investigator, by letter, reminded respondent that his reply was required and set a deadline of seven days for respondent to submit it. On January 19, 2017, having received nothing from respondent, the investigator sent a follow up letter regarding his failure to cooperate and, once again, giving him seven days to comply. Respondent made no further contact with the investigator after his November 4, 2016 telephone call, and failed to comply with the investigator's requests for information.
* * *
Respondent's failure to file an answer is deemed an admission that the allegations of the complaint are true and that they provide a sufficient basis for the imposition of discipline. R. 1:20-4(f)(1). Notwithstanding that Rule, each charge in an ethics complaint must be supported by sufficient facts for us to determine that unethical conduct occurred. In this matter, the complaint supports only one of the charges set forth therein.
Aside from a single phone call, on November 4, 2016, respondent failed to respond to the DEC investigator's requests for information, failed to reply in writing to the ethics grievance, and failed to provide any documents that would assist in the investigation. Respondent's failure to cooperate with the investigation into this matter violated RPC 8.1(b).
What remains is the more complicated issue of respondent's alleged unauthorized practice of law. From this allegation, the question arises as to whether the bankruptcy judge in the EDPA had the authority to enjoin an attorney from practicing in a district other than the EDPA (the judge's order enjoined respondent from filing bankruptcy cases in the EDPA "or any other District where he may be licensed").
Clearly, as a threshold issue, the judge in the EDPA had the authority to enjoin respondent from practicing in the EDPA. Although no specific rule or statute addresses the issue, the judge's authority derives generally from the court's inherent powers.
Inherent power has been frequently invoked by the courts to regulate the conduct of the members of the bar as well as to provide tools for docket management. Courts have thus relied on the concept of inherent power to impose several species of sanctions on those who abuse the judicial process. For example, federal courts may dismiss a case for failure to prosecute, Link v. Wabash Railroad Co., 370 U.S. at 629-30; see also National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 49 L. Ed. 2d 747, 96 S. Ct. 2778 (1976)
(per curiam); Titus v. Mercedes Benz of North America, 695 F.2d 746 (3d Cir. 1982). Similarly, the contempt power is rooted in the inherent power of the judiciary. E.g., Levine v. United States, 362 U.S. 610, 615, 4 L. Ed. 2d 989, 80 S. Ct. 1038 (1960). Commentators have also noted occasions in which, under its inherent power, a court has disbarred, suspended from practice, or reprimanded attorneys for abuse of the judicial process. See Comment, Financial Penalties Imposed Directly Against Attorneys in Litigation Without Resort to the Contempt Power, 26 UCLA L. Rev. 855, 856 (1979); Comment, Involuntary Dismissal for Disobedience or Delay: The Plaintiff's Plight, 34 U. Chi. L. Rev. 922, 937 n.96 (1967); accord Ex parte Wall, 107 U.S. 265, 288-89, 2 S. Ct. 569, 27 L. Ed. 552 (1883); cf. Spevack v. Klein, 385 U.S. 511, 524, 17 L. Ed. 2d 574, 87 S. Ct. 625 (1967) (Harlan, J., dissenting) (courts "have endeavored to regulate the qualification and practice of lawyers, always in hope that this might better assure the integrity and evenhandedness of the administration of justice . . . since the 17th century").
[Eash v. Riggins Trucking, Inc., 757 F.2d 557, 561 (3d Cir. 1985) (superseded by statute on other grounds)].
Further, the EDPA, citing its inherent powers, and in furtherance thereof, promulgated its own Rules of Disciplinary Enforcement. Similarly, the DNJ, too, has promulgated rules, which specifically state, "[a]n attorney of this bar is within the disciplinary jurisdiction of the District Court and is bound by the Rules of Professional Conduct."
Even without specific rules or statutes, inarguably, a judge has the inherent authority to discipline an attorney who is before her court, for the attorney's unethical behavior in that court. The reach of that discipline, however, is limited, especially when it implicates an attorney's license to practice in another jurisdiction. Thus, that discipline reaches no further than the district from which it originates; at least not until the attorney has been given the full panoply of due process rights in subsequent jurisdictions.
In 1957, the United State Supreme Court ruled that an attorney disbarred by a state bar association may not be summarily disbarred in a federal court, notwithstanding the fact that the state bar membership served as the predicate for the attorney's admission to practice before the federal court. Theard v. United States, 354 U.S. 278 (1957). Later, in 1968, the Court affirmed that decision, holding that a state disbarment is not conclusively binding on a federal court and that an attorney facing disbarment in federal court is entitled due process. In re Ruffalo, 390 U.S. 544 (1968).
While a temporary suspension, rather than disbarment, is at issue in this matter, the DNJ and EDPA share a similar construct concerning the rules promulgated regarding the due process rights of attorneys disciplined in another jurisdiction before either of the districts impose identical reciprocal discipline. Because the issue arises from respondent's subsequent practice in the DNJ, the DNJ's local rules are relevant.
Local Civil Rule (L.C.R.) 104.1(b)(1) specifically addresses discipline imposed on attorneys by other courts and states that "[a]ny attorney admitted to practice before this Court shall, upon being subjected to public discipline by any other court . . . , promptly inform the Clerk of this Court of such action." Once the district court becomes aware of the discipline imposed in another court, the due process protections afforded an attorney are initiated, beginning with L.C.R. 104.1(b)(2)(B) and the issuance of an order to show cause directing the attorney to inform the court, within thirty days, why the imposition of identical discipline would be unwarranted and the reason(s) therefor.
After the thirty days, the court shall impose identical discipline unless it can be demonstrated that on the record, it clearly appears:
(A) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; orMoreover, L.C.R. 104.1(c)(1) provides:
(B) that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that [the Court] could not, consistent with its duty, accept as final the conclusion on that subject; or
(C) that the imposition of the same discipline by [the Court] would result in grave injustice; or
(D) that the misconduct established is deemed to warrant substantially different discipline.
[L .C.R. 104.1(b)(4)(A-D)].
Any attorney admitted to practice before this Court who shall be disbarred on consent or resign from the bar of any other court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth or possession of the United States, while an investigation into allegations of misconduct is pending, shall, upon the filing with this Court of a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this Court and be stricken from the roll of attorneys admitted to practice before this Court (emphasis supplied).
It appears clear, therefore, that only an attorney's disbarment by consent in or a resignation from another court, be it federal or state, operates as an automatic bar to practice in the District of New Jersey. The EDPA, thus, did not have authority to extend its order of temporary suspension to the DNJ.
Certainly, respondent was properly enjoined from practicing in the EDPA until he satisfied the CLE requirements of the order issued by the bankruptcy judge there. The condition that enjoined respondent from practicing in any jurisdiction where he was licensed, however, was unenforceable. It denied him any of the due process rights to which he was entitled by way of Supreme Court case law and the local rules of the DNJ. Furthermore, the record contains no information beyond a quotation of the court's order enjoining him from practicing law or any detail as to the circumstances that resulted in the issuance of that order. For these reasons, we dismiss the alleged violation of RPC 5.5(a)(1).
That said, respondent violated the Rules by failing to notify the clerk of the court in the DNJ of his discipline in EDPA. He also failed to notify the Office of Attorney Ethics. Perhaps even worse, respondent violated a court order, notwithstanding its questionable enforceability, by filing bankruptcy petitions in the DNJ. His recourse was to challenge that order in the EDPA or argue against identical reciprocal discipline in the DNJ through the appropriate process. Instead, he ignored the order and possibly violated RPC 3.4(c) (knowingly disobey an obligation under the rules of a tribunal) and RPC 8.4(d) (conduct prejudicial to the administration of justice). Respondent, however, was not charged with these violations and, therefore, we make no such finding.
Thus, based on the record, respondent violated only RPC 8.1(b) by failing to cooperate with the investigation into this matter. Failure to cooperate with an ethics investigation generally results in an admonition. See, e.g., In the Matter of Lora M. Privetera, DRB 11-414 (February 21, 2012); In the Matter of Douglas Joseph Del Tufo, DRB 11-241 (October 28, 2011); and In the Matter of James M. Docherty, DRB 11-029 (April 29, 2011). We determine, however, to enhance the discipline to a reprimand, based on the aggravating factor of respondent's default. In re Kivler, 183 N.J. 332, 342 (2008) ("a respondent's default or failure to cooperate with the investigative authorities operates as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced.").
Vice-Chair Baugh and Member Boyer did not participate.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.
Disciplinary Review Board
Bonnie C. Frost, Chair
By:/s/_________
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Decided: January 22, 2018 Disposition: Reprimand
| Members | Reprimand | Did not participate |
|---|---|---|
| Frost | X | |
| Baugh | X | |
| Boyer | X | |
| Clark | X | |
| Gallipoli | X | |
| Hoberman | X | |
| Rivera | X | |
| Singer | X | |
| Zmirich | X | |
| Total: | 7 | 2 |
/s/_________
Ellen A. Brodsky
Chief Counsel