Opinion
DRB 20-348
08-06-2021
In the Matter of Wolfgang Glenn Robinson An Attorney at Law
Johanna Barba Jones Chief Counsel
District Docket Nos. XIV-2019-0583 and XIV-2019-0584E
Johanna Barba Jones Chief Counsel
DECISION
Bruce W. Clark, Chair
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a certification of the record filed by the Office of Attorney Ethics (the OAE), pursuant to R. 1:20-4(f). The formal ethics complaint charged respondent with having violated RPC 1.1(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4(c) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation); RPC 1.15(b) (failure to promptly deliver to the client or third person any funds the client or third person is entitled to receive); and RPC 8.1(b) (two instances - failure to cooperate with disciplinary authorities).
Due to respondent's failure to file an answer to the formal ethics complaint, the OAE amended the complaint to include the second RPC 8.1(b) charge.
For the reasons set forth below, we determine to impose a reprimand.
Respondent earned admission to the New Jersey bar in 2013 and has no prior discipline. At the relevant times, he maintained an office for the practice of law in Chatham, New Jersey.
Effective November 4, 2019, the Court declared respondent ineligible to practice law for failure to comply with New Jersey continuing legal education (CLE) requirements. Effective January 2, 2020, the Court declared him ineligible to practice law for failure to comply with Interest on Lawyers Trust Account (IOLTA) requirements. Finally, effective October 5, 2020, the Court declared him ineligible to practice law for failure to pay the annual attorney assessment to the New Jersey Lawyers' Fund for Client Protection (CPF). He remains ineligible, on all three bases, to date.
Service of process was proper. On October 20, 2020, the OAE sent a copy of the formal ethics complaint, by certified and regular mail, to respondent's home address of record, a Post Office Box. United States Postal Service tracking indicated that, on November 2, 2020, the letter was "Held at Post Office, At Customer Request." The certified mail was returned to the OAE, unclaimed, on November 17, 2020. The regular mail was not returned.
On November 30, 2020, the OAE sent a letter, by United Parcel Service (UPS) and regular mail, to respondent's home address, informing him that, unless he filed a verified answer to the complaint within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the record would be certified to us for the imposition of discipline, and the complaint would be deemed amended to charge a willful violation of RPC 8.1(b). Via e-mail dated December 2, 2020, UPS notified the OAE that the letter had been "[l]eft At: FRONT DOOR" that same date. The regular mail was not returned.
As of December 21, 2020, respondent had not filed an answer to the complaint, and the time within which he 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.
On February 18, 2016, Julia Sarnecky (Sarnecky) died testate. Sarnecky's co-executors were her daughters, Karen Serwin (Serwin) and Diane Bielski (Bielski). On a date not apparent from the record, the co-executors retained respondent to assist them in their administration of Sarnecky's estate.
Almost two years later, on January 17, 2018, respondent transmitted a second revised accounting to the co-executors. On January 21, 2018, Serwin sought respondent's agreement that the estate would be completely closed within sixth months, noting that "it will be two years next month that my mom has passed, I think 6 months is more than enough time to allow for the estate to be finalized." In February and March of 2018, respondent communicated with the co-executors concerning the estate.
Respondent's communication with the co-executors ceased in April 2019. Specifically, on April 3, 2019, respondent sent them both an e-mail stating "I am currently finalizing the last accounting and will send it out by the end of this week. After it is approved, the final distributions may be made." Despite respondent's representations, the co-executors received neither.
On April 12, 2019, Serwin wrote to respondent by e-mail to relate that she had not received the final distribution; she requested to know if and when it had been mailed and, if not, the cause of the delay. On April 25, 2019, Serwin wrote to respondent to observe that neither she nor Bielski had heard from him and to request an update.
By letter dated April 29, 2019, Serwin requested that respondent reply to her prior messages, noting his failure to produce the final accounting, and indicating that if she did not receive his reply by May 3, 2019, she would alert ethics authorities. Serwin wrote, "[y]ou are holding a substantial amount of money in your IOLTA account. I only hope the money is still there and you have not absconded with it."
Paragraph 8f of the complaint states that Serwin required receipt by May 1, 2019.
Serwin was aware of two separate office addresses for respondent, to which she transmitted two similar letters, dated May 1, 2019, via certified mail. Having received no response, Serwin filed a grievance against respondent, dated May 9, 2019, and provided a copy to Bielski.
On June 3, 2019, Bielski sent a letter to respondent indicating that it was time to finalize her mother's estate and observing that the 2018 tax forms had been filed in March 2019. Bielski described her attempts to contact respondent "via e-mails, voice messages, cell phone texts, and letters delivered by the Post Office," to which she had received no reply. Bielski also indicated that she could arrange to pick up the file if respondent could no longer assist with the estate. Bielski received no response.
In a June 6, 2019 e-mail, Bielski advised respondent that she had spoken with staff at the accounting firm Mazzucco and Associates, who indicated that respondent had not paid the $600 accounting fee for the 2018 estate tax preparation. Bielski requested copies of the paid receipt for the tax filings; respondent's bill for legal services; a complete IOLTA accounting; and documents regarding the final distribution. Bielski observed that her mother had "passed away over three years ago and it is time for the estate to be finalized." Thereafter, Bielski transmitted the same e-mail to respondent for nine straight days, June 7 through June 15, 2019. Bielski reiterated the bulk of her e-mail in a June 7, 2019 letter to respondent, observing "it was a shock to learn that the accountant's bill is still outstanding." Having received no response, on June 16, 2019, Bielski filed her own ethics grievance against respondent.
The District XA Ethics Committee (the DEC) docketed the Serwin and Bielski grievances. After the DEC requested assistance with the financial aspects of the investigation, the OAE opened two new, corresponding dockets to investigate the financial allegations of Bielski (XIV-2019-0583E) and Serwin (XIV-2019-0584E). Thereafter, effective November 4, 2019, the Court declared respondent ineligible to practice law for failing to comply with CLE requirements.
In a November 15, 2019 letter, the OAE advised respondent that the two original case files remained open within DEC XA, which "continues to investigate your apparent failure to cooperate with its investigation." Under the terms of those letters, respondent was obligated to reply to both Bielski's and Serwin's grievances by December 2, 2019, and failed to do so. Effective January 2, 2020, the Court declared respondent ineligible to practice law for failing to comply with IOLTA requirements.
Also on January 2, 2020, the OAE received a response to its subpoena of respondent's banking records from Valley National Bank. Those records showed that respondent had maintained his attorney trust account (ATA) at that financial institution from May 1, 2018 to November 30, 2019.
On June 7, 2019, an OAE investigator traveled to Chatham, New Jersey in an unsuccessful attempt to locate respondent at his office address. That same date, the investigator traveled to respondent's home address and left a business card with respondent's wife.
On January 13, 2020, OAE staff spoke with respondent, who advised that he had been dealing with personal issues. In a January 15, 2020 letter memorializing that discussion, the OAE recounted that respondent had "advised [he] would be able to issue final disbursements of the funds remaining from the Estate of Julia Sarnecky by the end of this month." The OAE requested that respondent provide the OAE, by February 6, 2020, copies of the cover letters and disbursement checks he issued.
On February 12, 2020, respondent sent an e-mail to the OAE investigator enclosing copies of his correspondence disbursing the estate funds. In that transmittal, respondent stated "[a]t this point, I intend to indicate my retirement with the bar and continue to meet with Ray at [N]LAP]."
Attached to that e-mail correspondence was respondent's February 12, 2020 letter transmitting to Bielski checks payable to the beneficiaries. In his transmittal letter, respondent stated, "I am ashamed and disappointed in my conduct towards you. I am aware that I have failed you as an attorney, and, for that, I am truly very sorry." Respondent requested that any further correspondence be directed to him at his home but did not provide his home address.
Respondent submitted these final disbursements after he had been declared ineligible to practice law, effective November 4, 2019, for his failure to satisfy CLE requirements. Respondent, however, was not charged with having violated RPC 5.5(a) (unauthorized practice of law) in this case.
Respondent's delivery of the final disbursements to the clients took almost two years, including the ten-month period of non-communication that began on April 3, 2019. The co-executors confirmed receipt of the final checks, but also questioned why it had taken respondent so long to make the disbursements and requested a final accounting of the estate funds.
In fact, more than two years passed between respondent's submission of the second revised accounting to the co-executors, on January 17, 2018, and the delivery of the final disbursements, on February 12, 2020. The final disbursements occurred nearly four years after Sarnecky's February 18, 2016 death.
On May 12, 2020, the OAE requested that respondent submit the overdue response to the grievances by May 26, 2020. On June 8, 2020, having received no response to the grievances, the OAE attempted to reach respondent by telephone.
On June 11, 2020, the OAE transmitted a letter to respondent documenting its several unsuccessful contact attempts and requesting that respondent contact the OAE by telephone. On June 15, 2020, the OAE investigator spoke to respondent, who indicated that he had been away, but would provide his response to the grievances and the final estate accounting by June 26, 2020. Neither was received. Thus, on June 27, 2020, the OAE investigator sent to respondent an e-mail requesting the status of his response and the accounting and providing a new due date of July 2, 2020. On July 7 and 8, 2020, the investigator left voicemail messages for respondent, providing a final deadline of July 10, 2020 for receipt of the outstanding documents.
Thereafter, the OAE analyzed additional banking records it had obtained from Valley National Bank for respondent's ATA for the period December 2019 through February 2020. The OAE determined that respondent had properly deposited, maintained, and disbursed funds out of his ATA for the Sarnecky estate.
Effective October 5, 2020, the Court declared respondent ineligible to practice law for failure to comply with the requirements of the CPF. As of the filing of the complaint on October 19, 2020, the OAE had received no further communication from respondent.
Based on the above facts, the complaint charged respondent with having violated RPC 1.1(a); RPC 1.3; RPC 1.4(c); RPC 1.15(b); and RPC 8.1(b) (two instances).
We find that the facts recited in the complaint support the charges of unethical conduct and determine to impose a reprimand.
Respondent's failure to file a verified answer to the complaint 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).
After producing some of the work for the co-executors in the two years following Sarnecky's passing, respondent ceased work and communication for ten months, between April 2019 and February 2020. Two years passed between the second estate accounting and the final disbursements. The co-executors did not receive the final disbursements of the Sarnecky estate until almost four years after her passing, and only after the OAE had commenced its disciplinary investigation. Respondent never submitted a final accounting to the clients. Through his delay, non-performance and non-responsiveness, respondent exhibited gross neglect and a lack of diligence, in violation of RPC 1.1(a) and RPC 1.3.
Respondent violated RPC 1.4(c) by failing to adequately communicate with the co-executors. Given his utter failure to communicate with the clients over a ten-month period, we find that respondent violated RPC 1.4(c), which requires that a lawyer "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Although RPC 1.4(b) would have been more applicable, that subsection was not charged.
Respondent violated RPC 1.15(b) by failing to promptly deliver to the co-executors and other beneficiaries the Sarnecky estate funds to which they were entitled. Fortunately, there is no evidence that respondent failed to hold those funds inviolate.
Finally, respondent violated RPC 8.1(b) by failing to respond to the ethics grievances, to provide the OAE with a final accounting, or to meaningfully cooperate with the disciplinary authorities. He violated that Rule a second time by failing to file a verified answer to the complaint.
As noted in the Complaint, "[r]espondent's failure to cooperate with the District XA Committee investigations was subsumed by his failure to cooperate with the OAE's investigations, such that District XA administratively dismissed their dockets."
In sum, we find that respondent violated RPC 1.1(a); RPC 1.3; RPC 1.4(c); RPC 1.15(b), and RPC 8.1(b) (two instances). The sole issue left for our determination is the appropriate quantum of discipline.
Conduct involving gross neglect, lack of diligence, and failure to communicate with clients ordinarily results in either an admonition or a reprimand, depending on the number of client matters involved, the gravity of the offenses, the harm to the clients, the presence of additional violations, and the seriousness of the attorney's disciplinary history. See, e.g., In the Matter of Esther Maria Alvarez, DRB 19-190 (September 20, 2019) (admonition for attorney who was retained to obtain a divorce for her client, but for the next nine months, failed to take any steps to pursue the matter, and failed to reply to all but one of the client's requests for information about the status of her case, violations of RPC 1.1(a) and RPC 1.4(b); in another matter, the attorney agreed to seek a default judgment, but waited more than eighteen months to file the necessary papers with the court; although the attorney obtained a default judgment, the court later vacated it due to the passage of time, which precluded a determination on the merits; violations of RPC 1.1(a) and RPC 1.3) and In re Burro, 235 N.J. 413 (2018) (reprimand for attorney who grossly neglected and lacked diligence in an estate matter for ten years and failed to file New Jersey Inheritance Tax returns, resulting in $40,000 in accrued interest and a lien on property belonging to the executrix, in violation of RPC 1.1(a) and RPC 1.3; the attorney also failed to keep the client reasonably informed about events in the case (RPC 1.4(b)); to return the client file upon termination of the representation (RPC 1.16(d)); and to cooperate with the ethics investigation (RPC 8.1(b)); in aggravation, we considered the significant harm to the client and the attorney's prior private reprimand; in mitigation, the attorney expressed remorse and had suffered a stroke that forced him to cease practicing law).
An attorney's violation of RPC 1.15(b) usually results in the imposition of an admonition or a reprimand, even if accompanied by other infractions. See, e.g., In the Matter of Brian F. Fowler, DRB 12-036 (April 27, 2012) (admonition; after the attorney had been retained to represent an estate, he was to collect funds due on a note given to the estate; for a three-year period, he collected the funds, but failed to deposit at least nineteen checks and did not supply a required accounting; he also failed to reply to more than a dozen inquiries from the client about the funds; violations of RPC 1.4(b) and RPC 1.15(b); the attorney's psychological difficulties, which had impeded his ability to represent his clients, were considered in mitigation; although the attorney had received two prior admonitions, an admonition was still imposed, in light of the mitigating factors); In the Matters of Raymond Armour, DRB 11-451, DRB 11-452, and DRB 11-453 (March 19, 2012) (admonition imposed on attorney who, in three personal injury matters, neither promptly notified his clients of his receipt of settlement funds nor promptly disbursed their share of the funds; the attorney also failed to properly communicate with the clients; we considered that the attorney had no prior discipline); and In the Matter of Jeffrey S. Lender, 11-368 (January 30, 2012) (admonition; in a "South Jersey" style real estate closing in which both parties opted not to be represented by a personal attorney in the transaction, the attorney inadvertently overdisbursed a real estate commission, neglecting to deduct from his payment an $18,500 deposit for the transaction; he then failed to rectify the error for over five months after the overdisbursement was brought to his attention; violations of RPC 1.3 and RPC 1.15(b); the attorney had no prior discipline).
We typically impose admonitions for failure to cooperate with disciplinary authorities, if the attorney does not have an ethics history. See, e.g., In the Matter of Michael C. Dawson, DRB 15-242 (October 20, 2015) (attorney failed to reply to repeated requests for information from the district ethics committee investigator regarding his representation of a client in three criminal defense matters, a violation of RPC 8.1(b)); In re Gleason, 220 N.J. 350 (2015) (attorney did not file an answer to the formal ethics complaint and ignored the district ethics committee investigator's multiple attempts to obtain a copy of his client's file, a violation of RPC 8.1(b); the attorney also failed to inform his client that a planning board had dismissed his land use application, a violation of RPC 1.4(b); and In the Matter of Raymond A. Oliver, DRB 12-232 (November 27, 2012) (attorney failed to submit a written, formal reply to the grievance and a copy of the filed pleadings in the underlying case, despite repeated assurances that he would do so, a violation of RPC 8.1(b)).
Here, the baseline discipline for respondent's misconduct is an admonition. However, in crafting the appropriate discipline, we also consider aggravating and mitigating factors.
In mitigation, respondent has not previously been the subject of final discipline.
In aggravation, we consider the default status of this matter. "[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).
On balance, we determine that a reprimand is the quantum of discipline necessary to protect the public and preserve confidence in the bar.
Member Joseph voted for a censure and would require respondent to provide a final accounting to the clients and to the OAE.
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 K 1:20-17.