Opinion
DRB 21-204
02-25-2022
In the Matter of Curtis J. Romanowski An Attorney at Law
Richard Galex appeared on behalf of the District VIII Ethics Committee. Respondent appeared pro se. Johanna Barba Jones Chief Counsel
Argued: November 18, 2021
District Docket No. VIII-2018-0016E
Richard Galex appeared on behalf of the District VIII Ethics Committee.
Respondent appeared pro se.
Johanna Barba Jones Chief Counsel
DECISION
Hon. Maurice J. Gallipoli, A.J.S.C. (Ret.), Chair
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter originally was before us on a recommendation for an admonition filed by the District VIII Ethics Committee (the DEC), which we determined to treat as a recommendation for greater discipline, pursuant to R. 1:20-15(f)(4).
The formal ethics complaint charged respondent with having violated RPC 1.2(a) (failure to abide by the client's decisions concerning the scope and objectives of the representation); RPC 1.4(b) (failure to communicate with a client); 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); and RPC 3.2 (failure to treat the client with courtesy and consideration).
For the reasons set forth below, we determine to impose a reprimand, with conditions.
Respondent earned admission to the New Jersey bar in 1991 and to the Ohio bar in 1980. At all relevant times, he maintained a practice of law in Metuchen, New Jersey.
This matter constitutes respondent's second encounter with the discipline system. On December 9, 2020, the Court adopted our decision in DRB 19-433 and imposed an admonition, with conditions, for respondent's violation of RPC 1.5 (failure to set forth in writing the rate or basis of the legal fee). In re Romanowski, 244 N.J. 426 (2020). The facts underlying our decision to impose an admonition are relevant to the current matter. See In the Matter of Curtis J. Romanowski, DRB 19-433 (September 18, 2020). In that matter, the DEC recommended that we impose a one-year suspension. The complaint, which related to three client matters, charged respondent with violations of RPC 1.3 (lack of diligence) (two client matters); RPC 1.4(a) (failure to inform a prospective client how, when, and where the client may communicate with the lawyer) (one client matter); RPC 1.4(b) (two client matters); RPC 1.4(c) (one client matter); RPC 1.5(b); RPC 8.4(b) (criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer) (one client matter); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) (one client matter).
In defense of his behavior toward those clients, respondent implicated the Jacob standard, asserting that any misconduct he committed "was attributable in whole or in part to [his] diminished capacity." Romanowski, DRB 19-433 (September 18, 2020) (slip op. at 3). Specifically, respondent asserted that, on September 1, 2016, he sustained a severe head injury that left him with significant head trauma and resulted in the appointment of a temporary trustee to oversee his practice. Further, because of his head injury, respondent claimed he had been involuntarily committed for four days, was taking prescription medication, and was experiencing delusional behavior, including telling people "he was best friends with Warren Buffet had become the richest man in the world, and planned to buy homes in Rumson, New Jersey, for his friends."
In re Jacob, 95 N.J. 132, 137 (1984) (to successfully defend ethics charges based on a mental health condition, a respondent must prove a "loss of competency, comprehension or will of a magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful").
The DEC rejected respondent's reliance on the Jacob defense, determined that his misconduct violated most of the aforementioned RPCs, and recommended that we impose a one-year suspension. We disagreed with the DEC's analysis and, although the lack of expert testimony prevented us from determining whether respondent had satisfied the Jacob test, we concluded that the unrefuted factual record aptly demonstrated that respondent could not be held responsible for the vast majority of his conduct, which occurred during the period the trustee was overseeing his practice. Specifically, we stated:
we can conclude, based on the unrefuted facts set forth in the record, especially the testimony of respondent, Goldstein, Paras, Ventrice, and Cheifetz, as corroborated by the Assignment Judge's November 1, 2016 decision to appoint a temporary attorney-trustee to assume control of respondent's practice, that respondent cannot be held responsible for his conduct from the date of that appointment, until July 10, 2017, when the trusteeship was dissolved.[Id. at 26.]
We agreed, however, that respondent violated RPC 1.5 (one instance) because that misconduct occurred prior to the commencement of the trusteeship. As a result, we imposed an admonition. As conditions to his discipline, respondent was required to submit to the Office of Attorney Ethics (the OAE), within sixty days from the date of the Court's disciplinary Order, proof of psychiatric treatment and proof of fitness to practice law. On January 25, 2021, respondent submitted a doctor's report to the OAE, in satisfaction of the conditions.
Concerning the matter presently before us, on January 24, 2020, the presenter moved before the hearing panel to dismiss counts one and two of the complaint. Specifically, the presenter stated:
The complaint originally charged respondent with violating RPC 1.2 (count one), RPC 1.4(b) and (c) (count two), and RPC 3.2 (count three). R. 1:20-5(d)(3) defines the limited circumstances in which a DEC may entertain a motion to dismiss, only one of which is applicable here:
(3) a motion by the presenter to dismiss the complaint, in whole or in part, when
(A) an essential witness becomes unavailable or
(B) as a result of newly discovered or newly disclosed evidence, one or more counts of the complaint cannot be proven by clear and convincing evidence. Such motion shall be supported by the presenter's certification of the facts supporting the motion and any relevant exhibits and shall be decided by the trier of fact.Here, the presenter did not create a record of either witness unavailability or newly discovered evidence. Presumably, the presenter moved for dismissal of these charges based upon newly-discovered evidence gathered during his preparation for the hearing. In fact, the presenter was newly assigned to handle the matter and had not drafted the complaint.
I have reviewed this matter carefully, I've discussed this matter with the grievant; we are taking the position that we will not proceed with count one and count two; that is, violation of [RPC] 1.2 with reference to the failure of the freezing of assets, and [RPC] 1.4, failure to respond to requests for status.[T12.]
"T" refers to the January 24, 2020 DEC hearing transcript.
The panel chair received no objection from the other panel members or respondent and, thus, dismissed both of those counts of the complaint. The matter proceeded with the single count charging respondent with having violated RPC 3.2.
Additional motion practice preceded the hearing. In an undated motion, the presenter moved to strike respondent's answer or, alternatively, to compel respondent to provide a responsive answer, pursuant to R. 1:20-4(e). Specifically, the presenter argued that respondent's April 10, 2019 answer was "a rambling collection of alleged facts related to the [r]espondent's personal medical condition and to the representation that he provided to the [grievant]," and failed to respond to the allegations of the complaint. On October 7, 2019, the panel chair denied the motion, finding that, although "[r]espondent's [a]nswer to the [c]omplaint is not as succinct as one would like to see from a member of the Bar, in fact the [r]espondent has provided a full, candid and complete disclosure of the facts that he believes are relevant."
On September 28, 2019, respondent moved to transfer the venue of the ethics hearing to Monmouth County, where his office has been located since January 2019. The presenter opposed the motion and argued that venue in Middlesex County was proper, pursuant to R. 1:20-3(e), because, during the relevant period, respondent's office was located, and the underlying divorce proceedings occurred, in Middlesex County. On November 6, 2019, the panel denied respondent's motion.
The facts underpinning this matter are as follows. In November 2017, Sherry Latkovich retained respondent to represent her in her divorce proceeding. The matter before us relates to statements respondent made to Latkovich on June 23, 2018, via both text messages and a telephone conversation.
The sequence in which the June 23, 2018 telephone calls and text messages between the respondent and Latkovich occurred was unclear from the testimony before the DEC. The testimony was also unclear whether respondent and Latkovich spoke one or two times on this date. Accordingly, the below order is based upon the testimony as well as our reasonable interpretation of what transpired that day. Importantly, respondent does not dispute the sequence or substance of these communications.
Specifically, on Saturday, June 23, 2018, respondent called Latkovich several times but did not leave a voicemail message. Latkovich testified that she did not recognize the telephone number and, therefore, did not answer her telephone. Respondent then sent three consecutive text messages to Latkovich.
Respondent's text messages to Latkovich were, in part, unintelligible. They are reproduced here, unedited:
My wife has been the emergency room for the last 2 days I'm trying to cool your husband's attorney but is not picking up at least not returning my calls I can't do anything for you until choking teskey gets on the case I am happy that you paid your half of the retainer but your husband only paid a $1000 my message to his attorney is to get the remaining $1500 immediately to joke and teskey running to go to court
Every study myself for you I'm running out of patience with you there plenty of bills that are only good paid by other glance of mine O trying to help me with
With the part talking mealy about this because Davis says you're angry at me and if you're Angra means or something really wrong with you as a client and I want to dispose of you as a client give you don't see that you are the problem here you and your husband are the problems here I have a limb and medications in if I hear a client talking to my associate about any sort of this satisfaction that is really behind that her patience then you're out on your own I'm really happy to be off this case if a mile a case I'll do a great job but I've gotta get paid am I being quite clear to you[Ex1pp1,2;T89-T92.] (emphasis added).
"Ex" refers to exhibits 1 through 4 to the DEC's Hearing Panel Report.
In response, Latkovich sent the following text message to respondent:
No u are not being clear at all re read your texts I am with family I cannot even fully understand these texts I sent my retainer I am giving u what I have nothing was frozen he spend all the money[Ex1p2;T92.]
Respondent then called Latkovich and she answered. Latkovich testified that, during this telephone conversation, respondent said she disgusted him, and called her an "idiot" and a "moron." Latkovich recorded part of the telephone conversation and, in the recording, respondent called Latkovich a "moron" and a "ridiculous person;" stated that she and her husband deserve each other; threatened to have a financial expert stop working on her case; threatened to withdraw as her counsel; told her that she "better pay us first" before hiring new counsel; and told her to "shut up."
In the June 23, 2018 audio recording, respondent can be heard slurring and Latkovich is audibly upset.
Following the telephone conversation, Latkovich sent respondent another text message:
Wow curt I am under constant stress daily to the point of hospitalization I would never hire an attorney like my asshole husband did I know he knows nothing as he is a general practice attorbey. I am trying to get By each day and it's extremely difficult being yelled at in front of family is Embarrassing and Unnecessary.
What did I to You! Nothing at all you were going to treat like your daughter?! How am I i a Moran? How I do not understand at all what I did at all . . . .[Ex1p3;T92.]
Respondent then sent the below text message to Latkovich:
Do whatever you knew need to do to get us off your case I'm disgusted with the way things have gone you're underpaid to us we want off your case immediately and if you don't do that voluntarily we will make a motion to get us off your case the last conversation we had was absolutely non for docked of you have to really get your head straight and when Irish than having representing you ever again please let us know on Monday.[Ex1p4;T93-T94.] (emphasis added).
As a result of the June 23 communications with respondent, Latkovich testified that she felt upset, terrified, and threatened. She considered calling the police.
During the ethics hearing, respondent acknowledged that he sent the above text messages but claimed the nonsensical writing and improper tone were the result of using voice recognition on his cell phone while he was in the emergency room with his wife. Regarding the telephone call, respondent admitted that the call took place, and that the voice heard on the recording was his own. Respondent admitted that he was slurring and on medication but claimed that he did not recall most of the conversation. He denied calling Latkovich an "idiot" and emphatically reiterated that denial to us during oral argument, but acknowledged he told her that she and her husband deserved each other.
Respondent claimed that he had to "manage" Latkovich early in the relationship. He stated that she "rambled fairly constantly and to no productive end;" that her "emails and phone reports were excessively repetitive and non-productive;" and that she would go "on and on" about the impropriety of her husband's alleged subsequent relationships. Respondent testified that he believed Latkovich was untruthful and lacked credibility, and that she rudely spoke over other people on a number of occasions. Respondent testified that, prior to the June 23 text messages and telephone call, he appeared at two separate court conferences regarding Latkovich's case, one of which she also attended. Respondent further testified that he had to explain to Latkovich "at least 40 different times" that the judge was not going to freeze the marital assets, as she had requested, among other legal issues. Thereafter, respondent stated that Latkovich contacted his office every day and that the excessive communication had reached a point that he told her to "back off on them."
Further, although respondent repeatedly testified that he was competent to represent Latkovich during the relevant time period, and presented corroborative character testimony, he blamed his behavior on prescription medication and his frustration with Latkovich. Respondent explained that, because of his 2016 head trauma, he repeatedly fell and had issues with his speech. He was hospitalized from February 28 through March 4, 2018, the same period in which he represented Latkovich, as the result of temporary paralysis. Further, he was again hospitalized on June 25, just two days after his text and telephone communication with Latkovich. He claimed that he had been prescribed certain medication, including Lithium and Quetiapine, which "created exacerbated problems with [his] speech" and left him with "brain fog."
In his answer to the complaint, and during his summation before the DEC, respondent apologized for his behavior, which he said was a departure from his character, and reiterated his claim that it was attributable to medication and his wife's hospitalization.
Respondent further asserted that, since he discontinued taking the prescription medication, he has functioned normally and no longer has problems with slurring or the content of his speech.
Respondent presented character testimony from four witnesses, each of whom had also testified at his prior disciplinary proceeding: Cary Cheifetz, Esq.; Peter Paras, Esq.; Peter Ventrice, Esq.; and Robert Goldstein, Esq.
In the hearing underlying In re Romanowski, 244 N.J. 426 (2020), Cheifetz, Paras, and Ventrice testified as character witnesses, and Goldstein testified as a fact witness.
At the time of his testimony, Cheifetz had practiced for forty years and had known respondent for approximately twenty-five years. Cheifetz was the Chair of the State Bar Family Law Section; a fellow and former president of the New Jersey Chapter of the American Academy of Matrimonial Lawyers; a diplomat in the American College of Family Trial Lawyers; and the former president of the Essex County Bar Association. He is also the author of a family law treatise and a frequent lecturer. Cheifetz described respondent, with whom he has lectured and worked in contested cases, as "competent," "business like," and able to "diffuse conflict, not create it." Cheifetz testified that he was aware of respondent's head injury and prior incompetence to practice law.
Goldstein, an attorney for more than forty years, testified that he had known respondent for at least thirty years. Goldstein is chairman of the Middlesex County Family Law Section, co-chair of the New Jersey Association for Justice, Matrimonial Law Section, and authored published articles. Goldstein explained that, following respondent's 2016 head injury, he grew increasingly concerned about respondent's ability to represent clients and requested respondent's permission to contact the assignment judge. As a result, in 2016, Goldstein was appointed as the temporary trustee over respondent's firm. Goldstein recounted that he remained as trustee until approximately September 2017, when he was satisfied that respondent was competent to practice law. Goldstein further stated that respondent has a "good professional reputation."
Paras testified that he had been an attorney for forty years and had known respondent for thirty years. Paras believed respondent to be a competent attorney, based upon his professional interactions with him.
Peter Ventrice, an attorney of approximately thirty years, testified that he had known respondent for between twenty and twenty-five years. Ventrice testified that, based upon his years of knowing respondent as an adversary and colleague, he found respondent to be a zealous advocate; well-informed; ethical; and someone he could "count on." Ventrice also explained that he was aware of respondent's head injury and the prior appointment of the trustee.
The DEC found that respondent violated RPC 3.2. Specifically, after it reviewed the June 23, 2018 text messages and listened to the recording of respondent's telephone conversation with Latkovich, the DEC found that respondent's communications toward her were abusive. The DEC emphasized that respondent admitted to these communications with Latkovich and apologized for his unprofessional tenor.
The DEC determined that respondent's medical history of head trauma was irrelevant to the matter. Specifically, the DEC acknowledged that respondent previously had suffered a head injury but, based upon respondent's own testimony, accepted that "he was competent to resume full control over his law firm by September 2017," prior to the date respondent was retained by Latkovich.
The DEC noted that respondent had presented four character witnesses.
In the absence of testimony from respondent's treating physician, the DEC could not determine whether prescription medication caused respondent to experience daytime tiredness and slurred speech. Nonetheless, the DEC accorded mitigating weight to respondent's alleged medicated status.
In aggravation, the DEC found respondent "unapologetic throughout the hearing until his closing argument." Further, the DEC found that respondent's years of experience as a family lawyer - for which he presented character witnesses to attest to not only his competency, but also his experience and expertise - should have enabled him to manage Latkovich and her expectations without resorting to unprofessional language and an abusive tone.
The DEC recommended that respondent receive an admonition for his misconduct.
At oral argument before us, respondent reluctantly acknowledged that his treatment of Latkovich was insulting, demeaning, and violative of RPC 3.2, but attempted to downplay it as a brief, thirty-second exchange. Respondent urged that we impose no discipline, citing mitigating factors, including his wife's hospitalization on the same date of the verbal exchange, along with the effects of his prescription medication. Respondent explained to us that the prescription medication, which he no longer takes, prevented him from censoring his statements to Latkovich.
Following a de novo review of the record, we are satisfied that the DEC's determination that respondent's conduct was unethical is fully supported by clear and convincing evidence.
Respondent undisputedly engaged in the verbal abuse of a client, including berating her about legal fees. His conduct was unprofessional and egregious, particularly in view of the fact that Latkovich was already suffering the emotional toll of a divorce. Further, respondent's statements that he was going to withdraw from the representation were unfounded, threatening, and caused Latkovich additional concern that her lawyer was backing out of her case. By making these comments to Latkovich, respondent clearly did not treat her with the courtesy and consideration required by RPC 3.2.
The Superior Court of New Jersey, Appellate Division, has stated that, in matters where emotions run high, such as family litigation, the "attorney must . . . be a counsellor, to counsel and provide sound legal advice to his or her client unaffected by emotion or acrimony." Chestone v. Chestone, 322 N.J.Super. 250, 259 (App. Div. 1999). RPC 3.2 is intended to ensure that attorneys treat all persons involved in the legal process, including their own clients, with courtesy and consideration. Disciplinary precedent, as detailed below, is in accord.
In sum, we find that respondent violated RPC 3.2. The sole issue left for our determination is the appropriate quantum of discipline for respondent's misconduct.
Disrespectful or insulting conduct to persons involved in the legal process leads to a broad spectrum of discipline, ranging from an admonition to disbarment, depending on the presence of other ethics violations. See, e.g., In re Gahles, 182 N.J. 311 (2005) (admonition for attorney who, during oral argument on a custody motion, called the other party "crazy," "a con artist," "a fraud," "a person who cries out for assault," and a person who belongs in a "loony bin;" in mitigation, the attorney's statements were not made to intimidate the party); In the Matter of Alfred T. Sanderson, DRB 01-412 (February 11, 2002) (admonition for attorney who, in the course of representing a client charged with driving while intoxicated, made discourteous and disrespectful communications to the municipal court judge and to the municipal court administrator; in a letter to the judge, the attorney wrote: "How fortunate I am to deal with you. I lose a motion I haven't had [sic] made. Frankly, I am sick and tired of your pro-prosecution cant;" the letter continued, "It is not lost on me that in 1996 your little court convicted 41% of the persons accused of DWI in Salem County. The explanation for this abnormality should even occur to you."); In re Murray, 221 N.J. 299 (2015) (reciprocal discipline matter; reprimand for attorney who, in three separate court-appointed, pro bono matters in Delaware, behaved discourteously toward the judge and repeatedly attempted to avoid pro bono court appointments there); In re Ziegler, 199 N.J. 123 (2009) (reprimand imposed on attorney who told the wife of a client in a domestic relations matter that she should be "cut up into little pieces . . . put in a box and sent back to India;" and in a letter to his adversary, accused the wife of being an "unmitigated liar" and threatened that he would prove it and have her punished for perjury; the attorney also threatened his adversary with a "Battle Royale" and ethics charges; mitigating factors included the attorney's unblemished forty-year ethics history, his recognition that his conduct had been intemperate, and the passage of seven years from the time of the misconduct until the imposition of discipline); In re Geller, 177 N.J. 505 (2003) (reprimand imposed on attorney who filed baseless motions accusing two judges of bias against him; failed to expedite litigation and to treat judges with courtesy (characterizing one judge's orders as "horse***t," and, in a deposition, referring to two judges as "corrupt" and labeling one of them "short, ugly and insecure"), his adversary ("a thief"), the opposing party ("a moron," who "lies like a rug"); failed to comply with court orders (at times defiantly) and with the disciplinary special master's direction not to contact a judge; used means intended to delay, embarrass, or burden third parties; made serious charges against two judges without any reasonable basis; made a discriminatory remark about a judge; and titled a certification filed with the court "Fraud in Freehold"; in mitigation, the attorney's conduct occurred in the course of his own child-custody case, the attorney had an unblemished twenty-two-year career, was held in high regard personally and professionally, and was involved in legal and community activities); In re Arenstein, 170 N.J. 186 (2001) (reprimand imposed on attorney who, during a matrimonial deposition, physically removed the court reporter's hands from her transcribing machine when she did not accede to his demand that she stop typing; the reporter alleged that the attorney's behavior amounted to an assault; no charges were ever brought and the reporter was unharmed); In re Supino, 182 N.J. 530 (2005) (attorney suspended for three months after he exhibited rude and intimidating behavior in the course of litigation and threatened the other party (his former wife), court personnel, police officers, and judges; other violations included RPC 3.4(g), RPC 3.5(c), and RPC 8.4(d)); In re Rifai, 204 N.J. 592 (2011) (three-month suspension imposed on an attorney who called a municipal prosecutor an "idiot," among other things; intentionally bumped into an investigating officer during a break in a trial; repeatedly obtained postponements of the trial, one based on a false claim of a motor vehicle accident; and was "extremely uncooperative and belligerent" with the ethics committee investigator; the attorney had been reprimanded on two prior occasions); In re Stolz, 219 N.J. 123 (2014) (three-month suspension for attorney who made "sarcastic," "wildly inappropriate," and "discriminatory" comments to his adversary, such as "Did you get beat up in school a lot . . . because you whine like a little girl"; "Why don't you grow a pair?"; "What's that girlie email you have. Hotbox.com or something?"; "Why would I want to touch a f@% like you?"; the attorney also lied to the court and to his adversary that he had not received the certification in support of a motion filed by the adversary; aggravating factors were the attorney's lack of early recognition of and regret for his actions; additional violations of RPC 3.3(a)(1), RPC 3.3(a)(5), RPC 4.1(a), RPC 8.4(a), and RPC 8.4(d); no prior discipline); In re Van Syoc, 216 N.J. 427 (2014) (six-month suspension imposed on attorney who, during a deposition, called opposing counsel "stupid" and a "bush league lawyer;" the attorney also impugned the integrity of the trial judge by stating that the judge was in the defense's pocket, a violation of RPC 8.2(a); we found several aggravating factors, including the attorney's disciplinary history, which included an admonition and a reprimand; the absence of remorse; and the fact that his misconduct occurred in the presence of his two clients, who, as plaintiffs in the very matter in which their lawyer had accused the judge of being in the pocket of the defense, were at risk of losing confidence in the legal system); In re Vincenti, 92 N.J. 591 (1983) (Vincenti I) (one-year suspension for attorney who displayed a pattern of abuse, intimidation, and contempt toward judges, witnesses, opposing counsel, and other attorneys; the attorney engaged in intentional behavior that included insults, vulgar profanities, and physical intimidation consisting of, among other things, poking his finger in another attorney's chest and bumping the attorney with his stomach and then his shoulder); and In re Vincenti, 152 N.J. 253 (1998) (Vincenti II) (disbarment for attorney described by the Court as an "arrogant bully," "ethically bankrupt," and a "renegade attorney;" this was the attorney's fifth encounter with the disciplinary system).
Although respondent's conduct was reprehensible, his inappropriate comments were confined to a single day, and did not involve actual or veiled threats of violence. Respondent's mistreatment of his client is most similar to that of the admonished attorneys in Gahles and Sanderson. In Gahles, the attorney made "emotionally charged" statements about her client's ex-wife in connection with a child custody proceeding. There, we recommended a reprimand - rather than greater discipline - because we were persuaded by the fact that the statements "were not designed to abuse or intimidate," were "made in the heat of oral argument on a motion that involved crucial issues," and that the attorney's "exaggerated reactions were prompted by memories of her own, difficult divorce case." In the Matter of Kathleen F. Gahles, DRB 04-192 (2005) (slip op. at 18). We determined that further enhancement was unnecessary, notwithstanding her prior reprimand, because the misconduct was different from her prior matter. The Court, however, determined that Gahles' conduct warranted only an admonition. In Sanderson, we admonished an attorney for making "discourteous and disrespectful communications" to a municipal court judge and municipal court administrator. In the Matter of Alfred T. Sanderson, DRB 01-412 (February 11, 2002).
Although respondent's comments were similar in content to those of the attorney in Gahles, who made statements in the heat of the moment, respondent's comments followed his own unprompted weekend telephone call to Latkovich, in which he repeatedly asked her to let him out of the case. Also, unlike Gahles and Sanderson, respondent's ire was not directed at some third party but, rather, was aimed as his own client, to whom he owed a duty of professionalism. Respondent's misconduct was further exacerbated by the fact that he engaged in the verbal abuse of a client who was in the midst of a contentious divorce. As we stated in Gahles, often "the impropriety lay not with what [the attorney] said, but how she said it." In the Matter of Kathleen F. Gahles, DRB 04-192 (slip op. at 11). These facts distinguish respondent's misconduct from that of the attorney in Gahles, and weigh heavily in favor of a reprimand, rather than an admonition.
To craft the appropriate discipline, we also consider aggravating and mitigating factors. In mitigation, we already have recognized that respondent suffered from a severe head injury in 2016. Given his continued practice of law, we accord that factor minimal weight. In aggravation, as the DEC pointed out, respondent has not expressed sincere remorse or taken responsibility for his misconduct.
Under the totality of the circumstances, including respondent's disciplinary history, a reprimand is appropriate. Respondent has failed to take genuine responsibility for his conduct. Further, despite respondent's assertions that he is competent to practice and the January 25, 2021 report he provided to that effect, the manner in which he handled himself throughout his representation of Latkovich, and the rambling answer he submitted in response to the DEC's complaint, again calls his mental capacity into question. Thus, in our view, a reprimand is necessary to protect the public and preserve confidence in the bar.
As additional protections, due to the nature of respondent's admitted ongoing health struggles, we require respondent to provide to the OAE (1) proof of fitness to practice law, as attested to by a medical doctor approved by the OAE, and (2) proof of continuing psychiatric treatment, on a quarterly basis, for a period of two years.
Vice-Chair Singer and Members Campelo and Menaker voted to impose an admonition, with the same conditions, noting that the conduct occurred between respondent and one client over the course of one day.
Member Boyer was absent.
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.