Opinion
Docket No. DRB 19-042
09-13-2019
In the Matter of Talia Gayle Danon An Attorney at Law
Disciplinary Review Board
District Docket No. XII-2018-0001E Decision
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 District XII Ethics Committee (DEC), pursuant to R. 1:20-4(f). The formal ethics complaint charged respondent with violations of RPC 1.1(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4 (presumably (b)) (failure to communicate); and RPC 8.1(b) (failure to cooperate with disciplinary authorities).
For the reasons set forth below, we determine to impose a three-month suspension.
Respondent was admitted to the New Jersey bar in 2014 and to the New York bar in 2015. On May 9, 2018, she was temporarily suspended for failure to comply with a fee arbitration determination. In re Danon, ___ N.J. ___ (2018).
Service of process was proper in this matter. On September 11, 2018, the DEC sent a copy of the complaint to respondent at her home address, by regular and certified mail, return receipt requested. Although the certified mail was received, the signature is illegible. The regular mail was not returned.
On October 12, 2018, the DEC sent a letter to respondent at her home address, by regular and certified mail, warning respondent that, if she 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). Once again, the certified mail was received, but the signature is illegible. The regular mail was not returned.
The time within which respondent may answer has expired. As of the date of the certification of the record, no answer had been filed by or on behalf of respondent.
We now turn to the allegations of the complaint.
On November 16, 2016, respondent met with grievant, Bruce Morgan, to discuss a potential variance that would allow Morgan to operate a dog-boarding business in the Township of Pequannock. Morgan paid respondent $1,000 as a retainer for her services to obtain the variance.
Thereafter, respondent took no action on Morgan's matter, provided him no legal advice, and failed to respond to Morgan's attempts to communicate with her. Morgan left voicemail messages for respondent over a period of two months, but received no response. Because of respondent's inaction, Morgan did not obtain a variance and closed his business.
On January 24, 2018, respondent received correspondence from the investigator regarding the grievance against her. Additionally, in January and February 2018, the investigator left respondent three voicemail messages on her mobile telephone, requesting a return phone call to discuss the disciplinary matter. Respondent neither returned the investigator's call nor contacted the DEC.
Following a review of the record, we find that the facts recited in the complaint support the charges of unethical conduct. 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).
Based on the record, respondent accepted $1,000 from Morgan to obtain a variance for his business. After accepting those funds, she failed to work on the matter, failed to contact Morgan to update him, and failed to respond to his several attempts to communicate with her. Respondent's complete disregard for Morgan violated RPC 1.1(a), RPC 1.3, and RPC 1.4(b).
Further, respondent failed to reply to the investigator in connection with the grievance, in violation of RPC 8.1(b).
Generally, in default matters, a reprimand is imposed for gross neglect, lack of diligence, failure to communicate with the client, and failure to cooperate with disciplinary authorities. See, e.g., In re Babcock, 231 N.J. 8 (2016) (reprimand for attorney who filed a complaint, which was dismissed, failed to communicate with the client, and failed to reply to the investigator's request for a written reply to the grievance, violations of RPC 1.1(a), RPC 1.3, RPC 1.4(b), and RPC 8.1(b)); In re Cataline, 219 N.J. 429 (2014) (reprimand for an attorney who grossly neglected the case, lacked diligence, failed to communicate with the client, and failed to cooperate with requests for information from the district ethics committee investigator); and In re Rak, 203 N.J. 381 (2010) (reprimand for an attorney who grossly neglected the case, lacked diligence, failed to communicate with the client, and failed to cooperate with the investigation of a grievance).
Greater discipline is imposed when there are aggravating factors beyond the default itself. See, e.g., In re Romaniello, 216 N.J. 248 (2007) (censure for attorney who grossly neglected and lacked diligence in his handling of a disability claim, failed to communicate with the client, failed to promptly disburse property belonging to a third party, failed to maintain a bona fide office, and failed to cooperate with disciplinary authorities; aggravating factors were attorney's abandonment of his client after he had been designated the client's representative, his inability to account for a disability payment into his business account, and the administrative revocation of his law license for nonpayment of the annual attorney assessment to the New Jersey Lawyers' Fund for Client Protection for seven years) and In re Rosanelli, 203 N.J. 378 (2010) (three-month suspension for attorney guilty of gross neglect, lack of diligence, failure to communicate with the client, failure to cooperate with disciplinary authorities, and failure to return the unearned portion of fee advanced by client; attorney was temporarily suspended after he had failed to comply with a fee arbitration award in favor of the client and remained suspended at the time of the decision).
Respondent's misconduct is akin to that of the attorney in Rosanelli, who committed gross neglect, lack of diligence, failure to communicate with the client, and failure to cooperate with disciplinary authorities. Rosanelli, however, also failed to return the unearned portion of the fee advanced by the client, a violation of RPC 1.16(d). Additionally, Rosanelli was temporarily suspended after he had failed to comply with a fee arbitration award in favor of the client.
Here, too, respondent failed to return the fee she collected from Morgan and was temporarily suspended for her failure to comply with a fee arbitration determination stemming from that fee. Although respondent was not charged with a violation of RPC 1.16(d), we consider, in aggravation, respondent's failure to return the fee, along with the harm to Morgan, who was forced to close his business because of respondent's inaction. Therefore, we determine that the appropriate discipline is a three-month suspension.
Chair Clark and Member Singer voted for a censure.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.
Disciplinary Review Board
Bruce W. Clark, Chair
By:/s/_________
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Decided: September 13, 2019 Disposition: Three-Month Suspension
| Members | Three-MonthSuspension | Censure | Recused | Did Not Participate |
|---|---|---|---|---|
| Clark | X | |||
| Gallipoli | X | |||
| Boyer | X | |||
| Hoberman | X | |||
| Joseph | X | |||
| Petrou | X | |||
| Rivera | X | |||
| Singer | X | |||
| Zmirich | X | |||
| Total: | 7 | 2 | 0 | 0 |
/s/_________
Ellen A. Brodsky
Chief Counsel