Opinion
Docket No. DRB 19-185
12-26-2019
In the Matter of Talia Gayle Danon An Attorney at Law
Disciplinary Review Board
District Docket No. XIV-2018-0422E 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 Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The formal ethics complaint charged respondent with violations of RPC 8.1(b) (failure to cooperate with disciplinary authorities) and RPC 8.4(d) (conduct prejudicial to the administration of justice).
For the reasons expressed below, we determine to impose a censure.
Respondent was admitted to the New Jersey bar in 2014 and to the New York bar in 2015. At the relevant time, she maintained a law office in Springfield, New Jersey.
Effective May 9, 2018, respondent was temporarily suspended for failure to comply with a fee arbitration determination. In re Danon, ___ N.J. ___ (2018). She remains suspended to date. We recently transmitted to the Court a decision imposing a three-month suspension, in another default matter, for respondent's violation of RPC 1.1(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4(b) (failure to communicate with a client); and RPC 8.1(b). In the Matter of Talia Gayle Danon, DRB 19-042 (September 13, 2019). In that matter, respondent accepted a fee to obtain a variance for a client's business, but failed to perform any services in the client's behalf, or to communicate with the client. She also failed to reply to the district ethics committee investigator's requests for a reply to the grievance. That matter is pending with the Court.
Service of process was proper. On February 28, 2019, the OAE sent a copy of the complaint, by regular and certified mail, to respondent at a home address that she had provided to the OAE in June 2018, and to her billing address of record. The certified mail sent to respondent's home address was returned marked unclaimed, unable to forward. The undated certified mail receipt for the letter sent to respondent's billing address was returned bearing an illegible signature. The United States Postal Service (USPS) tracking information showed delivery on March 4, 2019. The regular mail was not returned.
New Jersey attorneys have an affirmative obligation to inform the New Jersey Lawyers' Fund for Client Protection and the OAE of changes to their home and primary law office addresses, "either prior to such change or within thirty days thereafter." R. 1:20-1(c). --------
On April 2, 2019, the OAE sent another letter to respondent, by regular and certified mail, to the same home and billing addresses. The letter notified respondent that, if she did not file an 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 include a willful violation of RPC 8.1(b).
The certified mail sent to respondent's home address was returned marked unclaimed, unable to forward. The regular mail was not returned. The undated certified mail receipt for the mail sent to respondent's billing address was returned bearing an illegible signature. The USPS tracking information showed delivery on April 4, 2019.
As of May 10, 2019, 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.
As previously noted, on April 9, 2018, respondent was temporarily suspended, effective May 9, 2018, for failure to pay a fee arbitration determination. In accordance with the Court's Order, respondent was required to comply with R. 1:20-20, which provides, among other things, that a suspended attorney "shall within 30 days after the date of the order of suspension (regardless of the effective date thereof) file with the Director 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 Rule.
By letter dated August 28, 2018, sent by certified and regular mail, to respondent's home address of record and to another home address she had provided to the OAE, the OAE reminded her of the requirement that she file the R. 1:20-20 affidavit, and requested her response by September 11, 2018. The OAE's letter emphasized the importance of respondent's identifying any clients she was representing at the time of the suspension, and informing the OAE when and how they were notified of her suspension, and whether she delivered their files to them or to their new attorney.
The letter sent by certified mail to respondent's home address of record was returned marked "NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD." The letter sent by regular mail was not returned. The letter sent by certified mail to the additional home address respondent had provided was returned marked "UNCLAIMED." The letter sent by regular mail to this address was not returned. Respondent neither replied to the letter nor filed the required affidavit.
By letter dated October 9, 2018, sent by certified and regular mail to respondent's billing address of record, the OAE reiterated its prior request that she provide information and that, by October 23, 2018, she file the affidavit required pursuant to R. 1:20-20. The undated certified mail receipt was returned signed by Hope Danon. The USPS tracking information showed delivery of the letter on October 12, 2018. Respondent neither replied to the letter nor filed the required affidavit.
The complaint alleged that respondent willfully violated the Court's Order and failed to take the steps required of all suspended or disbarred attorneys, and, therefore, violated RPC 8.1(b) and RPC 8.4(d). By letter brief dated May 10, 2019, the OAE recommended the imposition of a censure.
We find that the facts recited in the complaint support the charges of unethical conduct. Respondent's failure to file an answer to the complaint 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).
Pursuant to R. 1:20-20(c), respondent's failure to file the R. 1:20-20 affidavit violates RPC 8.1(b) and RPC 8.4(d). The sole issue left for our determination is the appropriate quantum of discipline to be imposed for respondent's misconduct.
The threshold measure of discipline to be imposed for an attorney's failure to file the required affidavit of compliance is a reprimand. See In re Girdler, 179 N.J. 227 (2004). The actual discipline imposed may be different, however, if the record demonstrates mitigating or aggravating circumstances. See, e.g., In re Kinnard, 220 N.J. 488 (2015) (censure for attorney who failed to file the affidavit after a temporary suspension for his failure to pay disciplinary costs; the attorney also had ignored the OAE's request that he file the affidavit); In re Palfy, 221 N.J. 208 (2015) (three-month suspension for attorney who exhibited a pattern of failure to cooperate with disciplinary and fee arbitration officials; he was twice temporarily suspended for non-compliance with five separate fee arbitration matters and was temporarily suspended for failure to cooperate with an OAE investigation; we determined that the baseline for attorneys who failed to file R. 1:20-20 affidavits, defaulted, and had only temporary suspensions on their record was a censure; but enhanced the discipline because of the attorney's "pattern of obstinacy toward ethics and fee authorities"); In re Rosanelli, 208 N.J. 359 (2011) (six-month suspension for attorney who failed to file the affidavit of compliance after a temporary suspension in 2009 and after a three-month suspension in 2010; prior six-month suspension); and In re Rifai, 213 N.J. 594 (2013) (one-year suspension following two three-month suspensions in early 2011, attorney failed to file affidavit; ethics history also included two reprimands).
Respondent's misconduct is most similar to that of the attorney in Kinnard, who received a censure for failing to file the R. 1:20-20 affidavit following a temporary suspension. Based on disciplinary precedent, we determine that a censure is the quantum of discipline necessary to protect the public and preserve confidence in the bar.
Members Petrou, Rivera, and Zmirich voted to impose a three-month suspension. Vice-Chair Gallipoli voted to recommend respondent's disbarment and filed a dissent. 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
Bruce W. Clark, Chair
By:/s/_________
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Decided: December 26, 2019 Disposition: Censure
| Members | Censure | Three-MonthSuspension | Disbar | Recused | Did NotParticipate |
|---|---|---|---|---|---|
| Clark | X | ||||
| Gallipoli | X | ||||
| Boyer | X | ||||
| Hoberman | X | ||||
| Joseph | X | ||||
| Petrou | X | ||||
| Rivera | X | ||||
| Singer | X | ||||
| Zmirich | X | ||||
| Total: | 4 | 3 | 1 | 0 | 1 |
/s/_________
Ellen A. Brodsky
Chief Counsel