Opinion
Docket No. DRB 12-252 District Docket No. VII-2012-0025E District Docket No. VII-2012-0024E District Docket No. VII-2012-0023E District Docket No. VII-2012-0022E District Docket No. VII-2012-0021E District Docket No. VII-2012-0020E
04-25-2013
IN THE MATTERS OF KEVIN H. MAIN AN ATTORNEY AT LAW
Decision
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
These default matters were previously before us at our May 17, 2012 session. At that time, we granted respondent's counsel's motion to vacate the defaults. We remanded the matters to the District VII Ethics Committee (DEC) and directed it to consolidate them. We also directed respondent to file a timely, verified consolidated answer within thirty days. Because respondent's counsel filed an unverified answer on behalf of his client, the DEC again certified the matters as defaults.
The six complaints charged respondent with having violated various combinations of RPC 1.1(a) (gross neglect), RPC 1.1(b) (pattern of neglect), RPC 1.3 (lack of diligence), RPC 1.4(a) (failure to inform a prospective client of how, when, and where the client can communicate with the lawyer), RPC 1.4(b) (failure to communicate with the 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), RPC 1.16, presumably (a)(2) (failure to withdraw from the representation when the lawyer's physical or mental condition impairs the lawyer's ability to represent the client), RPC 8.1(b) (failure to cooperate with disciplinary authorities), RPC 8.4(a) (violating or attempting to violate the Rules of Professional Conduct). RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and RPC 8.4(d) (conduct prejudicial to the administration of justice).
For the reasons expressed below, we determine to impose a prospective two-year suspension on respondent.
Service of process was proper. By copy of our letter, dated May 21, 2012, respondent, through counsel, was informed that we had vacated the defaults against him and directed him to file a verified answer to the complaints within thirty days of the letter.
When, in late June 2012, respondent had not yet filed an answer, the DEC secretary contacted respondent's attorney, Benjamin Cittadino, to extend the time for respondent to file a verified answer. Cittadino informed the DEC secretary that his attempts to have respondent verify the answer to the complaints were unsuccessful.
On July 16, 2012, the DEC secretary received respondent's unverified answer attached to Cittadino's cover letter. Cittadino's letter explained that he had communicated with respondent about the applicable deadlines for filing the answer. Afterwards, Cittadino was unable to reach respondent to have him sign a verification. Because respondent did not file a verified answer, on July 18, 2012, the DEC again certified the matters as defaults.
Respondent was admitted to the New Jersey bar in 1988. He practiced law at the firm of Spadaccini & Main, LLC, in Lawrenceville, New Jersey, and later opened an office in Princeton, New Jersey. As seen below, he is currently suspended from the practice of law.
On April 30, 2010, respondent received an admonition for failure to cooperate with an ethics investigation. In the Matter of Kevin H. Main, DRB 10-046 (April 30, 2010).
In 2011, respondent was suspended for three months, effective June 11, 2011, for misconduct in four consolidated default matters. Specifically, he was found guilty of gross neglect in two matters; lack of diligence in two matters; misrepresentation in one matter; failure to deliver funds to a client in one matter; and failure to communicate with clients and failure to cooperate with ethics authorities in all four matters. In re Main, 206 N.J. 66 (2011). The Court ordered that, prior to reinstatement to practice law, respondent provide proof of fitness to practice law and that, upon reinstatement, he be supervised by a proctor for a two-year period.
In another default matter, respondent received an additional, consecutive three-month suspension, effective September 12, 2011, for misconduct in one client matter. There, he failed to file a complaint on behalf of the client, causing the statute of limitations to expire. He also failed to reply to his client's numerous attempts to contact him. Respondent was found guilty of gross neglect, lack of diligence, pattern of neglect, failure to communicate with the client, failure to promptly turn over the client's file, and failure to cooperate with the ethics investigation in the matter. In re Main, 208 N.J. (2011).
The Court ordered the same conditions imposed in the prior order of suspension.
On June 8, 2012, the Court imposed a two-year suspension on respondent, effective immediately, for his conduct in six matters. He was found guilty of gross neglect and lack of diligence in five matters, failure to communicate and failure to cooperate with disciplinary authorities in all of the matters, misrepresentation in two matters, failure to turn over a file in one matter, and pattern of neglect. The Court ordered the same conditions previously imposed in respondent's earlier matters. In re Main, 210 N.J. 256 (2012).
1. The Julio Pio Torres Matter - Docket No. VII-2012-0020E (formerly VII-2011-0014E)
The complaint in this matter charged respondent with having violated RPC 1.1(a), RPC 1.4(b), RPC 1.3, and RPC 8.1(b).
According to the complaint, on an unspecified date, Julio Torres retained respondent for a third-party claim related to a workers' compensation injury sustained on March 5, 2008, when Torres lost his left foot. Torres executed a retainer agreement. Respondent took all of Torres' documents relating to the injury, including, but not limited to, medical reports, accident reports, workers' compensation claim information, and other related documents.
Following their meeting, Torres spoke to respondent three times to obtain information about the status of his case. The telephone calls took place more than one year before the DEC filed the ethics complaint (August 4, 2011). Torres received no further information from respondent about his case.
Despite Torres' repeated voice-mail messages requesting that respondent return his file, he heard nothing further from respondent and did not receive his documents.
Respondent also failed to reply to the DEC's requests for information made on February 24, March 16, and April 7, 2011.
The complaint alleged that respondent's "failure to communicate is in violation of RPC 1.1(a);" that his "failure to communicate is not an isolated incident in that he has been disciplined before for violating RPC 1.1(a) in the recent past with respect to four other clients" that his failure "to act promptly as to the third party claim has resulted in irreparable harm in that the statute of limitations on the third party claim may have exhausted [sic];" that his "lack of prompt handling of the third party claims" violated RPC 1.3; that his failure to keep Torres informed about the status of his case violated RPC 1.4(b); and that his failure to comply with requests for information violated RPC 8.1(b).
2. The Torres/McDonald Matter - Docket No. VII-2012-0021E (formerly VII-2011-0018E)
The complaint in this matter charged respondent with having violated RPC 1.1(a), RPC 1.1(b), RPC 1.3, RPC 1.4 (a), (b) and (c), RPC 1.16, and RPC 8.4(a), (c), and (d).
On March 15, 2010, Debbie Torres and Scott McDonald (the grievants) retained respondent to defend McDonald in a criminal matter and to obtain the release of Torres' automobile, which had been seized in connection with the same incident leading to the charges against McDonald. The grievants paid respondent a $2,500 retainer.
After respondent's initial meeting with the grievants, he ceased communicating with them, despite their repeated telephone calls, emails and visits to his then-current and former offices. He also failed to inform them that, in August 2010, he had relocated his law office.
Torres retained another attorney for her vehicle seizure matter. As of the date of the ethics complaint, June 30, 2011, McDonald had not yet retained another attorney. Respondent failed to return the grievants' retainer.
Respondent also failed to reply to the grievance, which the complaint alleged constituted a violation of RPC 8.1. The complaint further alleged that respondent's abandonment of the grievants violated RPC 1.1(a), and that he "exhibited a pattern of negligence," a violation of RPC 1.1(b); that his failure to provide the services for which he was retained violated RPC 1.3; that, by accepting a retainer but failing to provide any services or failing to return the retainer he violated RPC 1.4, and RPC 8.4(a), (c), and (d) (more properly a violation of RPC 1.16(d)); that his failure to communicate with the grievants or to inform them that he had relocated his office violated RPC 1.4(a), (b), and (c); and that his failure to withdraw from the representation in the face of an apparent physical or mental condition that materially impaired his ability to represent the clients violated RPC 1.16, presumably (a)(2).
3. The Marvin Stines Matter - Docket No. VII-2012-0022E (formerly VII-2011-0027E)
The complaint in this matter charged respondent with having violated RPC 1.4, presumably (b) and (c), RPC 1.3, and RPC 8.1(b).
On an unspecified date, Marvin Stines retained respondent to represent him in a workers' compensation matter. At that time, respondent was practicing with the law firm of Spadaccini & Main, in Lawrenceville, New Jersey. Thereafter, respondent moved his office to Princeton.
Beginning in January 2011, respondent stopped returning Stines' telephone calls. Since that time, Stines' attempted to reach respondent on his office and cell phone numbers at least four times per week. On some days, he called respondent "consistently throughout the day," but the calls were made in vain. Stines' attempts to obtain information about the status of his workers' compensation case were fruitless.
Stines filed a grievance against respondent on May 28, 2011. The DEC requested a written reply to the grievance by letters dated June 1, June 21, and September 15, 2011. Respondent failed to reply to the letters. In September 2011, respondent returned Stines' files.
The complaint alleged that respondent failed to act with reasonable diligence and promptness in representing Stines, violating RPC 1.3; failed to keep Stines informed about the status of his matter, failed to reply to reasonable requests for information, and failed to explain the matter to the extent necessary to permit him to make informed decisions about the representation, violating RPC 1.4; and failed to reply to the DEC's lawful demands for information, violating RPC 8.1(b).
4. The Ruby Garrett Matter - Docket No. VII-2012-0023E (previously VII-2011-0028E)
This complaint charged respondent with violating RPC 1.4, presumably (b) and (c), RPC 1.3 (lack of diligence), and RPC 8.1(b) (failure to comply with reasonable requests for information from a disciplinary authority).
On an unspecified date, Ruby Garrett retained respondent while he was still with Spadaccini & Main, for representation in workers' compensation and personal injury matters. Respondent thereafter moved his office to Princeton.
Respondent did not reply to any of Garrett's inquiries about the status of her cases. The complaint further alleged that respondent failed to explain the matter to Garrett to the extent reasonably necessary to permit her to make informed decisions about the representation, in that he did not return his client's telephone calls, thus violating RPC 1.4, presumably (b) and (c). The complaint also alleged that, "[b]y reason of the foregoing conduct," respondent violated RPC 1.3 by failing to act with reasonable diligence and promptness "in representing a client."
In addition, the complaint alleged that, on June "16," 2011, Garrett filed two grievances against respondent and that, on June "15," 2011, the DEC secretary forwarded the grievances and requested a reply within ten days. The DEC sent additional letters to respondent on June 28 and September 15, 2011. Respondent's failure to reply to any of the DEC's letters led to the RPC 8.1(b) charge in the complaint.
Either the date on the DEC's letter is wrong or the complaint is wrong.
5. The Nicole Adams Matter - Docket No. VII-2012-0024E (previously VII-2011-0029E)
The complaint charged respondent with having violated RPC 1.1(a) and (b), RPC 1.3, RPC 1.4(b) and (c), and RPC 8.1(b).
On an unspecified date, Nicole Adams retained respondent to represent her in a personal injury matter. Beginning in the spring of 2009, Adams attempted to communicate with respondent and called him on his office and cell phone numbers at least once a month. He did not return her calls.
In September 2010, the receptionist at the firm of Spadaccini & Main informed Adams that respondent was no longer at that firm. On October 25, 2010, Adams waited outside of respondent's new law office. When she met with him, he apologized and stated that he had been busy and that the litigation was proceeding apace.
In January 2011, Adams tried to contact respondent, but he did not return her call. As of the date of the ethics complaint, October 18, 2011, Adams did not know the status of her personal injury case. The complaint charged respondent with violating RPC 1.4(b) and (c).
Accordingly to the complaint, respondent permitted Adams' personal injury matter "to lapse." Adams believed that her case had been dismissed. The complaint charged respondent with violating RPC 1.3, by failing to act with reasonable diligence and promptness in representing Adams. The complaint also alleged that, by reason of "the foregoing conduct and neglect, respondent violated RPC 1.1 [presumably (a) and (b)] by committing gross negligence, and a patter[n] of negligence, in his representation of Adams in the medical malpractice matter."
On June 7, 2011, Adams filed a grievance against respondent. On June 13, June 28, and September 15, 2011, the DEC sent letters to respondent requesting a reply to Adams' grievance. As of the date of the complaint, respondent had not replied, resulting in the charge that he violated RPC 8.1(b).
6. The Camerino Garcia Matter — Docket No. VII-2012-0025E (previously XIV-2010-0342E)
The complaint charged respondent with having violated RPC 1.1(a), (the complaint mistakenly cited 1.1(b)), RPC 1.3, and RPC 1.4(b).
In September 2006, Camerino Garcia retained respondent to represent him in a personal injury action for eye injuries he sustained on March 12, 2005, while he was a tenant in a house owned by a company known as JEVN. Garcia signed a retainer agreement. Respondent then "sent a letter of representation and compiled medical records."
On the date the statute of limitations would have expired, March 12, 2007, respondent filed a complaint against JEVN, LLC. The complaint was served on April 18, 2007. Thereafter, the defendant filed an answer and routine discovery commenced.
It appears that, although Garcia provided answers to one set of interrogatories, he did not provide answers to a second set propounded by the defendant. On August 17, 2007, the defendant provided answers to Garcia's interrogatories and moved to dismiss Garcia's complaint for failure to answer interrogatories. On August 21, 2007, respondent forwarded draft interrogatory answers to Garcia and asked him to return the answers as soon as possible. Garcia complied around August 31, 2007. The defendant withdrew his motion to dismiss the complaint on September 18, 2007.
By letter dated October 5, 2007, the defendant reminded respondent that he had not supplied an expert's report on causation and gave him sixty days to do so. On November 5, 2007, the defendant repeated the request and threatened to file a motion to dismiss if respondent failed to provide the expert's report.
It was not until January 25, 2008, two months after the first request, that respondent wrote to Garcia's doctor seeking an expert's report on the causation of Garcia's eye injury. Receiving no reply from the doctor, on February 27, 2008, respondent sent him a second request. Once again, the doctor failed to reply. Respondent, therefore, did not obtain the requisite report to support Garcia's cause of action.
On April 3, 2008, the defendant moved for summary judgment. On May 2, 2008, an arbitration hearing took place, at which time liability was assessed at fifty percent for each party, "with a total damage amount of $50,000."
The day before the summary judgment motion was to be heard, respondent sought a two-week adjournment of the motion to file his opposition, asserting a lack of cooperation from Garcia's treating physician. The court denied the adjournment and, on May 9, 2008, granted partial summary judgment as unopposed, "striking the claim for eye injury."
Respondent neither provided Garcia with a copy of the order nor told him about it. On May 14, 2008, the defendant moved for reconsideration of the prior order, seeking full summary judgment. Respondent did not oppose the motion or advise Garcia about it. In addition, on May 14, 2008, the defendant appealed the arbitration award. Respondent did not take any action on the appeal and did not inform Garcia about it.
On June 10, 2008, the summary judgment motion, which proceeded unopposed, was granted. Respondent did not provide Garcia with a copy of the order or inform him about it.
Eight months later, by letter dated February 11, 2009, Garcia requested that respondent provide him with copies of all of his documents. Respondent did not reply to that letter. Garcia called respondent's office twice a week for more than a year. His calls were either not returned or he was told to call back. When he did so, it was to no avail.
According to Garcia, the last written communication he received from respondent was a March 21, 2008 letter informing him about the arbitration hearing. The last time he met with respondent was at that May 2, 2008 arbitration hearing. Although Garcia attempted to telephone respondent about the status of his matter on numerous occasions, respondent failed to return his calls.
In all of the complaints consolidated in this matter, the mitigation is the same as that proffered in the original default matters — a one-page, April 25, 2012 letter, from respondent's therapist, J. Randall Nichols, Ph.D., from Trinity Counseling Service, describing respondent's personal problems. According to Nichols, respondent began therapy with him, in February 2012, with "an established previous diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) inattentive type, and Major Depression." Nichols stated that respondent had previously undergone successful treatment for both, but had prematurely stopped his medication and therapy. Respondent resumed his medication and therapy because of the "resulting considerable personal and professional turmoil." Nichols stated that respondent's new psychiatrist at Trinity confirmed respondent's diagnosis. Nichols added that respondent is currently in the early stages of resuming appropriate medication and psychotherapy for both conditions.
According to Nichols, respondent was open about, and took responsibility for, his professional and personal lapses. Because respondent is "highly intelligent," his ADHD learning disability went unnoticed and undiagnosed during his school years. He compensated for the condition and "got by."
Nichols added that, when respondent began practicing law as a prosecutor he enjoyed the work and did an adequate job. However, when he started practicing in a general civil practice, his ADHD rendered him "essentially dysfunctional." Nichols stated:
It makes good sense that in a prosecutorial environment of episodic, discrete cases and
tasks, with a high saliency level and clear procedures an ADHD person like Kevin would do well, even excel. Given the greater complexity, lower saliency or interest, and the greater interpersonal stresses of a general civil practice, the failure of an ADHD to thrive makes the same sense for the same reasons. Analogously, for instance, an ADHD physician may perform brilliantly as an Emergency Room or crisis care doctor but dissolve in confusion and seeming incompetence in a more extended care and less exciting practice.
Nichols explained further that ADHD is not a "'mental illness' or 'emotional dysfunction,' but rather a physiological brain disorder involving attention centers in which the brain lacks the ability to dis-attend to non-salient events and establish concentration on a limited area of an otherwise complex stimulus field." Successful treatment involves medication to improve attentiveness and therapy to help patients develop coping mechanisms so that "the limitations of the illness do not generate ethically or morally negative consequences." Nichols added:
The dissolution of Kevin's marriage, the apparent failure of people close to him to appreciate the role of his psychopathology and illness in his behavior, and the subsequent erosion of his personal relationships with colleagues, friends and family all contributed to a growing depression which when combined with and reinforcing the ADHD created something of a "perfect storm" of dysfunction.
The facts recited in the ethics complaints support the charges of unethical conduct. Respondent's failure to file answers to the complaints is deemed an admission that the allegations of the complaints are true and that they provide a sufficient basis for the imposition of discipline. 1:40-4(f).
As to the Julio Torres matter, the complaint does not allege specifically that the statute of limitations expired on Torres' third-party claim; only that, presumably, it may have expired. Therefore, there is no clear and convincing evidence that respondent grossly neglected the matter. The allegations do establish that respondent lacked diligence (RPC 1.3), failed to communicate with Torres (RPC 1.4(b)), and failed to cooperate with the DEC's investigation (RPC 8.1(b).
In the Torres/McDonald Matter, the allegations support the findings that respondent lacked diligence (RPC 1.3), failed to communicate with his clients (RPC 1.4(b)), and failed to cooperate with the DEC's investigation in the matter (RPC 8.1(b)).
We dismiss the remaining charges (RPC 1.1(a), RPC 1.1(b), RPC 8.4(a), (c), and (d), and RPC 1.4(a) and (c)) because they are either inapplicable or because the complaint did not allege sufficient facts to support them. R.1:20-4(b) requires a complaint to set forth "sufficient facts to constitute fair notice of the nature of the alleged unethical conduct, specifying the ethical rules alleged to have been violated."
As seen below, we do find a violation of RPC 1.1(b), but in connection with another matter, Garcia.
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On the other hand, there will be no due process violation in finding that respondent violated RPC 1.16(d) (failure to return an unearned retainer). Although the complaint mistakenly charged that respondent's failure to perform any services for his clients and to refund their retainer was a violation of RPC 1.4, and RPC 8.4(a),(c) and (d), the facts alleged in the complaint gave respondent ample notice that RPC 1.16(d) was also implicated. We, therefore, find that respondent violated that rule and determine that he should be required to refund the unearned retainer to the grievants.
In the Stines matter, the allegations of this complaint establish that respondent failed to communicate with Stines (RPC 1.4(b)) and failed to reply to the DEC's requests for information (RPC 8.1(b)). Because the complaint did not allege sufficient facts to find that respondent violated RPC 1.3 and RPC 1.4(c), we dismiss those charges.
The complaint in the Garrett matter does not allege any facts to support a finding that respondent did not take any action on her behalf or that he did not explain the matter sufficiently to her to allow her to make informed decisions about the representation. Therefore, we dismiss the RPC 1.3 and RPC 1.4(c) charges. The allegations establish, however, that respondent did not communicate with Garrett after she retained him (RPC 1.4(b)) and that he did not cooperate with the DEC's investigation (RPC 8.1(b)). Respondent's gross neglect in this matter when considered with the gross neglect he exhibited in his prior ethics matters, constitutes a pattern of neglect.
The complaint in the Adams matter does not establish that her case was dismissed; only that she "believed" that it had been and that respondent "allowed her personal injury case to lapse." It is not clear whether respondent agreed to represent her in a personal injury case or a medical malpractice case. The allegations of the complaint, thus, do not establish, by clear and convincing evidence, violations of RPC 1.1(a) and RPC 1.3. Likewise, the complaint does not allege sufficient facts to support a finding that respondent violated RPC 1.4(c).
Respondent did, however, fail to communicate with Adams and did not cooperate with the DEC's investigation in the matter, violations of RPC 1.4(b) and RPC 8.1(b), respectively.
In the Garcia matter, the allegations establish that respondent engaged in gross neglect, lacked diligence, and failed to communicate with Garcia. Here, too, respondent failed to cooperate with ethics authorities by failing to file an answer to the ethics complaint.
Altogether, respondent violated RPC 1.4(b) and RPC 8.1(b) in all matters; RPC 1.3 in three matters (Garcia, Torres, and Torres/McDonald), RPC 1.1(a) in one matter (Garcia), 1.16(d) in one matter (Torres/McDonald), and RPC 1.1(b), when the gross neglect in Garcia is considered with his prior ethics matters.
Respondent's current and prior matters total eighteen. Although his violations were not of a very serious nature, he is guilty of minor misconduct on a grand scale. Respondent's ethics problems began in 2004 and escalated around 2009.
In his earlier ethics matters, respondent attempted to file a motion to vacate his defaults but was unsuccessful (In re Main, 206 N.J. 66 (2011) (three-month suspension for misconduct in four default matters). In his most recent matter, we found it likely that respondent's depression affected his law practice and that there was no evidence that his misconduct was a result of indolence, greed, or callous indifference to his clients' interests. In the Matters of Kevin H. Main, DRB 11-203, 11-207, 11-208, 11-209, 11-210 and 11-211 (December 20, 2011) (two-year suspension).
Thus, the situation here is unlike that presented in In re Tunney, 209 N.J. 427 (2012) (disbarred). In that case alone, we considered ten matters. In the aggregate, Tunney's disciplinary matters totaled twenty-five. We found that he had
shown utter disregard for the ethics authorities, ignoring the investigators' requests for information about the grievances and for the production of records and defaulting in nine matters. And he has chosen to ignore the lessons that he was expected to have learned from his prior brushes with the disciplinary system.
It should be noted that respondent did not, in any way, suggest that his inaction in the more recent matters was the result of a reoccurrence of his mental health problems.
fin the Matters of John A. Tunney, DRB 10-249 et al. (December 21, 2011) (slip op. at 65-66).]
Here, because it appears that respondent's ethics improprieties did result from his mental health problems and because this is not a situation where he failed or refused to learn from prior mistakes, unlike Tunney, the ultimate discipline (disbarment) is not warranted. More properly, a term of suspension is the right discipline.
Generally, suspensions ranging from six months to two years have been imposed for combinations of ethics infractions in multiple matters that are similar to those committed by respondent. See, e.g., In re Pollan, 143 N.J. 306 (1996) (six-month suspension for attorney who in seven matters engaged in gross neglect, pattern of neglect, failure to communicate with clients, failure to turn over a client's file, misrepresentations, recordkeeping violations, and failure to cooperate with disciplinary authorities); In re Griffin, 170 N.J. 188 (2001) (on a motion for reciprocal discipline involving seven client matters, one-year suspension for attorney guilty of pattern of neglect, failure to communicate with clients, and failure to cooperate with disciplinary authorities); In re Kanter, 162 N.J. 118 (1999) (one-year suspension for attorney who displayed gross neglect, pattern of neglect, lack of diligence and failure to communicate with clients in five matters; in three of the matters he failed to prepare retainer agreements and, in one of the matters, failed to expedite litigation); In re Lawnick, 162 N.J. 113 (1999) (default matter; one-year suspension for attorney who agreed to represent clients in six matters and took no action to advance their claims, failed to communicate with clients and failed to cooperate with disciplinary authorities); In re Herron, 140 N.J. 229 (1995) (one-year suspension for attorney who, in seven client matters, engaged in gross neglect, pattern of neglect, lack of diligence, failure to communicate with clients, failure to deliver funds and to surrender papers to a client, failure to cooperate with ethics authorities, and misrepresentation of the status of matters to clients); In re Rosenthal, 118 N.J. 454 (1990) (one-
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
Louis Pashman, Chair
By: ______________________
Julianne K. DeCore
Chief Counsel
year suspension for attorney who exhibited gross neglect, failed to seek lawful objectives of clients and failed to carry out contracts of employment in three matters, failed to communicate with his clients in two of the matters, failed to refund a retainer in one of the matters, displayed a pattern of neglect, and failed to cooperate with ethics authorities); and In re Kanter, 149 N.J. 396 (1997) (two-year suspension in a default, for misconduct in eleven matters, including gross neglect, lack of diligence, failure to communicate with clients, failure to turn over files upon conclusion of the representation, failure to expedite litigation, conduct involving dishonesty, deceit or misrepresentation, and failure to cooperate with disciplinary authorities).
In our view, because this is the second time that respondent defaulted in connection with these matters and because of his extensive disciplinary record, an additional, prospective suspension of two years should give him sufficient time to resolve his personal issues. If he can do so, he may be able to resume the practice of law.
In addition, all of the conditions previously imposed by the Court should remain in effect.
Member Baugh did not participate.
D-72 September Term 2012
072154
IN THE MATTER OF KEVIN H. MAIN, AN ATTORNEY AT LAW
(Attorney No. 041121988)
ORDER
The Disciplinary Review Board having filed with the Court its decision in DRB 12-252, concluding on the record certifiled to the Board pursuant to Rule 1: 20-4(f) (default by respondent), that KEVIN H. MAIN of PRINCETON, who was admitted to the bar of this State in 1988, and who has been suspended from the practice of law since June 11, 2011, should be suspended from the practice of law for a period of two years for violating RPC 1.1(a)(gross neglect), RPC 1.1(b)(pattern of neglect), RPC 1.3(lack of diligence), RPC 1.4(failure to communicate with client), RPC 1.16(d)(failure to return unearned retainer), RPC 8.1(b)(failure to cooperate with disciplinary authorities);
And the Disciplinary Review Board having further concluded that prior to reinstatement to practice, respondent should be required to provide proof of his fitness to practice law and that following reinstatement, he should be supervised in the practice of law for a period of two years;
And good cause appearing;
It is ORDERED that KEVIN H. MAIN is suspended from the practice of law for a period of two years and until the further Order of the Court, effective immediately; and it is further
ORDERED that prior to reinstatement to practice law, respondent shall submit proof of his fitness as attested to by a mental health professional approved by the Office of Attorney Ethics and following reinstatement, respondent shall practice law under the supervision of a practicing attorney approved by the Office of Attorney Ethics for a period of two years and until the further Order of the Court; and it is further
ORDERED that respondent continue to comply with Rule 1:20-20 dealing with suspended attorneys; and it is further
ORDERED that pursuant to Rule 1:20-20(c), respondent's failure to comply with the Affidavit of Compliance requirement of Rule 1:20-20(b)(15) may (1) preclude the Disciplinary Review Board from considering respondent's petition for reinstatement for a period of up to six months from the date respondent files proof of compliance; (2) be found to constitute a violation of RPC 8.1(b) and RPC 8.4(c); and (3) provide a basis for an action for contempt pursuant to Rule 1:10-2; and it is further
ORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs and actual expenses incurred in the prosecution of this matter, as provided in Rule 1:20-17.
WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this 24th day of April, 2013.
CLERK OF THE SUPREME COURT