Opinion
Docket No. DRB 18-319 Docket No. DRB 18-320 Docket No. DRB 18-321
03-29-2019
In The Matter Of M. Blake Perdue An Attorney At Law
Disciplinary Review Board
District Docket Nos. XA-2016-0018E; XA-2016-0025E; and XA-2016-0029E Decision
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
These matters were before us on three certifications of the record filed by the District XA Ethics Committee (DEC), pursuant to R. 1:20-4(f). The complaints charged respondent with violations of RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), RPC 1.4(b) and (c) (failure to communicate with the client), RPC 1.16(b) (failure to properly withdraw from the representation), RPC 1.16(d) (failure to protect the client's interests and to return the file upon termination of the representation), RPC 3.2 (failure to expedite litigation), RPC 4.4(b) (failure to promptly notify the sender of attorney/client privileged information), RPC 8.1(b) (failure to cooperate with an ethics investigation), RPC 8.4(a) (attempt to violate the RPCs), 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 totality of respondent's misconduct in the matters, we determine to impose a six-month suspension.
Respondent was admitted to the New Jersey bar in 2014. He has no prior discipline. He was declared ineligible to practice law on August 28, 2017 for failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection, and remains ineligible to date. The PP Matter - Docket No. DRB 18-319
Service of process was proper in this matter. On December 4, 2016, during the ethics investigation of DRB 18-320 (the ML matter), the DEC received an e-mail from respondent indicating that he had closed his law office and that all future correspondence should be sent to him at his home address, which he provided.
On October 24, 2017, the DEC sent the complaint by certified and regular mail to the address that respondent provided. The certified mail was unclaimed and returned by the United States Postal Service (USPS), marked with a new address. The regular mail was not returned.
On November 28, 2017, the DEC sent a "five-day" letter by certified and regular mail to respondent at the home address that respondent had provided on December 4, 2016, not to the new address received from the USPS. The letter informed respondent that, if he did not answer 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 imposition of discipline, and the complaint would be amended to charge a violation of RPC 8.1(b). The certified mail and the regular mail were not returned.
On June 24, 2018, in connection with a different disciplinary matter, the DEC received an envelope returned by the USPS, post-marked June 14, 2018, and identifying respondent's new home address in New York. On June 28, 2018, the DEC mailed a copy of the "five-day" letter to respondent at the New York address. The certified mail was received, having been signed for on July 3, 2018 by "R. Delgado." The regular mail was not returned.
The time within which respondent may file an answer has expired. No answer was filed as of July 16, 2018, the date of the certification of the record.
We now turn to the facts of the complaint. On September 4, 2015, PP retained respondent to represent her in respect of pending domestic violence and divorce proceedings. On October 14, 2015, respondent told PP that he would receive the decision of her final restraining order (FRO) the next day. PP repeatedly inquired into the status of her FRO, but respondent failed to reply. In early November 2015, PP mailed her signed divorce complaint to respondent. Again, she contacted respondent regarding the status of her application for permanent restraints and of the divorce, but respondent failed to reply. In late January 2016, PP contacted respondent's wife, which prompted a reply from respondent.
Thereafter, however, respondent ignored PP's numerous telephonic, e-mail, and text message requests for updates about the status of her matter. On July 1, 2016, respondent finally sent an e-mail, stating that he had mailed a letter to PP "some time ago" about his decision to leave the practice of law, and claiming to have returned the remainder of her retainer. PP denied receipt of that letter. The complaint is otherwise silent about the return of the retainer. Throughout the representation, respondent never informed PP that he had not filed her divorce complaint.
According to the complaint, respondent's failure, over the course of the ten-month representation, to file PP's complaint for divorce constituted gross neglect, lack of diligence, and failure to expedite litigation, in violation of RPC 1.1(a), RPC 1.3, and RPC 3.2. Moreover, for respondent's failure to reply to PP's requests for information about the status of her matter, he was charged with violating RPC 1.4(b) and (c).
Further, during the representation, respondent sent communications to PP that misled her to believe that he was diligently pursuing both her domestic violence and divorce claims. Specifically, on October 26, 2015, respondent sent PP an e-mail stating, "I apologize, I believe I texted you on the 15th right after the judge read the decisions. The final restraining order was denied then. If you did not get it then, I am sorry." In January 2016, respondent assured PP that he had filed her divorce complaint. The following month, on February 16, 2016, he informed her that he had not yet received a date for "the default hearing," despite the fact that he had not filed a complaint for divorce. In March 2016, respondent again misled PP by stating that "default proceedings can unfortunately be slow," and that he had not had any contact from her estranged husband or his attorney. When PP independently investigated the status of her matter, she learned that no divorce complaint had been filed. Thus, respondent could not have made application for the entry of default. Respondent's dishonest conduct and misrepresentations were alleged to have violated RPC 8.4(c).
Finally, according to the complaint, respondent failed to reply to the investigator's written and telephonic requests for information about the grievance, in violation of RPC 8.1(b), RPC 8.4(a), and RPC 8.4(d). The ML Matter - Docket No. DRB 18-320
Service of process was proper in this matter. As mentioned above, on December 4, 2016, during this ethics investigation, respondent provided to the DEC a home address for service of process.
On November 20, 2017, the DEC sent the complaint to respondent at that home address, in accordance with R. 1:20-4(d) and R. 1:20-7(h). The certified mail was returned to the DEC unsigned. The regular mail was not returned.
On June 14, 2018, the DEC sent respondent a "five-day" letter at the same home address, informing him that, unless he filed a verified answer within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the record would be certified directly to us for imposition of discipline, and the complaint would be amended to include a violation of RPC 8.1(b).
The certified mail receipt was signed by "J. Brown" on June 19, 2018. The regular mail was returned by the USPS, indicating a forwarding address in New York. On June 28, 2018, the DEC sent respondent another "five-day" letter, to the New York address, by certified and regular mail. The certified mail return receipt was signed by "R. Delgado" indicating delivery on July 3, 2018. The regular mail was not returned.
The time within which respondent may answer the complaint has expired. As of the date of the certification of the record, respondent had not filed an answer.
The complaint alleged that the grievant, ML, retained respondent to represent his interests in respect of temporary restraining orders, divorce proceedings, and a matter before the Division of Child Protection and Permanency (DCP&P).
According to the complaint:
2. On April 29, 2016, Grievant's then-wife returned a cell phone to ML she had improperly purchased through Grievant's account.
3. Upon receipt of the phone, Grievant learned his then-wife had neither password protected the phone nor erased the electronic information stored on the phone.
4. ML informed Respondent the phone contained certain electronic information, including attorney-client communications between ML's then-wife and her attorney.
5. Respondent did not advise Grievant to cease reviewing the privileged information.
6. Respondent did not protect the privileged information from review.
7. Respondent did not disclose the existence of the information to his adversary in Grievant's divorce and related actions.
[1C¶1-¶7.]
1C refers to count one of the November 15, 2017 formal ethics complaint. --------
The complaint alleged that respondent violated RPC 8.4(a) "because Respondent knowingly assisted or induced [ML] to violate RPC 4.4(b), regarding the protection of privileged information between a lawyer and an adverse or third-party." In addition, the complaint alleged an RPC 4.4(b) violation for respondent's failure to tell his client not to review privileged information and to protect the information from review; his failure to disclose the existence of the information to his adversary in the divorce; and his failure to preserve the information. His conduct also violated RPC 8.4(d) "because Respondent engaged in conduct prejudicial to the administration of justice."
On October 3, 2016, after the finalization of the divorce, ML contacted respondent by e-mail about an upcoming October 11, 2016 telephonic court conference in the DCP&P matter. ML sought just "five minutes" of respondent's time to help complete motion forms that ML was preparing prior to the hearing. Later that day, ML sent respondent another e-mail and a proposed motion. The e-mail stated, "Here is my first stab at this. Need a few on the phone for some guidance and I can take it from there." Thereafter, ML sent respondent increasingly urgent e-mail requests seeking assistance prior to the DCP&P hearing. In an October 5, 2016 e-mail, he asked respondent: "Are you still alive? Can we please talk today as I need to file this tomorrow."
ML persisted in his attempts to reach respondent because respondent was supposed to appear on his behalf. In a final e-mail to respondent on the eve of the hearing, ML stated, "Can you at least respond to this and let me know you are going to be at court tomorrow because I am going to be appearing by phone and need to at least know that you will be there in person." The next morning, ML contacted the court directly about respondent's failure to reply to him. Only then did he learn that respondent had sent the court an e-mail indicating that he no longer represented ML, and requested an adjournment of the matter. Immediately thereafter, ML sent respondent another e-mail seeking respondent's explanation for the termination of the representation, but respondent failed to reply.
According to the complaint, respondent withdrew from the representation in a manner that materially and adversely affected his client's interests, a violation of RPC 1.16(b), and RPC 1.16(d) for his failure to take steps to protect his client's interests upon termination of the representation.
Finally, for respondent's failure to provide a written reply to the DEC's written requests for information about the grievance and to inform ethics authorities of his address change, the complaint alleged a violation of RPC 8.1(b). The CL Matter - Docket No. DRB 18-321
Service of process was proper in this matter. On November 20, 2017, the DEC sent a copy of the complaint to respondent at the home address he had provided to the investigator in December 2016. The certified mail and regular mail were not returned.
On June 14, 2018, the DEC sent a "five-day" letter to respondent, informing him that, if he did not file a verified answer within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the record would be certified directly to us for imposition of discipline, and the complaint would be amended to charge a violation of RPC 8.1(b). The certified mail receipt was signed by "J. Brown." The regular mail was not returned.
On June 14, 2018, the DEC then sent respondent another "five-day" letter to the home address that the USPS provided, informing him that, if his verified answer was not received within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the record would be certified directly to us for imposition of discipline; and the complaint would be amended to include a violation of RPC 8.1(b).
The certified mail receipt was signed by "J. Brown" on June 19, 2018. The regular mail was returned by the USPS, indicating a forwarding address in New York. On June 28, 2018, the DEC sent respondent another "five-day" letter, to the New York address, by certified and regular mail. The certified mail return receipt was signed by "R. Delgado" indicating delivery on July 3, 2018. The regular mail was not returned.
The time within which respondent may answer the complaint has expired. As of the date of the certification of the record, respondent had not filed an answer.
As to the allegations of the complaint, in January 2016, CL retained respondent to represent her in a divorce. Between June and October 2016, she sent respondent numerous e-mail requests for information about the representation. Respondent, however, failed to reply to her inquiries.
Further, respondent neither filed an answer to the husband's counterclaim nor advised CL how to proceed with a proposed mortgage modification agreement, which she was expected to execute as part of the divorce. A default judgment was entered against CL. For respondent's inactions, he was charged with violations of RPC 1.1(a), RPC 1.3, and RPC 3.2.
Although respondent sent CL a July 25, 2016 e-mail about an upcoming hearing, he did not address her concerns about the meaning of an adjournment and what the signing of a new mortgage modification agreement meant for the divorce. He ceased communicating with his client, and thereafter ignored her numerous text messages and e-mails requesting information about the case.
In October 2016, CL contacted the attorney who had referred her to respondent. When that attorney contacted him, respondent indicated that he longer practiced law, and then falsely claimed to have sent CL a letter explaining his decision to close his law practice.
According to the complaint, respondent's failure to reply to her numerous text messages and e-mails requesting information about the case violated RPC 1.4(b). His failure to address her concerns about the adjournment and mortgage modification constituted a failure to explain the matter to the extent reasonably necessary for CL to make informed decisions about the matter, a violation of RPC 1.4(c). His claim to have sent CL a letter about the office closing was a misrepresentation, in violation of RPC 8.4(c).
CL requested the return of her client file upon termination of the representation, but respondent failed to comply, which, the complaint charged, violated RPC 1.16(d).
Additionally, the complaint alleged that respondent failed to reply to the DEC's "written correspondences" seeking his written response to CL's November 22, 2016 grievance, and he failed to "meaningfully participate in the investigation" in violation of RPC 8.4(a), RPC 8.1(b), and RPC 8.4(d).
Following a review of the record, we find that the facts recited in the complaints support some, but not all, of 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. R. 1:20-4(f)(1). Nevertheless, each charge must contain sufficient facts to support a finding of unethical conduct.
In the PP matter, respondent was retained in September 2015 for a domestic violence matter and divorce. After preparing a draft complaint for the client, he never filed it. He also failed to reply to PP's numerous text messages and e-mails sent over the ensuing months seeking information about the status of her case. Respondent's inaction and failure to reply to his client's requests for information were in violation of RPC 1.1(a), RPC 1.3, and RPC 1.4(b) and (c), respectively.
On July 1, 2016, respondent finally replied to PP by e-mail, claiming to have previously sent her a letter informing her that he was leaving the practice of law and he had returned the remainder of her retainer. PP, however, received no such letter. Respondent also misled his client to believe that he was diligently pursuing her matters, falsely claiming in January 2016 to have filed the divorce complaint, and in a February 16, 2016 e-mail, to have been awaiting a hearing on the entry of default. Both assertions were untrue, in violation of RPC 8.4(c).
Finally, respondent's failure to provide a written reply to the grievance and to cooperate with the ethics investigation constituted a violation of RPC 8.1(b).
Several charges, however, are without factual support. Inasmuch as respondent never filed a complaint, there was no litigation to expedite. Therefore, we dismiss the RPC 3.2 charge, as not applicable. Likewise, we dismiss the RPC 8.4(a) charge, as subsumed in his violations of other RPCs. The facts in the complaint do not support a finding that respondent engaged in conduct prejudicial to the administration of justice. For that reason, we dismiss the RPC 8.4(d) charge as well.
In summary, in the PP matter, respondent violated RPC 1.1(a), RPC 1.3, RPC 1.4(b) and (c), RPC 8.1(b), and RPC 8.4(c).
In the ML matter, respondent was retained in respect of temporary restraining orders, divorce proceedings, and a matter involving the DCP&P. During the representation, ML came into possession of a cell phone containing privileged attorney/client information belonging to his then-wife. ML apparently told respondent about his possession of that phone. The complaint alleged that respondent "knowingly assisted or induced [his client] to violate RPC 4.4(b), regarding the protection of privileged information between a lawyer and an adverse or third-party."
The complaint, however, does not allege that respondent ever took possession of the cellular phone or any information from it. RPC 4.4(b) states, in relevant part, that a "lawyer who receives a document or electronic information and has reasonable cause to believe that the document or information was inadvertently sent should not read the document or information or, if he or she has begun to do so, shall stop reading it." (emphasis added.) Likewise a "lawyer who receives a document or electronic information that contains privileged lawyer-client communications involving an adverse or third party and who has reasonable cause to believe that the document or information was wrongfully obtained shall not read the document or information or, if he or she has begun to do so, shall stop reading it." (emphasis added.)
Although RPC 4.4(b) governs attorney conduct, not client conduct, it is well settled that, under RPC 8.4(a), an attorney may not do indirectly, what he or she may not do directly. Therefore, respondent may be culpable for ML's actions, under some circumstances. Implicit in the Rule, however, is the attorney's receipt of the document or electronic information in question. Here, there are no facts in the complaint that respondent took possession of the cellular phone or viewed any of its allegedly attorney/client privileged contents.
To the extent other RPCs may be applicable, no other RPCs were charged related to respondent's conduct involving ML's possession of the cell phone.
In Advisory Committee on Professional Ethics Opinion 680, 139 N.J.L.J. 202 (1995), a somewhat similar fact pattern was presented for review. During a meeting for document inspection held at the office of the attorney's two clients, a recess was taken. During the recess, when all of the attorneys for both sides were absent from the room, the two clients improperly accessed briefcases belonging to their adversaries' attorneys. Upon the return of their own attorney, the clients informed her that they had secured and copied some documents belonging to their adversaries — documents that might prove useful. The attorney refused to review the documents and did not disclose the events to anyone else at the time. Rather, she returned to her law office and reported the events to her supervising attorney, who ultimately contacted the Advisory Committee on Professional Ethics (A.C.P.E.) for guidance.
The A.C.P.E. Opinion focused on "the fact that the clients gained access, without permission, to private, confidential documents of adversaries in litigation." The issue did not implicate RPC 3.4 (fairness to opposing party or counsel) or RPC 4.1 (truthfulness in statements to others). Moreover, the lawyer had not used methods to obtain evidence that would violate the legal rights of a third person, under RPC 4.4. Rather, the actions had been taken by the client. However, the opinion continued that, under RPC 8.4(a), an attorney may not accomplish indirectly, "that which is prohibited directly." The A.C.P.E. concluded that the scenario fell within RPC 1.6(c)(3), involving disclosure to the adversary to avoid the prejudicial effect that the knowledge gained by the clients posed to the administration of justice (RPC 8.4(d)). The opinion left it to the law firm to decide whether it should withdraw from the representation (A.C.P.E. Opinion 680, 139 N.J.L.J. 202).
Here, too, it is possible that disclosure to ML's adversary may have been required to prevent the use of improperly obtained information. The complaint, however, lacks facts that the privileged information on the cell phone was material to the representation, that it was accessed by ML and/or respondent, or that it was used for any purpose, let alone to benefit ML.
Under these circumstances, although there is a hint of culpability on respondent's part, we conclude that the facts do not provide clear and convincing evidence that respondent violated RPC 8.4(a) and RPC 4.4(b). Those charges are dismissed.
Likewise, the complaint is devoid of information that respondent's actions actually prejudiced the administration of justice. We dismiss the RPC 8.4(d) charge, too, for lack of clear and convincing evidence.
RPC 1.16 governs an attorney's declination or termination of a representation. The complaint charged respondent with a violation of subsection (b)(1), which addresses the circumstances under which an attorney may withdraw from a representation, as follows: "Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client." Because this is a permissive Rule, we dismiss the charge that respondent violated this subsection.
The complaint also charged a violation of RPC 1.16(d). Upon termination of the representation, a lawyer must take reasonable steps to protect the client's interests, such as giving the client reasonable notice of the termination, allowing ample time for the retention of another attorney, and returning the client's file. Here, respondent took no such steps to protect his client's interests. In fact, ML was unaware that his attorney had abandoned him, finding out that respondent had terminated the representation only when he contacted the court on the day of a court hearing. Respondent's actions in this regard violated RPC 1.16(d).
Finally, respondent failed to reply to the DEC investigator's written requests for information about the grievance, and then failed to file an answer to the complaint, violations of RPC 8.1(b).
In summary, in the ML matter, respondent violated RPC 1.16(d) and RPC 8.1(b).
In the CL matter, the client retained respondent in January 2016 to represent her in a divorce. Between January and October 2016, respondent failed to file an answer to the husband's counterclaim or to advise CL how to proceed with a mortgage modification. As a result, a default judgment was entered against CL. Respondent's inaction constituted gross neglect and lack of diligence, in violation of RPC 1.1(a) and RPC 1.3, respectively.
Respondent also ignored CL's numerous text messages and e-mails seeking information about her matter, and failed to provide her with critical information so that she could make informed decisions about the representation, violations of RPC 1.4(b) and (c), respectively. Thereafter, he failed to return the client file upon termination of the representation, a violation of RPC 1.16(d).
Further, respondent failed to reply to the DEC investigator's written requests for information about the grievance and otherwise failed to answer the complaint, in violation of RPC 8.1(b).
Respondent also misrepresented to the referring attorney that respondent had sent CL a letter notifying her about his decision to leave the practice of law. CL never received such a letter from respondent. Thus, respondent's actions violated RPC 8.4(c).
We determine to dismiss the RPC 3.2 charge, that respondent failed to expedite CL's litigation, inasmuch as respondent never initiated any litigation. We also dismiss the RPC 8.4(a) charge as subsumed in respondent's other ethics infractions. Finally, the complaint is without facts to support a finding that respondent engaged in conduct that actually prejudiced the administration of justice, for which we dismiss the RPC 8.4(d) charge.
In summary, in the CL matter, respondent violated RPC 1.1(a), RPC 1.3, RPC 1.4(b) and (c), RPC 1.16(d), RPC 8.1(b) and RPC 8.4(c).
In the PP matter, respondent violated RPC 1.1(a), RPC 1.3, RPC 1.4(b) and (c), RPC 8.1(b), and RPC 8.4(c).
In the ML matter, respondent violated RPC 1.16(d) and RPC 8.1(b).
Generally, in default matters, a reprimand is imposed for gross neglect and failure to cooperate with disciplinary authorities, even if this conduct is accompanied by other, non-serious ethics infractions. See, e.g., In re Robinson, 223 N.J. 289 (2015) (gross neglect, lack of diligence, failure to communicate with the client, and failure to cooperate with disciplinary authorities); In re Brandmayr, 220 N.J. 34 (2014) (attorney failed to act with diligence and failed to communicate with his client; prior reprimand); and In re Rak, 203 N.J. 381 (2010) (attorney guilty of gross neglect, lack of diligence, failure to communicate with the client, and failure to cooperate with the investigation of the grievance).
However, a censure was imposed on an attorney who engaged in similar misconduct in three client matters, and then defaulted in the three separate disciplinary actions instituted against her. In re Yelland a/k/a Yelland-Young, 220 N.J. 26 (2014) (in three client matters, the attorney exhibited gross neglect and lack of diligence in the first matter, failed to communicate with the client in the first and second matters, failed to protect the client's interests on termination of the representation in the second and third matters, and failed to cooperate with disciplinary authorities in all three matters; violations of RPC 1.1(a), RPC 1.3, RPC 1.4(b), RPC 1.16(d), and RPC 8.1(b); no prior discipline).
Like respondent, Yelland had no prior final discipline. Unlike respondent, Yelland did not make multiple misrepresentations to clients or third persons. Respondent did so in two of the three matters presented. A misrepresentation to a client requires the imposition of a reprimand. In re Kasdan, 115 N.J. 472, 488 (1989).
In aggravation, respondent essentially abandoned the clients in the PP and CL matters. Abandonment of clients almost invariably results in a suspension, the duration of which depends on the circumstances of the abandonment, the presence of other misconduct, and the attorney's disciplinary history. See e.g., In re Nwaka, 178 N.J. 483 (2004) (three-month suspension, on a motion for reciprocal discipline, for attorney who was disbarred in New York for abandoning one client and failing to cooperate with New York ethics authorities by not filing an answer to the complaint and not complying with their requests for information about the disciplinary matter; prior three-month suspension); In re Hoffmann, 163 N.J. 4 (2000) (three-month suspension in a default matter; the attorney closed his office without notifying four clients; the attorney also was guilty of gross neglect, lack of diligence, failure to communicate with clients, failure to protect clients' interests upon termination of the representation, and failure to cooperate with disciplinary authorities; the attorney had a prior reprimand and a three-month suspension); In re Jennings, 147 N.J. 276 (1997) (three-month suspension for attorney who abandoned a single client and failed to cooperate with ethics authorities; the clients paid the attorney a $6,000 retainer, after which the attorney filed a complaint; thereafter, the clients could not locate the attorney, except through an intermediary who had recommended him to them; after numerous attempts to contact the attorney, he finally sent the clients a letter with a refund check and an apology, but no explanation for his failure to complete the matter; no prior discipline); In re Bowman, 175 N.J. 108 (2003) (Bowman I) (six-month suspension for abandonment of two clients, misrepresentations to disciplinary authorities, pattern of neglect, and misconduct in three client matters, including gross neglect, lack of diligence, failure to communicate with clients, failure to explain a matter to the extent reasonably necessary to permit the client to make an informed decision about the representation, failure to provide a written fee agreement, failure to protect a client's interests upon termination of the representation, and misrepresenting the status of a matter to a client; prior private reprimand); In re Bock, 128 N.J. 270 (1992) (six-month suspension for attorney, who, while serving as both a part-time municipal court judge and a lawyer, with approximately sixty-to-seventy pending cases, abandoned both positions by feigning his own death); In re Diamond, 185 N.J. 171 (2005) (one-year suspension for attorney who, in three matters involving two clients, abandoned the clients and engaged in gross neglect, pattern of neglect, lack of diligence, failure to communicate with clients, failure to promptly deliver funds to a client or third person, failure to withdraw from the representation when the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, failure to reply to requests for information from a disciplinary authority; and failure to appear at the continuation of the ethics hearing; he suffered from alcohol and drug abuse and had a prior admonition and reprimand); In re Bowman 178 N.J. 25 (2003) (Bowman II) (one-year suspension, in a default matter, for attorney who abandoned four clients; other violations included gross neglect, pattern of neglect, lack of diligence, failure to communicate with clients, failure to protect clients' interests on unilateral termination of the representations, communicating about the subject of the representation with a person the lawyer knew or should have known to be represented by another lawyer in the matter, failure to adopt and maintain reasonable efforts to ensure that the conduct of nonlawyer employee is compatible with the professional obligations of the attorney, failure to properly supervise nonlawyer employee, failure to cooperate with disciplinary authorities, and misrepresentation of the status of a matter; the attorney's ethics history included a private reprimand, a temporary suspension, and two six-month suspensions); In re Greenawalt, 171 N.J. 472 (2002) (one-year suspension, in a default matter, for attorney who grossly neglected three matters, abandoned his law practice, failed to notify clients of a prior suspension, and failed to cooperate with disciplinary authorities; the attorney had been temporarily suspended for failure to cooperate with the ethics investigator); In re Cruz, 177 N.J. 518 (2003) (two-year suspension, based on motion for reciprocal discipline, for attorney who moved out of state without notifying his clients, grossly neglected five matters, failed to communicate with clients, failed to protect his clients' interests upon termination of the representation, failed to cooperate with disciplinary authorities, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and engaged in conduct prejudicial to the administration of justice); In re Mintz, 126 N.J. 484 (1992) (two-year suspension for attorney who abandoned four clients and was found guilty of a pattern of neglect, failure to maintain a bona fide office, and failure to cooperate with ethics authorities); In re Foushee, 149 N.J. 399 (1997) (three-year suspension for attorney who, in four matters, displayed a lack of diligence, failed to communicate with clients, failed to provide written fee agreements, made misrepresentations, and failed to cooperate with disciplinary authorities); and In re Terry, 137 N.J. 4 (1994) (three-and-one-half-year suspension for attorney who abandoned three clients, failed to deliver funds to a third person, and failed to cooperate with disciplinary authorities). But see In re Hughes, 183 N.J. 473 (2005) (reprimand for attorney who abandoned one client by closing his practice without informing the client or advising her to seek other counsel; altogether, the attorney mishandled three matters by exhibiting a lack of diligence, failure to communicate with clients, and failure to protect his clients' interests upon termination of the representation; strong mitigating factors considered).
Somewhat more serious than the attorney in Jennings (three-month suspension for abandonment of one client), respondent abandoned two separate clients, and provided no explanation for his inability or unwillingness to complete their matters.
We determine to impose a six-month suspension, as in Bowman I, above, where the attorney abandoned two clients. Although Bowman's misrepresentations were made to disciplinary authorities, and he had a prior private reprimand, we counterbalanced those factors against respondent's three simultaneous defaults, which evidence a significant disdain for the disciplinary system.
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
Bonnie C. Frost, Chair
By:/s/_________
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Decided: March 29, 2019 Disposition: Six-Month Suspension
| Members | Six-MonthSuspension | Recused | Did Not Participate |
|---|---|---|---|
| Frost | X | ||
| Clark | X | ||
| Boyer | X | ||
| Gallipoli | X | ||
| Hoberman | X | ||
| Joseph | X | ||
| Rivera | X | ||
| Singer | X | ||
| Zmirich | X | ||
| Total: | 9 | 0 | 0 |
/s/_________
Ellen A. Brodsky
Chief Counsel