In re Robinson

Disciplinary Review Board Bonnie Frost, Chair

Disciplinary Review Board
District Docket Nos. IV-2014-0049E and IV-2015-0001E Decision

To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

These matters were before us on certifications of default filed by the District IV Ethics Committee (DEC), pursuant to R. 1:20-4(f). They have been consolidated for the purpose of imposing a single form of discipline. Both complaints charged respondent with having violated RPC 1.1(a) (gross neglect); RPC 1.1(b) (pattern of neglect); RPC 1.3 (lack of diligence); RPC 1.4, presumably (b), (failure to communicate); RPC 8.1(b) (failure to cooperate with disciplinary authorities); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). For the reasons set forth below, we determine to impose a three-month suspension.

Respondent was admitted to the New Jersey bar in 2001. She maintains a law office in East Norriton, Pennsylvania. She is currently suspended from the practice of law in Pennsylvania. Respondent has been administratively ineligible to practice in New Jersey since August 25, 2014, based on her failure to comply with the annual registration requirements. Subsequently, she was suspended from the practice of law in New Jersey, effective July 6, 2015, and ordered to pay a monetary sanction, based on her failure to comply with the determination of a fee arbitration committee. In re Robinson, 222 N.J. 312 (2015). She remains suspended to date.

On October 20, 2015, respondent received a reprimand for violating RPC 1.1(a) and (b), RPC 1.3, RPC 1.4(b), and RPC 8.1(b). In re Robinson, 223 N.J. 289 (2015). A motion for reciprocal decision filed by the Office of Attorney Ethics against respondent remains pending with us.

Service of process was proper in these matters. On June 30, 2015, the DEC sent a copy of both complaints to respondent at her home address by regular and certified mail. The green card, signed by respondent, was returned to the DEC secretary on July 27, 2015. The letters sent by regular mail were not returned.

On July 22, 2015, the DEC sent a second letter to respondent for both matters, at her home address, by regular mail, informing her that, if she did not file verified answers to the complaints within five days of the date of the letter, the allegations of the complaints would be deemed admitted, the records would be certified directly to us for the imposition of discipline, and the complaints would be deemed amended to include a willful violation of RPC 8.1(b). These letters were not returned.

As of August 18, 2015, respondent had not filed an answer to either of the complaints. Thus, the DEC certified the matters as defaults to us on that date. The Dudley Matter (DRB 15-313; District Docket No. IV-2014-0049)

In August 2009, grievant, Eugene Dudley, retained respondent to represent him in mortgage foreclosure litigation. Respondent accepted an initial retainer of $3,000. Dudley maintained that he made additional payments of $500 per month to respondent between 2009 and 2014, as well as two additional $750 payments for court appearances, and that, in total, he paid respondent $31,000. Dudley claimed that respondent performed no work on his behalf.

Dudley unsuccessfully attempted to contact respondent on numerous occasions during the period of representation, despite using multiple avenues including, but not limited to, e-mail and social media.

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)). Although the facts in connection with the RPC 1.4(b) and RPC 8.1(b) allegations are sparse, the record contains sufficient facts to justify discipline for this particular conduct.

Dudley was unable to communicate with respondent during the course of the representation, despite his attempts to do so through e-mail and social media. Although the record does not specify what communication occurred leading to Dudley's agreement to pay respondent $500 per month or to his two separate $750 payments in relation to alleged court appearances, it is, nevertheless, clear that respondent failed to adequately communicate with her client, a violation of RPC 1.4(b).

Further, the July 22, 2015 letter the DEC sent notified respondent that her failure to file a verified answer to the complaint would result in an additional count alleging a violation of RPC 8.1(b). Respondent ignored this warning, failed to file such an answer, and therefore, failed to cooperate with disciplinary authorities, in violation of RPC 8.1(b).

However, the complaint fails to allege sufficient facts to support the remainder of the charges of unethical conduct. Specifically, the allegations of the complaint are bereft of facts to support the alleged violations of RPC 1.1(a), RPC 1.1(b), RPC 1.3, and RPC 8.4(c). We, therefore, dismiss these charges. The Lewis Matter (DRB 15-314; District Docket No. IV-2015-0001E)

On February 26, 2013, grievant, Petria L. Lewis, retained respondent in connection with mortgage foreclosure litigation in which she was a defendant. Respondent accepted an initial retainer of $1,500. According to the complaint, Lewis "alleged" that she made additional payments totaling $2,835, representing full payment for the anticipated representation, but that respondent performed no legal work on her behalf.

On July 18, 2013, Lewis attempted to communicate with respondent by way of e-mail but received no response. The complaint charged that Lewis "alleges" to have attempted to reach respondent on multiple occasions by telephone and by way of e-mail, all to no avail. Therefore, Lewis filed a fee arbitration request, which resulted in an award to her of the entire $2,835 fee. As of the date of the complaint, that fee had not been returned to Lewis, ultimately leading to respondent's temporary suspension on July 6, 2015.

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)). Although the facts in connection with the RPC 1.4(b) and RPC 8.1(b) allegations are sparse, the record contains sufficient facts to justify discipline for this particular conduct.

Lewis reached out to respondent on July 18, 2013 by e-mail, but received no response. She further alleged that she was unable to communicate with respondent during the course of the representation on multiple occasions when she attempted to do so by both telephone and e-mail. Respondent's failure to reply to Lewis' communications violated RPC 1.4(b).

Further, the July 22, 2015 letter the DEC sent to respondent notified her that her failure to file a verified answer to the complaint would result in an additional count alleging a violation of RPC 8.1(b). Respondent ignored this warning, failed to file such an answer, and therefore, failed to cooperate with disciplinary authorities.

However, the complaint fails to allege sufficient facts to support most of the charges of unethical conduct. Specifically, the allegations of the complaint are bereft of facts to support the alleged violations of RPC 1.1(a), RPC 1.1(b), RPC 1.3, and RPC 8.4(c). We, therefore, dismiss these charges.

Thus, respondent is guilty of violations of RPC 1.4(b) and RPC 8.1(b) in two separate matters.

Typically, attorneys who fail to adequately communicate with clients and have a disciplinary record receive reprimands. See, e.g., In re Tyler, 217 N.J. 525 (2014) (attorney violated RPC 1.4(b) when she ceased communication with a client who had retained her to re-open a Chapter 7 bankruptcy on his behalf in order to add a previously omitted creditor and to discharge that particular debt; the attorney never informed the client that the creditor had indeed been added to the bankruptcy schedules at the outset, that the debt had been discharged, and that the bankruptcy had been closed; prior reprimand for, among other things, failure to communicate in six bankruptcy cases); In re Tan, 217 N.J. 149 (2014) (reprimand for attorney who violated RPC 1.4(b) when he failed to return approximately twenty telephone calls from his client; reprimand was imposed due to his disciplinary history and his failure to learn from his prior ethics mistakes, which included, among other things, a censure for failure to communicate with a client; In re Wolfe, 170 N.J. 71 (2001) (failure to communicate with client; reprimand imposed because of the attorney's ethics history: an admonition, a reprimand, and a three-month suspension).

Here, respondent has failed to communicate with her client in two separate matters. Because of respondent's prior reprimand for similar misconduct, each violation, on its own, would merit a reprimand. Each of these matters, however, also includes a failure to cooperate with disciplinary authorities, serving to further enhance the otherwise appropriate discipline.

Typically, a reprimand is imposed for failure to cooperate with disciplinary authorities, if the attorney has an ethics history. See, e.g., In re Larkins, 217 N.J. 220 (2014) (default; attorney did not reply to the ethics investigator's attempts to obtain information about the grievance and failed to file an answer to the formal ethics complaint; although we noted that a single violation of RPC 8.1(b), in a default matter, does not necessitate enhancement of the discipline from an admonition to a reprimand, a reprimand was imposed based on a prior admonition and, more significantly, on a 2013 censure, also in a default matter, in which the attorney had failed to cooperate with an ethics investigation); In re Wood, 175 N.J. 586 (2003) (attorney failed to cooperate with disciplinary authorities; prior admonition for similar conduct); In re DeBosh, 174 N.J. 336 (2002) (failure to cooperate with disciplinary authorities; prior three-month suspension); and In re Williamson, 152 N.J. 489 (1998) (attorney failed to cooperate with disciplinary authorities; prior private reprimand for failure to carry out a contract of employment with a client in a matrimonial matter and failure to surrender the client's file to a new attorney).

Although a reprimand in each matter is warranted for respondent's misconduct in respect of her failure to communicate with her clients, her failure to cooperate with disciplinary authorities justifies an enhancement to a censure. However, further enhancement is warranted based on other aggravating factors.

Specifically, respondent has a history of failing to cooperate with disciplinary authorities. It appears that she is no longer willing to conduct herself in accord with the expectations of our profession. Her willingness to thumb her nose at the disciplinary system justifies further enhancement of the discipline.

Hence, for the totality of respondent's conduct, including her apparent disdain for the disciplinary system, we determine that a three-month suspension is appropriate.

Member Clark would have issued a censure. Member Boyer abstained.

We offer one final note. We are troubled by the significant fee aspect of the Dudley matter. Dudley alleges that he paid respondent $31,000 and received no services in return. However, as previously noted, the complaint contained no facts to support that allegation. Thus, because we could not determine the extent of the services, if any, respondent might have provided in the matter, we did not require respondent to return her very substantial fee to her client. Rather, the fee arbitration system is more appropriately suited to make any such determination in respect of whether respondent earned any portion of her fee.

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 Frost, Chair

By:/s/_________

Ellen A. Brodsky

Chief Counsel

Decided: June 1, 2016 Disposition: Three-month suspension

/s/_________

Ellen A. Brodsky

Chief Counsel