Bar Letters Not Junk

Reciprocal discipline was imposed by the New York Appellate Division for the Second Judicial Department based on a sanction imposed by the New Jersey Supreme Court.

The attorney claimed lack of notice of the New Jersey action:

The respondent moved to vacate the [New Jersey] default claiming, inter alia, that she never received any of the OAE letters; that the signatures on the return receipt letters were not hers; that, due to her inability to navigate stairs because of health problems, either her daughter or son-in-law retrieved the mail; and that her son-in-law threw her mail away or placed it in “a pile of junk.” The respondent also claimed that, since she had no clients since sometime in 2007, she did not have to notify any clients or return any files. With regard to her health, the respondent explained that she suffered from serious medical problems, causing her to undergo surgery on December 10, 2008. The respondent did not recall receiving the court’s order of temporary suspension because, after the surgery, she was in a great deal of pain, took pain killers, and was “very foggy about that time period.”

The OAE opposed the motion to vacate, arguing that the respondent had not established a reasonable basis for not filing an answer to the complaint and meritorious defenses to the charges.

The DRB agreed with the OAE that the respondent failed to meet the standard for vacating the default, finding that the respondent’s assertion that she did not receive the complaint strained credulity. The DRB also refused to credit the respondent’s assertion that she did not receive the court’s order requiring her compliance with the provisions of R. 1:20-20. As for the respondent’s assertion that her memory was fuzzy after the surgery, the DRB noted that the court’s order was filed on September 23, 2008, almost two months before her December 2008 surgery. The fact that respondent had no clients since sometime in 2007 did not, in the DRB’s view, absolve her of her obligation to file an affidavit of compliance.

Accordingly, the DRB denied the motion to vacate the default and treated the matter as a default.

The attorney was suspended for two years and until further order. (Mike Frisch)