Practice Pointer: Don’t Default

A six-month suspension has been imposed by the New Jersey Supreme Court on an attorney who defaulted on the charges as described by the Disciplinary Review Board

A respondent must meet a two-pronged test to succeed on a motion to vacate default. First, a respondent must offer a reasonable explanation for his or her failure to answer the ethics complaint. Second, a respondent must assert a meritorious defense to the underlying charges…

In the instant matter, the original grievance was filed in 2008, and, as of the date of this writing, respondent still has not filed a verified answer to any of the complaints. In our view, and in the context of the procedural history of this matter, including the several missed opportunities to file an answer to the complaint, respondent’s motion fails to satisfy the first prong of the test. Her explanations for not answering the complaint are stale and no longer reasonable.

The DRB rejected misappropriation charges notwithstanding the default but found other misconduct

At a minimum, based on the foregoing, the discipline for the totality of respondent’s unethical conduct would be a censure. There are, however, aggravating factors to consider. First, the default nature of the matter requires an enhancement of discipline. Respondent’s prior disciplinary matters also proceeded by way of default, thus displaying a pattern of disdain for the disciplinary system. Second, respondent made an egregious misrepresentation to the OAE when she sent a letter enclosing a copy of a check payable to Sheed. In the letter, respondent claimed that she had sent the check to Sheed. It was not until August 15, 2016, however, that Sheed confirmed that she had received that check. Respondent’s failure to refund these monies in a timely manner continued to cause economic harm to her former client.

It is worth noting, in mitigation, that respondent seems to be ill. However, without more detail about her health issues and a specific timeline relating them to her ability to cooperate with the OAE, this possible mitigation is not sufficient to reduce what we consider to be the appropriate quantum of discipline for her misconduct.

In light of respondent’s ethics history, the default status of this matter, and her serious misrepresentation to the OAE, we determine to impose a six-month suspension.

(Mike Frisch)