An attorney’s fairly extensive disciplinary record got a bit more extensive with a recent three-month suspension by the New Jersey Supreme Court.
The misconduct at issue involved a mishandled personal injury claim as described by the Disciplinary Review Board
Throughout the representation, respondent: (i) told Close and Agigian that their case was proceeding apace and that he would inform them of any new developments; (2) failed to keep them informed about the status of their matter and that the judgment of non pros acted as a dismissal of their complaint; (3) told them about the need for another attorney to prepare an appellate brief, but failed to obtain their consent to retain Wright Appellate Services (WAS) for that purpose; (4) failed to pay WAS for the appellate brief prepared in their behalf; and (5) failed to tell Close and Agigian that he did not maintain required professional liability insurance.
In November 2006, Benjamin G. Lipman, Esq., contacted Close and Agigian on behalf of WAS, seeking payment for its appellate brief. During that conversation, the couple learned, for the first time, that their case had been dismissed.
He had defaulted and then moved to vacate the default
As to his failure to answer the ethics complaint, counsel states that respondent had cooperated fully with the DEC investigator in this matter until the filing of the complaint, but allowed the matter to “fall through the proverbial cracks” thereafter. Respondent was “inundated” at the time with other pending ethics matters, including another one involving the same investigator/presenter as in this matter. Further, respondent has dealt with the DEC and the OAE in a number of other ethics matters over the years, and has defended every other case. His failure to file an answer here “was an isolated and aberrational departure from his customary discharge of his professional obligations in disciplinary matters and was the product of neglect rather than a manifestation of disrespect for the disciplinary system.”
In respect of prong two, meritorious defenses, counsel first focuses on the charges in counts one through four and six, all of which involve the Close and Agigian matter. According to counsel, because respondent has already been disciplined in Pennsylvania for mishandling that matter, the DEC is “improperly seeking to have Respondent punished twice for the same conduct.” Counsel requests us to either dismiss the charges in those counts or remand them to the OAE “for processing as a reciprocal discipline matter.”
The default was not set aside
Counsel is mistaken in his belief that the DEC improperly seeks to punish respondent twice for his misconduct. Indeed, by virtue of his request that we remand this matter to the OAE to proceed by way of reciprocal discipline, counsel appears to recognize the Court’s authority to impose discipline on an attorney licensed to practice in this state for the very misconduct committed and disciplined by a foreign licensing jurisdiction. In fact, motions for reciprocal discipline routinely yield discipline here, in addition to any discipline imposed in the originating jurisdiction.
Sanction
There are additional aggravating factors to consider. Respondent has prior discipline, including a 1996 reprimand, a 2013 three-month suspension, and a 2016 censure. Those matters included some of the same misconduct found here, including gross neglect, failure to abide by the client’s decisions regarding the scope of the representation, failure to communicate, and misrepresentations by silence. In addition, respondent’s misconduct harmed Close and Agigian, inasmuch as they lost the value of their claims. For the presence of these additional aggravating factors, we determine that a three-month suspension is in order.
a disent would double the sanction. (Mike Frisch)