Fired “Permanently”

The New Jersey Supreme Court has censured an attorney with a record of prior discipline that included this prior order in conjunction with a three-month suspension

The Court further ordered that respondent shall not employ his wife or give her access to his law practice or his  attorney accounts, books, and records and shall provide proof thereof to the Office of Attorney Ethics (OAE) as a condition of reinstatement.

As described by the Disciplinary Review Board, this matter involved two immigration clients.

The attorney claimed lack of notice in a motion to vacate default.

In a prior case he had blamed his secretary for his non-response.

Here, he claimed that mail that did not say “second floor” was not delivered.

But a voicemail presented a problem

However, when respondent listened to the presenter’s recording of the April 30, 2019 voicemail, he realized that the voice was that of his wife. On February 19, 2020, despite her prior denial, Anicia admitted to respondent that she had left the voicemail message for the presenter. She claimed to have done so without respondent’s knowledge or authority. Respondent stated: “I fired my wife today immediately and permanently. She will no longer have any involvement whatsoever with my office or my practice.” He also denied any prior knowledge of the grievances or having discussed them with Anicia, as she had alleged in that voicemail.

The DRB rejected the attorney’s motion to vacate

In respect of the requirement that respondent provide a reasonable explanation for his failure to file an answer, we find his arguments woefully inadequate. First, he asked us to believe that, after years of problems with his office mail – and promises that he had resolved all those issues, including the representation that he had “fired” Anicia on one or more prior occasions – he received no DEC mail in respect of these grievances, because his office was located on the second floor. To accept respondent’s claim would require us to be persuaded that he had not received the certified mail, the regular mail, a telephone message left for him with office staff, or a facsimile sent to his office. The latter two communications were not dependent on a second-floor designation. Moreover, in the context of his heightened awareness of previous mail issues at his law office, it was incumbent on respondent to have a system in place to ensure his receipt of mail.

Then, on the eve of considering respondent’s default, we learned that he had continued to permit Anicia to manipulate mail in his office, years after representing to disciplinary authorities that he had terminated her employment. We conclude that none of respondent’s explanations for his failure to file a conforming answer, including the last-minute excuse contained in his supplemental certification, are reasonable. Thus, he has failed the first prong of the test to vacate the default.

He had no defense to the merits 

For six years, from 2012 through March 2018, numerous telephone calls were placed to respondent in behalf of the boys, seeking information about the status of their asylum applications. Those calls went unanswered. Apparently, the clients were unaware of the removal orders for six years, until March 2018, when they retained attorney Smotritsky to represent them.

DRB on sanction

On balance, considering both the harm to the clients and respondent’s default, Chair Clark and members Boyer and Hoberman voted to impose a censure. Members Rivera, Singer, and Zmirich voted to impose a three-month suspension, consecutive to the three-month suspension that the Court imposed on April 9, 2020.

(Mike Frisch)