Progressive Discipline At A Slow Pace

A third encounter with the bar disciplinary rules drew a second reprimand from the New Jersey Supreme Court.

The Disciplinary Review Board report and recommendation described reprimand #1

In that matter, in October 2015, while employed as an Assistant Deputy Public Defender with the Office of Parental Representation, respondent was appointed to defend L.S. against allegations that she neglected her minor son. The Division of Child Protection and Permanency (DCPP) alleged that L.S. was an alcoholic, became intoxicated, and passed out while caring for her son. Due to L.S.’s struggles with alcoholism, DCPP removed her son from her care and placed him in the custody of his maternal grandmother.

Following the child’s removal, DCPP sought to curtail L.S.’s parenting time and to implement supervised visitation. After representing L.S. at the Order to Show Cause hearing, respondent offered to drive her home due to bad weather. L.S. declined the offer. However, respondent and L.S. later began texting each other, including messages that were sexual in nature. On the day before Thanksgiving, respondent and L.S. consummated a sexual relationship.

We found that respondent was aware, given his trusted status as L.S.’s appointed counsel, that she was suffering from alcoholism so severe that she lost custody of her child. Despite his knowledge, respondent sought and commenced a sexual relationship with her, which he did not disclose to the New Jersey Office of the Public Defender (the OPD). Respondent also did not withdraw as L.S.’s counsel, despite questioning her mental status. Instead, he chose to continue the sexual relationship with his client.

The instant matter was initiated by a trust account overdraft that led to recordkeeping violations, for which the attorney had previously been admonished

At the September 29, 2021 mitigation hearing, the OAE observed that an admonition was the usual sanction imposed on an attorney who is determined to have committed recordkeeping violations. However, the OAE invited the DEC to consider respondent’s disciplinary history as an aggravating factor, particularly, his prior admonition for a recordkeeping violation, which was based on his failure to maintain records for seven years. Thus, the OAE maintained that, depending on how much weight the DEC gave to respondent’s past ethics infractions, respondent should receive either an admonition or a reprimand.

Sanction

this is respondent’s third time before us in four years. In our view, respondent’s recent disciplinary matters illustrate a troubling inability to conform his conduct in accordance with the Rules of Professional Conduct.

The Court has signaled an inclination toward progressive discipline and stern treatment of repeat offenders. In such situations, enhanced discipline is appropriate. See In re Kantor, 180 N.J. 226 (2004) (disbarment for abandonment of clients and repeated failure to cooperate with the disciplinary system).

Thus, on balance, we determine that a reprimand is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar. Because respondent has remediated his recordkeeping deficiencies, we find that additional conditions are unwarranted.

(Mike Frisch)