Appeal Misconduct Draws Sanction

Mishandling of a criminal appeal has led to a six-month suspension by the New Jersey Supreme Court.

The Disciplinary Review Board set out the particulars

Based on the foregoing facts, respondent stipulated that he violated RPC 1.5(b) by failing to set forth, in writing to the Swans, the basis or rate of his $10,000 flat legal fee. He also stipulated to having violated RPC 1.1(a), RPC 1.3, and RPC 3.2 by grossly mishandling Rogers’s direct appeal and PCR petitions. Specifically, respondent failed, for five years, to ensure that the Appellate Division received the trial transcripts necessary for appellate review and, rather than take any timely corrective action, he simply allowed the appeal to remain dismissed. Further, he conceded that he filed “duplicative” motions to reinstate the appeal, without including the necessary transcripts or attempting to explain why he had failed, for five years, to prosecute the appeal. Additionally, he failed to adhere to Judge Covert’s briefing deadlines in connection with the second PCR petition.

Respondent stipulated to having violated RPC 1.4(c) by failing to advise Rogers or the Swans of (1) the “procedural impropriety and negligible likelihood of success of the PCR” petitions, (2) the dismissal of the PCR petitions and the appeal, and (3) his inability to obtain an expert “who would testify in Rogers’s favor.” Specifically, although he provided Rogers, the Swans, and Joseph with copies of “some” of his Superior Court and Appellate Division filings, his clients remained unaware of the “status” of the appeal or the PCR petitions, including his mishandling of those matters, until substitute counsel assumed the representation, in April 2019.

Additionally, respondent admitted having violated RPC 3.1 by filing multiple PCR petitions without any basis in law or fact. Specifically, at the time he filed the petitions, he knew he had not obtained an expert to undermine Rogers’s convictions. Further, the parties stipulated that respondent’s “concurrent[] . . . pursuit of a direct appeal” while filing a PCR petition was procedurally improper. Moreover, he admittedly violated RPC 3.1 by filing multiple motions to reinstate the appeal, without any basis in fact, because, in many of those motions, he knew that he had not obtained the entire “transcribed record.”

Respondent also stipulated to having violated RPC 8.4(c) (two instances) by misrepresenting, in his October 12, 2016 and January 18, 2017 certifications to the Appellate Division, the timeframe in which he had obtained all required trial transcripts. Likewise, respondent twice violated RPC 8.4(d) by wasting both the Superior Court’s and the Appellate Division’s judicial resources through his filing of duplicative motions and PCR petitions that “had no viable basis.”

Violations found

In sum, we find that respondent violated RPC 1.1(a); RPC 1.3; RPC 1.4(c); RPC 1.5(b); RPC 3.1 (two instances); RPC 8.4(c) (one instance); and RPC 8.4(d) (two instances). For the reasons set forth above, we dismiss the charge that respondent violated RPC 3.2, as well as the second charged instance of RPC 8.4(c). Further, based on the lack of any evidence that an active appeal 33 was pending at the time respondent filed the PCRs on Rogers’s behalf, we decline to find that he separately violated RPC 3.1 on this basis. The sole issue left for our determination is the appropriate quantum of discipline for respondent’s misconduct.

Sanction

Respondent’s persistent disregard to the interests of his incarcerated clients demonstrates that he clearly has failed to utilize his experiences with the disciplinary system as a foundation for reform. See In re Zeitler, 182 N.J. 389, 398 (2005) (“[d]espite having received numerous opportunities to reform himself, [the attorney had] continued to display his disregard, indeed contempt, for our disciplinary rules and our ethics system”). His conduct also needlessly wasted the judicial resources of both the Superior Court and the Appellate Division, occurred while his client’s liberty interest was at stake, and smacked of the same misrepresentations he made in Crisonino I. However, respondent’s misconduct in the instant matter spanned far longer than the two-year timeframe in Crisonino I and, unlike in that matter, his acts of dishonesty in this matter repeatedly were targeted towards a court.

Conclusion

Despite numerous opportunities to rectify the representation, respondent, for years, inexplicably refused to pursue Rogers’s basic post-conviction remedies for which he had been retained. Rather, he engaged in a prolonged course of dishonesty towards his clients and repeatedly filed false or frivolous submissions with courts, in an attempt to obscure his inexcusable and gross mishandling of this matter. Considering the timing of his prior reprimand for substantially similar infractions, his persistent and alarming indifference to the interests of his incarcerated clients, and the lack of any compelling mitigation, we determine, consistent with disciplinary precedent, that a six-month suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.

(Mike Frisch)