Reciprocity

The New Jersey Supreme Court doubled the proposed sanction of a six-month suspension of an attorney already suspended for three years and facing further charges in a matter involving reciprocal discipline based on a Pennsylvania sanction.

From the report of the Disciplinary Review Board

This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (OAE), following Pennsylvania’s suspension of respondent for one year and one day, for her violation of the Pennsylvania equivalent of New Jersey RPC l.l(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4(b) (failure to keep the client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); RPC 1.4(c) (failure to the client to make informed decisions regarding representation); RPC 1.5(a) (unreasonable fee); RPC 1.15(a) (failure to safeguard client funds); RPC 1.15(b) (failure to promptly deliver funds or property to client or third party to which they are entitled); RPC 1.15(c) (failure to keep separate funds in which the attorney and a third party claim an interest); RPC 1.16(d) (failure to refund unearned advance fee); and RPC 3.2 (failure to expedite litigation). The OAE seeks a censure. For the reasons expressed below, we determined to grant the motion and impose a six-month suspension.

The DRB sustained the violations and analysed sanction

Although respondent’s conduct, in a vacuum, might merit a reprimand or a censure, we must consider both aggravating and mitigating factors to determine the appropriate discipline. At the outset, we note no mitigating factors. Aggravating factors, however, abound.

Since her admission to practice, respondent not only has been the subject of prior discipline in both New Jersey and Pennsylvania, but also is facing potential additional discipline in New Jersey in the two default matters currently pending before the Court. In all of those cases (consisting of five separate client matters) respondent had been retained in mortgage foreclosure/modification matters. Such cases involve clients in presumably dire financial circumstances, and thus, called for close and prompt attention. Yet, in each one of those cases, respondent accepted sizeable retainers and other fees, and essentially performed no services. In almost all of those matters, respondent engaged in a pattern of ignoring her client’s requests for information. In none of the matters did respondent voluntarily return the substantial fees she had not earned. In short, respondent appears to have engaged in a continuing pattern of misconduct that has left her financially-troubled clients in an even worse position than when they first consulted her. Nowhere is that more clear than in this case.

Particularly indifference to troubling to us is respondent’s apparent her clients’ predicament. She charged the Nieviarovskis a very large retainer, continued to accept monthly fee payments from them, and then did nothing to advance their interests or to keep them informed of the status of their matters. When she was finally forced to meet with the Nieviarovskis, who travelled from New York to her office in Pennsylvania, she kept them waiting for three hours beyond their appointed time. The insult did not end there.

Instead, at that meeting, and in the presence of her clients, respondent opened a letter she had received from them weeks earlier, only one in a long line of many unanswered communications. It was then, for the very first time — eight months into the representation — that respondent informed the Nieviarovskis that a mortgage modification, the very purpose for which they had retained her, would be difficult because they were not in arrears. Then, again for the first time, she further informed them that she would not be able to institute litigation in their behalf until a substantial portion of her fee was paid. By that point, respondent already had accepted from the Nieviarovskis fee payments totaling almost $20,000, including the retainer. Also by that point, she had done nothing in their behalf.

Undaunted, and also at that meeting, respondent produced an “accounting” of her time, which was unsupported by any contemporaneous time records, and which totaled the exact amount the Nieviarovskis had already paid her. The PaDB found that the accounting had no basis in reality and had been created by respondent solely to justify the excessive and unearned fees she already had taken. When the Nieviarovskis began to express concern about continuing the relationship, respondent warned them that, if they decided to terminate the representation, they would be in breach of the Legal Services Contract and that she would retain the sums they had already paid her. Her threat was effective. The Nieviarovskis decided to continue the representation, fearing that respondent would keep the sums they had paid. Unbeknownst to them, however, and perhaps as the final affront, respondent unilaterally terminated the representation several months later, first keeping one more fee payment, and leaving the Nieviarovskis to find substitute counsel

The more we learn of respondent, the more we see the damage she causes to her clients, and to the legal profession as a whole, by her continued inability to conduct herself in accordance with the most basic professional standards and her apparent indifference to the disciplinary process. Not only did her prior New Jersey disciplinary matters proceed on a default basis, but also she took no opportunity to participate in the present matter before us. Thus, under the totality of the circumstances, we determine that respondent should be suspended for six months. We further recommend that this suspension be consecutive to the three-month suspension currently pending before the Court and, further, that respondent’s reinstatement be conditioned on her reinstatement in Pennsylvania and on her repayment of $26,800 to the Pennsylvania Lawyers Fund for Client Security.

(Mike Frisch)