Monday, March 5, 2018
The New Jersey Supreme Court imposed reciprocal - but lesser - discipline than the five-year Pennsylvania suspension of an attorney despite a trail of client-harming misconduct that would shock any decent lawyer.
The court here followed the recommendation of the Disciplinary Review Board and imposed a two-year suspension of an attorney who had badly mishandled a host of criminal and civil matters and evinced little understanding of his misconduct.
The DRB noted misconduct that in a child pornography case he defended
The Commonwealth stipulated to Psoras’ claim of ineffective assistance, citing respondent’s failure to provide notice of an alibi defense; his decision to play most of the consensual recordings (until the court stopped him; the Commonwealth had taken precautions with this evidence for fear that it was so prejudicial that it would cause a mistrial); and the numerous "in-chambers" discussions that the court was compelled to hold with respondent, during the trial, regarding his representation of Psoras. The Commonwealth "did not want to re-try the case."
On August 21, 2012, the trial court granted respondent’s petition for post-conviction relief, noting that Psoras' petition "spoke for itself;" respondent had made so many errors at trial; the Commonwealth had stipulated to ineffective assistance of defense counsel; and a new plea agreement had already been negotiated between the Commonwealth and Psoras, whereby a maximum sentence of forty months’ incarceration (Psoras already had credit for twenty-two months) would be imposed.
As set forth above, if Psoras had accepted the plea offer the Commonwealth had extended on the date of jury selection, which he claimed respondent never presented to him, he would have received a time-served sentence of only nine months’ incarceration. Given the jury’s verdict, however, Psoras was exposed to a sentence of five to fifteen years’ incarceration, and lifetime Megan’s Law reporting requirements.
Another client was charged with molestation in two courts
Jury selection in the Mifflin County case occurred on July 2, 2012, and trial was scheduled to commence on July 17, 2012, at 8:30 a.m. On that date, respondent failed to appear for the trial. Instead, he contacted the District Attorney’s office, claiming that he had a flat tire near the Harrisburg exchange of the Pennsylvania Turnpike,I that he needed to rent a car, and that he would arrive in court in approximately two hours. The trial was temporarily recessed to accommodate respondent. At 11:19 a.m., when respondent had still not arrived, the trial court excused the jury and informed them that the trial would be rescheduled at the discretion of the Commonwealth.
There were numerous other cases that he had mishandled.
In the Pennsylvania bar case
The Supreme Court of Pennsylvania described respondent as "cavalier" and "indifferent" as to the disciplinary proceedings, noting that he "showed no remorse for the harm he brought upon his clients" and "failed to offer adequate explanation for his misconduct." In his answer to the Petition for Discipline filed by the PODC, respondent "admitted some factual allegations, but no rule violations." Richard Silverstein, respondent’s therapist, testified that he had been treating respondent for depression since March 2014, but offered "no opinion about [r]espondent’s depression causing or contributing to [his] misconduct."
The Supreme Court of Pennsylvania determined that respondent was guilty of violating the equivalents of the New Jersey RPCs cited above. The Court found that respondent’s violations "depict a pattern of misconduct beginning in March 2010 and continuing through 2014 . . . with multiple instances to sustain" each violation. The Court described respondent’s misconduct as "an extreme example incompetence by an attorney . . .of client neglect and [including] shoddy work product, lack of preparation and lack of professionalism."
The DRB found the misconduct in the criminal cases was "serious and pervasive." In another case, the attorney was "incompetent from the very inception of the representation." He was "wholly incompetent" in another matter.
In Boreman, respondent again displayed an utter lack of any understanding of his obligations. He undertook the representation of a legally blind woman with hearing difficulties, and then proceeded to do nothing to advance her cause, despite having been paid a fee and despite multiple calls from his client and her parents. Rather, when respondent was finally backed into a corner by Boreman’s complaint to disciplinary and fee authorities, he blamed her for the delays in advancing her case, falsely stating that she had not paid the filing fees and had not responded to earlier letters.
Respondent, however, had been attempting to communicate with her at a wrong address, further evidence of his shoddiness. Moreover, respondent did not even attend the fee hearing that Boreman had traveled to at her parents’ expense, instead claiming that he had already mailed her a fee refund and, later, misrepresenting to the PODC that he had performed a substantial amount of work on her case.
There then follows the usual litany of New Jersey discipline cases that somehow lead the DRB to reject identical discipline in favor of a three-year reduction of the Pennsylvania sanction.
The inevitable conclusion is simply that New Jersey is far more tolerant of pervasive misconduct than its neighbor to the west.
I fought a similar battle with the D.C. Board on Professional Responsibility that had sought to reduce a Florida disbarment to a suspension.
In this reciprocal discipline matter from Florida, the Board on Professional Responsibility ("Board") recommends the court impose a two-year suspension on Respondent, with a requirement that he demonstrate fitness to practice as a condition of reinstatement, rather than disbarment, as was imposed by the Supreme Court of Florida. The Board argues that Respondent's misconduct in Florida, if committed here, would not subject him to disbarment in the District of Columbia, and, thus, the "substantially different discipline" exception to imposing identical discipline applies. Bar Counsel disagrees, urging the court to impose reciprocal disbarment. We agree with Bar Counsel that imposition of identical discipline is appropriate.
The attorney in Spann did not seek a reduced sanction while the attorney here did with the support of the Office of Attorney Ethics. (Mike Frisch)