Friday, October 11, 2024
Significant Harm, No Response: Censure
A censure has been imposed by the New Jersey Supreme Court for an attorney's mishandling an appeal, failure to communicate and default on the ensuing bar complaint.
From the report and recommendation of the Disciplinary Review Board
On March 15, 2021, Michael Puschak retained respondent to represent him in connection with the appeal of a $96,230 civil judgment that had been entered against him. Puschak paid respondent $5,000 toward the representation. On April 7, 2021, respondent filed a timely notice of appeal on behalf of Puschak, in the Superior Court of New Jersey, Appellate Division. Thereafter, in furtherance of the representation, she filed a brief and appendix on Puschak’s behalf.
On three occasions, between August 9 and September 9, 2021, the Clerk of the Appellate Division notified respondent, in writing, that the brief and accompanying appendix she had filed were deficient and directed her to cure the deficiencies to avoid the dismissal of Puschak’s appeal. Respondent failed to cure the deficiencies; consequently, on September 17, 2021, the Appellate Division dismissed the appeal.
Respondent did not nority the client
According to his grievance, Puschak repeatedly attempted to reach respondent by telephone and e-mail, to no avail.5 By the summer of 2022, having received no reply, Puschak became so concerned for respondent’s well-being that he contacted the police to perform a wellness check. According to Puschak, respondent eventually contacted him and apologized for her failure to communicate, claiming she had been ill.
On December 9, 2022, Puschak sent a letter to respondent, seeking her malpractice insurance information and notifying her that, in the event she did not reply, he intended to “file an ethics complaint” against her.
On January 27, 2023, Puschak filed an ethics grievance against respondent. Respondent then failed to respond to the DEC investigator’s requests for information or to respond to “the [g]rievance in any manner whatsoever.”
Sanction
In our view, based on the foregoing precedent, the baseline discipline for respondent’s misconduct is a censure. To craft the appropriate discipline, however, we also consider mitigating and aggravating factors.
In mitigation, respondent has no prior discipline in her six years at the bar.
In aggravation, respondent failed to file an answer to the complaint and allowed this matter to proceed as a default. Ordinarily, we would consider respondent’s default as a sufficient aggravating factor to permit the baseline discipline to be further enhanced. In re Kivler, 193 N.J. 332, 342 (2008) (citations omitted). However, as detailed above, respondent’s default was considered in setting a censure as the baseline discipline and, therefore, we will not enhance the discipline based on Kivler. Likewise, we factored the significant harm respondent’s misconduct caused her client into the baseline discipline and, accordingly, do not enhance the discipline on that basis.
(MIke Frisch)
https://lawprofessors.typepad.com/legal_profession/2024/10/significant-harm-no-response-censure.html