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In re Perskie

Supreme Court of New Jersey

February 1, 2018

IN THE MATTER OF NICOLE LEIGH PERSKIE AN ATTORNEY AT LAW

         District Docket Nos, XIV-2016-0340E; XIV-2016-0641E; XIV-2016-0716E; XIV-2016-0717E; XIV-2016-0751E; XIV-2016-0752E; XIV-2016-0753E; XIV-2016-0754E; and XIV-2016-0755E

          DECISION

          BONNIE C. FROST, CHAIR

         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was before us on a certification of the record filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The nine-count formal ethics complaint charged respondent with violations of RPC 1.15(d) (failure to comply with the recordkeeping requirements set forth in R. 1:21-6) and RPC 8.1(b) (failure to cooperate with disciplinary authorities) (count one); RPC 5.5(a)(1) (practicing while administratively ineligible and practicing while suspended), RPC 8.1(b), and RPC 8.4(b) (engaging in criminal conduct that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects)[1] (count two); RPC 5.5(a)(1), RPC 8.1(b), and RPC 8.4(b) (count three); RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), RPC 1.4(b) (failure to keep the client reasonably informed), RPC 5.5(a)(1), RPC 8.1(b), and RPC 8.4(b) (count four); RPC 1.1(a), RPC 1.3, RPC 1.4(b), RPC 5.5(a)(1), RPC 8.1(b), and RPC 8.4(b) (count five); RPC 1.1(a), RPC 1.3, RPC 1.4(b), and RPC 8.1(b) (count six); RPC 1.1(a), RPC 1.3, RPC 1.4(b), RPC 1.5(b) (failure to communicate in writing the rate or basis of the fee), and RPC 8.1(b) (count seven); RPC 1.1(a), RPC 1.3, RPC 1.4(b), RPC. 5.5(a)(1), RPC 8.1(b), and RPC 8.4(b) (count eight); and RPC 1.1(a), RPC 1.1(b) (pattern of neglect), RPC 1.3, RPC 1.4(b), RPC 1.5(b), RPC 5.5(a)(1), RPC 8.1(b), RPC 8.4(b), and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) (count nine), For the reasons set forth below, we determine to impose a two-year prospective suspension.

         Respondent earned admission to the New York bar in 2011 and to the New Jersey bar in 2013. During the relevant time frame, she maintained a law practice in Somers Point, New Jersey. On September 12, 2016, the Court entered an Order declaring respondent ineligible to practice law, based on her failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection (CPF).

         On September 21, 2016, respondent was temporarily suspended for failure to cooperate with an ethics investigation, In re Perskie, 226 N.J. 515 (2016). She remains suspended to date.

         Service of process was proper in this matter. On June 12, 2017, the OAE sent a copy of the formal ethics complaint to respondent, by certified and regular mail, at both her last known office address and last known home address. The certified and regular mail sent to respondent's office was returned marked "Unable to Forward." Both the certified and regular mail sent to respondent's home address was returned marked "Moved, Left No Address."[2]

         The OAE, thus, effected service of the complaint by publication, on July 10, 2017, in The Press of Atlantic City, and, on July 17, 2017, in the New Jersey Law Journal.

         Respondent failed to file a verified answer to the complaint. Accordingly, on August 8, 2017, the OAE certified the record to us as a default.

         We now turn to the allegations of the complaint.

         Count One

         Respondent engaged in the practice of law in Somers Point, New Jersey, in a partnership doing business as the Law Offices of Weber and Perskie, LLC (Weber and Perskie). The firm maintained attorney trust account XXXXX4159 at Bank of America, until it was closed, on May 31, 2016. Respondent represented, via her attorney registration, that she maintained attorney business account XXXXX9593 at Wells Fargo Bank.

         On April 21, 2016, Bank of America notified the OAE of a $249.03 overdraft of Weber and Perskie's attorney trust account, which occurred on April 19, 2016. By letter dated April 29, 2016, the OAE directed Weber and Perskie to provide a written explanation of the overdraft, and to produce monthly trust account bank statements for the prior three months and relevant client ledger cards, no later than May 13, 2016.

         On May 11, 2016, Andrew Weber responded to the OAE's letter, representing that, in 2015, he and respondent had terminated their partnership, and that he had relinquished any interest or control in the Bank of America trust account, effective January 1, 2016; as part of the dissolution of Weber and Perskie, he transferred all of his clients' funds to a new attorney trust account, opened exclusively for his new firm. Weber further stated that respondent was aware of the overdraft, and had received the OAE's letter requiring an explanation of it.

         In response to the information from Weber, the OAE, by letter dated May 12, 2016, again directed respondent to provide a written explanation of the attorney trust account overdraft, and enclosed both its original letter and Weber's response. That same date, respondent called the OAE, representing that she would submit a written explanation of the overdraft, plus the required documentation, by May 20, 2016. Respondent, however, failed to submit either an explanation or the required documents.

         On May 31, 2016, the OAE directed respondent, for a third time, to provide a written explanation of the overdraft, plus the required documentation, no later than June 7, 2016. That letter warned respondent that, if she failed to reply, the OAE could file a petition for her temporary suspension. On June 7, 2016, respondent submitted two letters to the OAE, dated June 1 and June 7, 2016. Although her letters purported to explain the overdraft, respondent failed to provide the OAE with any of the required documentation.

         Consequently, on June 14, 2016, the OAE directed respondent to appear for a demand audit, on July 12, 2016, and to produce specific records of the Weber and Perskie attorney trust and business accounts. That letter warned respondent that her failure to reply could result in the filing of both a formal ethics complaint charging her with violating RPC 8.1(b), and a petition for her temporary suspension from the practice of law. Respondent failed to appear for the demand audit, but both faxed and called the OAE to explain her absence. During the telephone call, respondent agreed to appear for the demand audit on July 18, 2016. On that date, however, respondent again failed to appear. Her assistant, Mary Bright, faxed a postponement request to the OAE at 6:28 on the morning of July 18, 2016.

         On July 20, 2016, the OAE again directed respondent to appear for a demand audit, on August 2, 2016, and to produce the required records for the Weber and Perskie accounts. That letter was sent via fax, and regular and certified mail, to respondent's home address. Yet again, the OAE reminded respondent of her duty to cooperate, and warned her that the OAE could move for her temporary suspension if she failed to respond. Although the fax was successfully delivered, both the certified and regular mailings were returned to the OAE.

         On August 1, 2016, OAE investigator Jessica Fisher called respondent on her cellular phone to confirm her appearance at the demand audit. Respondent did not answer, and because her voice mailbox was full, Fisher was unable to leave a message. Fisher left a voicemail with respondent's assistant, Bright, requesting that respondent confirm the demand audit appearance, scheduled for the next day. Later that same date, respondent returned Fisher's call, promising to appear at the demand audit with the required documentation. The next day, however, respondent neither appeared for the demand audit nor contacted the OAE regarding her failure to appear.

         On September 21, 2016, the Court granted the OAE's August 5, 2016 motion to temporarily suspend respondent from the practice of law. The OAE then contacted Bank of America and Wells Fargo to ensure that respondent's attorney business and attorney trust accounts were frozen, but learned that both accounts had been closed.

         On September 29, 2016, the OAE requested that the Atlantic County Bar Association apply for the appointment of an attorney-trustee, pursuant to R. 1:20-19, to act on behalf of respondent's clients. On October 11, 2016, the Honorable Julio L. Mendez, A.J.S.C, appointed Douglas Stanger as attorney-trustee for respondent's practice. According to stanger, respondent was initially cooperative with . his efforts as attorney-trustee, but later ceased cooperating. Consequently, Stanger contacted respondent's landlord to gain access to her office and client files.

         As of June 5, 2017, respondent had not produced the records required for the demand audit. Consequently, the OAE subpoenaed her financial records, which revealed that, during the relevant time frame, respondent had made numerous cash withdrawals, in "round amounts," from her attorney trust account, in violation of R. 1:21-6(c)(2). The subpoenaed financial records also revealed improper account designations on the attorney trust account statements, checks, and deposit slips, and checks and deposit slips lacking information required under the recordkeeping rules.

         Count Two

         As set forth above, on September 12, 2016, respondent became ineligible to practice law for failure to pay her CPF assessment? on September 21, 2016, she was suspended from the practice of law for failure to cooperate with the OAE investigation underlying this matter. Thereafter, on October 6, 2016, James F. Ferguson, County Counsel for the Atlantic County Department of Law, informed the OAE that respondent was practicing law while suspended. On September 15 and 29, 2016, respondent had submitted letters of representation to the Atlantic County Sheriff's Department, in behalf of three clients, requesting the postponement of pending sheriff's sales in mortgage foreclosure matters.

         On November 17 and 18, 2016, the OAE mailed (regular and certified, respectively) and faxed copies of Ferguson's grievance to respondent. The fax was successfully delivered, but the regular and certified mailings were returned to the OAE on December 2 and 12, 2016, respectively. Respondent failed to reply to the grievance.

         Count Three

         On October 21, 2016, Richard J. Tracy, a private practitioner who represented M&T Bank, filed a grievance with the OAE, alleging that respondent was practicing law while suspended. On September 20, 2016, respondent had submitted to Tracy a motion to vacate a judgment in connection with a foreclosure action. The motion identified respondent as the defendant's attorney. On September 26, 2016, respondent also filed a motion for substitution of attorney in the same foreclosure matter. Neither of respondent's motions were addressed in court, because she had failed to pay the required filing fees.

         On December 8, 2016, the OAE mailed (regular and certified) and faxed copies of the Tracy grievance to her. Although the fax was successfully delivered, the regular and certified mailings were returned to the OAE on December 28 and 29, 2016, respectively. Respondent failed to reply to the grievance.

         Count Four

         On November 9, 2016, Robert Schneider, Jr., an attorney with the Office of the United States Trustee, filed a grievance with the OAE, alleging that respondent had filed three cases in the United States Bankruptcy Court for the District of New Jersey while administratively ineligible to practice. The OAE confirmed that, on September 15 and 16, 2016, respondent ...


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