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In re Smith

Supreme Court of New Jersey

February 6, 2018

IN THE MATTER OF KEITH T. SMITH AN ATTORNEY AT LAW

          Argued: November 16, 2017

          District Docket Nos. XIV-2016-0486E, I-2015-0018E

          HoeChin Kim appeared on behalf of the Office of Attorney Ethics for DRB 17-306.

          Steven D. Scherzer appeared on behalf of District I for DRB 17-330.

          Respondent appeared pro se.

          Ellen A. Brodsky, Chief Counsel

          DECISION

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

         These matters were before us on a disciplinary stipulation filed by the Office of Attorney Ethics (OAE) (DRB 17-306) and on a recommendation for a six-month suspension, filed by the District I Ethics Committee (DEC) (DRB 17-330). We consolidated them for disposition.

         In DRB 17-306, respondent admitted having violated RPC 5.5(a)(1) and R. l:28A-2(d) (unauthorized practice of law) for failure to comply with the requirements of the Interest on Lawyers Trust Accounts (IOLTA) program.

         In 17-330, a two-count complaint charged respondent with violations of RPC 3.5, presumably (b) (a lawyer shall not have ex parte communications with a judge), and RPC 4.2 (improper communications about the subject of the representation with a person the lawyer knows to be represented by another lawyer).

         We determine to impose a three-month suspension for the combined misconduct in the matters.

         Respondent was admitted to the New Jersey bar in 1989. On October 1, 2008, he received an admonition for misconduct arising from a fee-sharing agreement with another attorney, which encompassed several matters. After allowing a complaint to be dismissed, respondent failed to take steps to have the complaint reinstated and to contact his client about the status of his case, violations of RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), and RPC 1.4(b) and (c) (failure to communicate with a client). Additionally, respondent violated RPC 1.5(e), because the proportionality of fees shared with the other attorney was not reasonable. In the Matter of Keith T. Smith, DRB 08-187 (October 1, 2008). In a later disciplinary matter, respondent was found guilty of additional violations in several of the client matters underlying the fee-sharing arrangement. No new discipline was imposed, however, because the second disciplinary matter was "inexorably intertwined" with the admonition matter. In re Smith, 2009 N.J. LEXIS 1408 (December 14, 2009).

         On June 7, 2011, respondent was censured for misconduct in two client matters, including gross neglect, a pattern of neglect, lack of diligence, failure to expedite litigation, and failure to cooperate with disciplinary authorities. In addition, respondent practiced law while ineligible, based on his failure to pay the New Jersey Lawyers' Fund for Client Protection (CPF) annual attorney assessment. In re Smith, 206 N.J. 137 (2011).

         The Court entered an Order, effective October 24, 2015, declaring respondent ineligible to practice law, based on his failure to comply with IOLTA requirements. He was returned to eligible status on December 11, 2015.

         Respondent was temporarily suspended from the practice of law, effective February 28, 2017, for failing to comply with a fee arbitration committee determination. In re Smith, 228 N.J. 2 (2017). He was reinstated less than a month later, on March 27, 2017. In re Smith, 228 N.J. 308 (2017).

         Most recently, on January 11, 2018, respondent, again, was censured in a default matter. There, respondent failed to comply with recordkeeping requirements, in violation of RPC 1.15(d) and R, 1:21-6, and failed to cooperate with the ethics investigation, in violation of RPC 8.1(b). In re Smith, ___ N.J. ___ (2018).

         I. DRB 17-306 (District Docket No. XIV-2016-0486E)

         The facts are contained in an August 22, 2017 stipulation between respondent and the OAE.

         On October 21, 2015, the Court entered an Order, effective October 27, 2015, declaring respondent administratively ineligible to practice law, based on his failure to comply with IOLTA requirements. Respondent was returned to eligible status on December 11, 2015.

         On November 12, 2015, during that ineligibility period, respondent filed a complaint in Superior Court of New Jersey, Atlantic County, in behalf of client William Lacovera. When respondent filed the complaint, he was unaware of his IOLTA ineligibility, having previously paid the annual CPF assessment on September 4, 2015. Indeed, respondent learned of his ineligibility only much later, during the summer of 2017.

         Respondent stipulated that his actions in the Lacovera matter violated RPC 5.5(a)(1) and R. l:28A-2(d).

         The OAE recommended an admonition for respondent's misconduct, citing several admonition cases involving attorneys who, like respondent, were unaware of their ...


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