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In re Perlman

Supreme Court of New Jersey

March 2, 2018

IN THE MATTER OF JEFFREY L. PERLMAN AN ATTORNEY AT LAW

          Argued: January 18, 2018

          Eugene Racz appeared on behalf of the Office of Attorney Ethics.

          Howard Kanowitz appeared on behalf of respondent.

          Ellen A. Brodsky Chief Counsel

          DECISION

          EDNA Y. BAUGH, VICE-CHAIR.

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

         This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (OAE), following respondent's November 4, 2016 suspension, for eighteen months in Pennsylvania, for his violation of the Pennsylvania equivalents of New Jersey RPC 1.1(a) (gross neglect); RPC 1.1(b) (pattern of neglect); RPC 1.3 (lack of diligence); RPC 1.4(b) (failure to communicate with the client) and (c) (failure to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); RFC 1.15(a) (failure to safeguard, negligent misappropriation, and commingling); RFC 1.15(b) (failure to promptly notify and deliver funds or property to client or third party); RPC 1.16(d) (failure to protect client's interests upon termination of representation); RFC 3.2 (failure to expedite litigation); RPC 4.1 (presumably (a)(1), false statement of material fact or law to a third person); RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and RPC 8.4(d) (conduct prejudicial to the administration of justice).

         The OAE seeks an eighteen-month suspension. Respondent urges a suspension retroactive to his suspension in Pennsylvania. For the reasons stated below, we determine to impose a one-year prospective suspension.

         Respondent was admitted to the Pennsylvania bar in 1983 and the New Jersey bar in 1984. He has no history of discipline in New Jersey. He has been administratively ineligible to practice law in New Jersey since September 12, 2016 for failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection (the Fund).

         On September 19, 2016, respondent entered into a Joint Petition in Support of Discipline on Consent (Joint Petition) with the Pennsylvania Office of Disciplinary Counsel (ODC). The petition included eleven charges of misconduct characterized as "involving a pattern of neglect and lack of communication with some mishandling of fiduciary funds." On October 5, 2016, respondent was temporarily suspended in Pennsylvania. On November 4, 2016, the Supreme Court of Pennsylvania granted the petition and ordered respondent suspended for eighteen months, retroactive to the date of his temporary suspension.

         The underlying misconduct, as set forth in the joint petition, was as follows.

         CHARGE I; THE JENNY JEAN-LOUIS MATTER

         Jenny Jean-Louis retained respondent in October 2012, after she was injured in a November 2010 car accident. On October 17, 2012, respondent filed a complaint on behalf of Jean-Louis. On January 16, 2014, he settled the matter for $10, 000. Respondent failed to inform Jean-Louis that he had accepted the settlement offer on her behalf, failed to forward the previously drafted release of claims to her, and failed to request that she execute and return that release.

         On February 10, 2014, Peter A. Dorn, counsel for defendant, inquired of respondent regarding the release, to no avail. Hence, on March 6, 2014, Dorn filed a motion to enforce the settlement. Respondent failed to reply to that motion. On April 4, 2014, the court issued an order to show cause, returnable on April 29, 2014. Respondent did not reply. Subsequently, on May 1, 2014, Dorn filed a second motion to enforce the settlement. The same day, the court issued another order to show cause, returnable on May 27, 2014. Respondent, again, failed to reply. On May 27, 2014, the court granted the second motion to enforce the settlement and dismissed the first motion as moot. One month later, on July 10, 2014, Dorn filed a motion for sanctions.

         Soon thereafter, in an August 12, 2014 letter, Frank N. DiMeo, Esq., informed respondent that Jean-Louis had retained his firm, and requested respondent's client file. On September 9, 2014, DiMeo again sent the same letter. Respondent did not reply to either letter.

         Meanwhile, on September 3, 2014, the court set a return date of September 30, 2014, for an order to show cause as to why Dorn's motion for sanctions should not be granted. On September 30, 2014, respondent appeared for the order to show cause. Outside of the courtroom, he met with DiMeo's law partner, James D. Rosen, Dorn, and Jean-Louis. During the conversation, Jean-Louis accepted the $10, 000 settlement offer, provided she would receive between $5, 000 and $6, 000 from the proceeds; she executed a full release of her claims formalizing the settlement; and respondent agreed to satisfy any outstanding medical bills through either first party benefits or his own personal funds, with no contribution from Jean-Louis. Dorn withdrew the motion for sanctions.

         On October 6, 2014, Dorn sent to respondent a $10, 000 settlement check and a draft Order to Settle, Discontinue and End. Dorn requested that respondent execute and return the order. On October 13, 2014, Rosen wrote to respondent, asserting that he had received a copy of Dorn's letter, and that he expected respondent to forward to him a check for no less than $5, 500, payable to Jean-Louis.

         In a telephone conversation in early November 2014, respondent told Rosen that he had not yet deposited the $10, 000 settlement check into his escrow account. Soon thereafter, on November 12, 2014, Rosen sent respondent a follow-up letter, memorializing their conversation. The letter also noted that, notwithstanding respondent's receipt of the settlement check more than one month previously, Jean-Louis still had not received her portion of the proceeds. Rosen cautioned respondent that, if he failed to forward at least $5, 500 to Jean-Louis within one week, Rosen would report respondent to "the Bar Association." Respondent failed to forward any portion of the settlement proceeds to Jean-Louis.

         On December 3, 2014, Dorn filed a motion to enforce the settlement. On January 26, 2015, the court ordered Jean-Louis' civil matter marked "settled, discontinued, and ended," and noted that, although the defendant had received the executed release and had sent the $10, 000 settlement check, respondent had failed to sign the order to settle, discontinue, and end. Almost six months later, in June 2015, respondent mailed a $6, 000 check to Jean-Louis, which represented her share of the proceeds.

         Respondent stipulated that his conduct in representing Jean-Louis violated the Pennsylvania equivalent of RPC 1.3, RPC 1.4(b), RPC 1.15(b), and RPC 8.4(d).

         CHARGE II: MISHANDLING OF FIDUCIARY FUNDS

         Failure to Pay Third Parties

         On December 2, 2014, respondent deposited a $12, 500 settlement check into his IOLTA account in connection with a personal injury matter involving his client, Valerie Farmer. According to a hand-written distribution sheet respondent prepared for Valerie Farmer, he withheld $1, 400 from the settlement proceeds to pay a third party identified as "Cover Bridge." Respondent, however, failed to pay $1, 400 to Cover Bridge.

         On December 29, 2014, respondent deposited an $18, 000 settlement check into his IOLTA account in connection with a personal injury matter involving his client, Yolanda Willis. According to a hand-written distribution sheet he prepared for Willis, respondent withheld $800 from the settlement proceeds to pay a medical bill that Willis owed to "Dr. Weinerman." Yet, respondent failed to pay $800 to Dr. Weinerman.

         On January 16, 2015, respondent deposited a $10, 800 settlement check into his IOLTA account in connection with a personal injury matter involving his client, Stephanie Scannapieco. According to a hand-written distribution sheet he prepared for Scannapieco, respondent withheld $1, 500 from the settlement proceeds to pay an outstanding medical bill. The medical provider was not identified on the distribution sheet. Nevertheless, respondent failed to pay $1, 500 to any medical provider on behalf of Scannapieco.

         On March 4, 2015, respondent deposited a $13, 500 settlement check into his IOLTA account in connection with a personal injury matter involving his client, Mariana Kandeh. According to a handwritten distribution sheet he prepared for Kandeh, respondent withheld $160 from the settlement proceeds to pay a medical bill. The medical provider was not identified on the distribution sheet. Respondent failed to pay $160 to any medical provider on behalf of Kandeh.

         On March 19, 2015, respondent deposited a $4, 850 settlement check into his IOLTA account in connection with a personal injury matter involving his client, Jasmine Farmer. According to a hand-written distribution sheet that he prepared for Jasmine Farmer, respondent withheld $825 from the settlement proceeds to pay Cover Bridge. Respondent failed to pay $825 to Cover Bridge.

         Failure to Make Full Distribution of Client Funds

         On December 8, 2014, respondent deposited a $25, 000 settlement check into his IOLTA account in connection with a personal injury matter involving his client, Kameron Fowlkes. Respondent distributed the settlement proceeds as follows:

a. $12, 240.52 to Fowlkes as her share of the settlement proceeds;
b. $10, 000 to himself for his fees; and
c. $509.48 to himself as reimbursement of costs.

         Respondent distributed $22, 750 of the $25, 000 settlement proceeds, but failed to distribute the remaining balance of $2, 250 to Fowlkes.

         Commingling of Personal Funds with Fiduciary Funds

         On December 30, 2014, respondent deposited a check for $2, 000 into his IOLTA account. That check was drawn on personal funds from his operating account. At the time he deposited the check, respondent maintained fiduciary funds on behalf of his client Willis, in his IOLTA account. Hence, respondent commingled personal funds with fiduciary funds in his IOLTA account.

         Respondent stipulated that the aforementioned conduct violated the Pennsylvania equivalent of RFC 1.15(a) and RPC 1.15(b).[1]

         CHARGE III: THE DERRICK J. JAMES MATTER

         On March 5, 2013, respondent filed a complaint on behalf of Derrick James, who had retained him in connection with injuries sustained during a 2011 accident. On October 29, 2013, respondent filed a "praecipe" to defer James' civil case because James was incarcerated.[2] On November 7, 2013, the court placed the James civil case on deferred status.

         Two years later, on December 1, 2015, the court issued a "1901 Docket Inactivity Notice." The notice was issued pursuant to Pa.R.J.A. 1901, which provides that a matter that has been inactive for an unreasonable period shall be terminated upon motion of the court. The notice granted respondent, on behalf of James, thirty days to seek a hearing on the proposed termination of the matter.

         By letter dated December 4, 2015, Pennsylvania Disciplinary Counsel Richard Hernandez informed Samuel C. Stretton, respondent's counsel, that the court had issued the inactivity notice. He asked Stretton to urge respondent to act promptly to ensure that James' civil case was not terminated. Although Stretton informed respondent of the notice, respondent failed to take any action.

         On February 1, 2016, the court administratively closed James' civil case due to inactivity of more than twenty-four months. Respondent failed to notify James that his matter had been administratively closed.

         Respondent stipulated that the aforementioned conduct violated the Pennsylvania equivalents of RPC 1.3 and RPC 1.4(b) and (c).

         CHARGE IV: THE TSRRANCE L. TAYLOR MATTER

         On May 4, 2009, Terrence Taylor was a passenger on a Southeastern Pennsylvania Transportation Authority (SEPTA) bus that was struck by an automobile. Taylor later retained respondent to represent him in obtaining compensation for the injuries he sustained in the accident.

         On April 21, 2011, respondent filed a complaint on behalf of Taylor. Fifteen months later, at a July 23, 2012 arbitration hearing, Taylor was awarded $3, 500. No appeal was taken from that award. Sometime thereafter, respondent received a $3, 500 settlement check from SEPTA, but misplaced it. Respondent failed to notify Taylor not only that he had received the check, but also that he had misplaced it. Thereafter, respondent failed to act promptly to obtain a replacement settlement check.

         During the course of 2015, Taylor and his friend, Laverne Burgess, called respondent to inquire about the delay in Taylor's receipt of settlement proceeds. At some point, respondent informed Taylor and Burgess that he was waiting to receive a settlement check. In October 2015, respondent received a replacement settlement check from SEPTA. On November 24, 2015, he provided Taylor ...


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