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In re Babcock

Supreme Court of New Jersey

April 30, 2018

IN THE MATTERS OF FRANCIS CHARLES BABCOCK, JR. AN ATTORNEY AT LAW

          Argued: January 18, 2018 (DRB 17-348) [1]

         District Docket Nos. XIV-2014-0542E and VI-2016-0007E

          HoeChin Kim appeared on behalf of the Office of Attorney Ethics.

          Respondent appeared pro se.

          Ellen A. Brodsky, Chief Counsel.

          DECISION

          Bruce W. Clark, Vice-Chair.

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

         These matters were before us on a recommendation for reprimand filed by the District VI Ethics Committee (DEC) (DRB 17-348) and a certification of the record filed by the DEC (DRB 17-446), pursuant to R. 1:20-4(f). We have consolidated them for disposition.

         Respondent was admitted to the New Jersey bar in 1990.

         On October 5, 2017, respondent received a reprimand, in a default matter, for gross neglect, lack of diligence, failure to keep a client reasonably informed about the status of the matter, and failure to cooperate with disciplinary authorities. The underlying conduct occurred between 2011 and 2014. In re Babcock, 231 N.J. 8 (2017) .

         For the reasons stated below, we determine to impose a censure for respondent's misconduct in both matters.

         The Thompson Estate Matter (17-348)

         The complaint charged respondent with violating RPC 1.1(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.15(b) (failure to promptly notify and deliver funds or property to a client or third party); RPC 1.16(d) (failure to protect a client's interests upon termination of representation); RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal); RPC 8.1(b) and R. 1:20-3(g)(3) (failure to cooperate with disciplinary authorities); and RPC 8.4(d) (conduct prejudicial to the administration of justice).

         Prior to the hearing before the DEC, respondent and the Office Of Attorney Ethics (OAE) entered into a stipulation of facts and respondent admitted some of the RPC violations alleged in the complaint, as follows. By letter dated September 18, 2014, the Hon. Katherine R. Dupuis, P.J. Ch., reported to the OAE that, on December 17, 2008, by way of consent order, respondent had been appointed administrator of the Estate of Andrew Thompson (the estate). In November 2013, a disgruntled beneficiary of the estate filed a complaint seeking an accounting from respondent.

         On March 27, 2014, again by consent order, respondent agreed to provide an accounting to the parties by April 27, 2014, but failed to meet that deadline. In June 2014, he provided a preliminary accounting to Henry Purst, counsel for one of the beneficiaries.

         In a May 18, 2014 letter, another attorney involved in the estate litigation asked respondent for an update on the status of the accounting. Respondent replied that he would "remedy the delinquency" and send a distribution check by May 29, 2014.

         On July 17, 2014, Judge Dupuis entered an order requiring respondent to provide the accounting as he had agreed in the March 27, 2014 consent order. In September 2014, four months after he had committed to do so, respondent finally sent a distribution check to Furst.

         By letter dated October 28, 2014, the OAE sent a copy of Judge Dupuis letter to respondent, requesting a written response and records relating to the estate, by November 10, 2014. Two days later, on October 30, 2014, Judge Dupuis removed respondent as administrator of the estate and signed a bench warrant for his arrest, based on his failure to comply with the court's prior was appointed as the "Substitutionary Administrator."

         On November 12, 2014, respondent telephoned OAE Disciplinary Auditor Harry Rodriguez and requested additional time to reply to the OAE's October 28, 2014 letter. Although the OAE extended this deadline to November 21, 2014, respondent failed to provide a written response to Judge Dupuis' referral letter. By letter dated December 2, 2014, the OAE enclosed copies of all of its prior correspondence, and, again, requested respondent's written response, setting a deadline of December 12, 2014.

         On December 12, 2014, respondent sent a two-page fax to Rodriguez, listing deposits and disbursements from a Capital One bank account, without including an account number or supporting documentation. Respondent explained that he had "not been able to pull out the back up for this yet but expect to have most of it by Monday [December 15, 2014]. I will fax it to you." He did not include a written explanation for his failure to comply with Judge Dupuis' prior orders. Despite his representation, respondent failed to provide any additional information by December 15, 2014.

         The OAE, therefore, subpoenaed records relating to the estate from both Capital One and Wells Fargo, along with respondent's attorney accounts, to confirm the deposits and disbursements that he had listed on the fax. Those records showed that respondent opened an administrator's account for the estate at Capital One on January 14, 2009, with a $50 deposit. Between January 2009 and November 2014, various transactions occurred within the estate account and, on November 30, 2014, a balance of $52, 478.58 remained in the account.

         In an April 10, 2015 letter, the OAE scheduled a demand audit of respondent's books and records, for April 29 2015 which was later rescheduled to May 6, 2015. Meanwhile, on April 30, 2015, Judge Dupuis entered an order, declaring respondent to be in violation of litigant's rights for failure to surrender the file to the substitute administrator, and entered judgment against him for attorney's fees and costs.

         On May 5, 2015, respondent asked the OAE to adjourn the demand audit scheduled for the following day. Ethics counsel informed respondent that the audit would not be adjourned unless he provided the previously requested documents to the OAE. Respondent replied that, although he had some of the documents, he would not send them, - that he was in the process of obtaining the rest of the documents; and that he intended to see Judge Dupuis that day to "straighten out" the matter. Respondent represented that he would fax the documents to the OAE by 7:00 a.m. on May 6, 2015. He neither faxed the documents nor appeared . for the May 6, 2015 demand audit.

         On May 12, 2015, the OAE contacted Judge Dupuis, who confirmed that respondent had appeared on May 5, 2015. She refused to see him, however, because he had not filed any papers with the court or provided his file ...


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