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In re Leite

Supreme Court of New Jersey

May 23, 2018

In the Matter of Robert Captain Leite

          PETER J. BOYER, ESQ. HON. MAURICE J. GALLIPOLI THOMAS J. HOBERMAN REGINA WAYNES JOSEPH, ESQ. EILEEN RIVERA ANNE C. SINGER, ESQ. ROBERT C. ZMIRICH, ELLEN A, BRODSKY CHIEFCOUNSEL PAULA T. GRANUZZO DEPUTY CHIEF COUNSEL MELISSA URBAN FIRST ASSISTANT COUNSEL TIMOTHY M. ELLIS LILLIAN LEWIN BARRY R. PETERSEN, JR. COLIN T. TAMS KATHRYN ANNE WINTERLE ASSISTANT COUNSEL

          BONNIE C. FROST, ESQ., CHAIR, BRUCE W. CLARK, ESQ., VICE-CHAIR

         Dear Mr. Neary:

         The Disciplinary Review Board reviewed the motion for discipline by consent (reprimand or such lesser discipline as the Board deems appropriate) filed by the District IV Ethics Committee (DEC), pursuant to R.1:20-10(b)(1). Following a review of the record, the Board determined to grant the motion. In the Board's view, a reprimand is the appropriate discipline for respondent's violations of RPC 1.4(b), RPC 1.4(c), RPC 1.16(c) and RPC 1.16(d). The Board determined to dismiss the allegation that respondent violated R.1:20-20(a) (prohibited association with a disbarred attorney in connection with the practice of law), because the stipulation charged no RPC violation to capture that unethical conduct.

         Specifically, in February 2013, grievant Steven Sbaraglio and his wife, Antoinette, retained respondent to commence a civil action against their mortgage lenders, who had instructed them to purposely default on their mortgage debt to become eligible for a desired mortgage modification. Although the Sbaraglios followed that advice, they were unable to negotiate a satisfactory mortgage modification. Thus, respondent knew that the Sbaraglios sought monetary damages to compensate them for the unforeseen damage that their credit ratings suffered as a result of the lender's detrimental advice.

         In 2013, respondent filed a lawsuit against the mortgage lenders, alleging a "forced mortgage default" cause of action. Between November 2013 and March 2015, the Sbaraglios communicated often with Joe Scafidi, respondent's law clerk, a disbarred Pennsylvania attorney whom respondent had employed, despite full knowledge of his disbarment.

         Around March 2015, the lenders' counsel filed a motion to dismiss an amended complaint that respondent had filed. Respondent filed no opposition to that motion. Consequently, the Sbaraglios' case was dismissed without prejudice. Respondent neither provided the Sbaraglios with a copy of the dismissal order nor notified them of the dismissal, claiming that, in March or April 2015, Mr. Sbaraglio had "effectively fired" him.[1]

         Respondent further claimed that he had formally terminated the representation, in writing, and admitted that, as of May 2105, he had ceased all communication with the Sbaraglios. The Sbaraglios denied that they had fired respondent or had received any communication from him terminating the representation. Moreover, respondent failed to seek leave of the court to terminate the representation, failed to prepare or file a substitution of attorney, and failed to notify opposing counsel of his withdrawal from representation.

         In September 2015, after the Sbaraglios' lenders served a foreclosure complaint on them, they sent respondent and Scafidi e-mails, informing them of the lenders' foreclosure action, and seeking information on the status of the lawsuit. Despite receiving both e-mails from the Sbaraglios, plus forwards of the same e-mails from Scafidi, respondent failed to reply to the Sbaraglios.

         The Sbaraglios ultimately retained new counsel, obtained a mortgage modification, and avoided foreclosure.

         Typically, attorneys with no disciplinary history, who violate RPC 1.4(b), and RPC 1.16(d), even when accompanied by other, non-serious ethics infractions, receive admonitions. See e.g., In the Matter of William E. Wackowski, DRB 09-212 (November 25, 2009) (attorney permitted a complaint to be administratively dismissed, failed to inform his client of the dismissal, and failed to turn over the file to the client upon termination of the representation); In re Cameron, 196 N.J. 396 (2007) (attorney twice permitted a personal injury matter to be dismissed, failed to disclose the dismissals to the client, failed to return the client's telephone calls, and failed to turn the file over to successor counsel; in addition to RPC 1.3, RPC 1.4(b), and RPC 1.16(d), the attorney was deemed to have engaged in gross neglect, a violation of RPC 1.1(a)); and In the Matter of Vera Carpenter, DRB 97-303 (October 27, 1997) (in a personal injury matter, attorney failed to act diligently to advance the client's claim, failed to return the client's telephone calls, and failed to turn over the client's file to new counsel).

         Few reported disciplinary cases address violations of RPC 1.16(c). In one such case, In re Saavedra, 162 N.J. 108 (1999), a three-month suspension was imposed. There, the attorney unilaterally withdrew from the representation of a minor in connection with a delinquency complaint. When the juvenile's family failed to pay Saavedra's fee, he left the courthouse without notifying the judge, who then rescheduled the matter. When the juvenile appeared before the judge in a different matter, another attorney informed the judge that Saavedra was no longer representing the juvenile. Because the trial date already had been set in the first matter, that attorney was directed to inform Saavedra that he could not unilaterally withdraw from the representation and was required to file a motion to be relieved as counsel. When Saavedra appeared later that day, the judge informed him that it was unlikely that such a motion would be granted at that late date.

         Saavedra neither appeared for the rescheduled trial nor filed a timely motion to withdraw from the representation. The judge again adjourned the trial. The judge received Saavedra's motion the day after the scheduled trial, denied it, and required Saavedra to appear at the rescheduled trial. Saavedra again failed to appear.

         Saavedra was found guilty of having violated RPC 1.16(c), as well as RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), and RPC 8.4(d) (conduct prejudicial to the administration of justice). In imposing a three-month suspension, the Board considered the attorney's significant ...


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