IN THE MATTERS OF ANDREW WILLIAM DWYER AN ATTORNEY AT LAW
A. Brodsky, Chief Counsel
C. FROST, CHAIR
Honorable Chief Justice and Associate Justices of the Supreme
Court of New Jersey.
matters were before us on separate certifications of default
filed by the District IV and District VA Ethics Committees
(DEC), pursuant to R. 1:20-4(f), which we determined to
consolidate for disposition. In DRB 17-431, a three-count
District VA complaint charged respondent with violations of
RPC 1.1(a) (gross neglect), RPC 1.3 (lack
of diligence), RPC 1.4 (b) and (c) (failure to keep
the client adequately informed about the status of the case
and to reply to reasonable requests for information and to
explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the
representation), and RPC 8.1(b) (failure to
cooperate with a disciplinary investigation). In DRB 17-432,
a one-count District IV complaint charged respondent with
failure to comply with the DEC's requests for information
about respondent's handling of an employment lawsuit, in
violation of RFC 8.1(b).
determine to impose a three-month suspension for the totality
of respondent's misconduct in these two matters.
was admitted to the New Jersey bar in 1990 and the New York
bar in 1991. On September 25, 2015, he was reprimanded I for
misconduct that took place in 2008 and 2009, specifically, j
gross neglect, lack of diligence, failure to communicate with
the client, failure to expedite litigation (RPC 3.2), and
misrepresentation to the client (RPC 8.4(c)). In
re Dwyer, 223 N.J. 240 (2015).
17-431 - District Docket No. VA-2016-0016E
of process was proper in this matter. On October 26, 2016,
the DEC sent respondent a copy of the complaint at his office
address listed in the attorney registration records, by
certified mail, return receipt requested, and by regular
mail. Neither the certified mail receipt nor the regular mail
January 10, 2017, the DEC sent a second letter to respondent,
by certified and regular mail, to the same office address,
notifying him that, unless he filed an answer to the
complaint within five days of the date of the letter, the
allegations of the complaint would be deemed admitted; that,
pursuant to R.. 1:20-4(f) and R. 1:20-6(c)(1), the record in
the matter would be certified directly to us for imposition
of discipline; and that the complaint would be amended to
include a charge of a violation of RPC 8.1(b).
green certified mail return receipt was returned signed by
"R. Wilson," indicating delivery on January 13,
2017. The regular mail was not returned.
time within which respondent may answer the complaint has
expired. As of November 6, 2017, the date of the
certification of the record, respondent had not filed an
answer. Therefore, the DEC certified the record to us as a
Motion to Vacate Default
February 15, 2018, respondent filed a motion to vacate the
default. In order to prevail on such a motion, a respondent
must satisfy a two-pronged test. First, he must offer a
reasonable explanation for his failure to answer the ethics
complaint. Second, he must assert a meritorious defense to
the underlying charges.
certification in support of the motion, respondent admitted
the core misconduct charged in the complaint - that he
neglected the employment action of Doreen Longo. Respondent
[I]n the fall of 2014, I was having a series of personal
crises, which lead -[sic] me to substantially neglect my
work. I was going through a divorce and losing my home. I was
also in a relationship with an individual who - it turned out
- was a heroin addict, and as a result I was spending most of
my time trying to get this person into and to remain in a
drug rehabilitation facility. Basically my life was
completely falling apart.
addition, respondent's certification revealed various
health issues, although he did not suggest that these
illnesses were responsible for his failure to answer the
within complaints. He claimed that, as a result of his
personal circumstances described above, he failed to file an
appeal for Doreen Longo.
further stated that Longo filed a malpractice claim against
him, which led him to conclude that, "the parties were
going to resolve all of their disputes in the context of that
lawsuit.... I did not believe that Ms. Longo was continuing
to pursue her grievance against me."
further stated that, "[i]f the default in this matter
were vacated, I would not contest that I improperly neglected
Ms. Longo's file, about which I feel remorseful. But I
would raise defenses related to mitigation."
the admission that he neglected Longo's case in 2014,
respondent did not address his prong-one failure to answer
the formal ethics complaint, from late October 2016, when he
was first served, to November 6, 2017, the date of the
certification of the record to us. His reasoning - that he
thought Longo was abandoning her grievance - makes little
sense to us. Once respondent was aware that an ethics
complaint, had been filed against him, he knew that he had an
obligation to answer it. Had respondent believed that the
complaint was somehow moot, he should have confirmed that
understanding with ethics authorities. He did not do so.
respondent failed prong one of the default test (a reasonable
explanation for his failure to answer the Longo
complaint), we determine to deny the motion to vacate the
to the facts alleged in the complaint.
summer of 2006, Doreen Longo retained respondent to represent
her in an action against her employer, under the New Jersey
Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1-34:18-14.
CEPA claims went to trial, and resulted in a jury award of
$120, 000 for economic loss, $30, 000 for emotional distress,
and $500, 000 in punitive damages.
defendant/employer appealed the punitive damages award, which
was reversed and remanded for a new punitive damages trial
"on the grounds that the trial court had failed to give
a proper [jury] instruction."
represented Longo for the second punitive damages trial in
July 2014, which resulted in a $40, 000 jury award to Longo.
Rather than accept the award, Longo instructed respondent to
file a motion for a third punitive damages trial, based on