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In re Dwyer

Supreme Court of New Jersey

July 26, 2018

IN THE MATTERS OF ANDREW WILLIAM DWYER AN ATTORNEY AT LAW

          Ellen A. Brodsky, Chief Counsel

          DECISION

          BONNIE C. FROST, CHAIR

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

         These 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).

         We determine to impose a three-month suspension for the totality of respondent's misconduct in these two matters.

         Respondent 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).

         DRB 17-431 - District Docket No. VA-2016-0016E

         Service 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 were returned.

         On 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).

         The green certified mail return receipt was returned signed by "R. Wilson," indicating delivery on January 13, 2017. The regular mail was not returned.

         The 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 default.

         The Motion to Vacate Default

         On 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.

         In his 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 stated:

[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.

         In 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.

         Respondent 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."

         Respondent 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."

         Despite 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.

         Because 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 default.

         We turn to the facts alleged in the complaint.

         In the 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.

         Longo's 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.

         The 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."

         Respondent 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 ...


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