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In re Pinnock

Supreme Court of New Jersey

July 30, 2018

IN THE MATTER OF JOAN OTHELIA PINNOCK AN ATTORNEY AT LAW

          Argued: June 21, 2018

          District Docket Nos. VA-2014-0017E, VA-2014-0018E, VA-2014-0G23E, VA-2014-0026E, VA-2015-0011E, VA-2015-0012E, VA-2015-0014E, VA-2015-0016E, VA-2015-0034E, VA-2016-0015E

          Sam Delia Fera, Jr. appeared on behalf of the District VA Ethics Committee.

          Robert J. De Groot appeared on behalf of respondent.

          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.

         This matter was before us by way of a disciplinary stipulation between the District VA Ethics Committee (DEC) and respondent. Respondent admitted violating RFC 1.1(a) (gross neglect); RPC 1.1(b) (pattern of neglect); RPC 1.3 (lack of diligence); RPC 1.4 (presumably (b) (failure to communicate with the client); RPC 5.1(b) (failure to supervise); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). For the reasons stated below, we determined to impose a three-month suspension.

         Respondent was admitted to the New Jersey bar in 1997. She maintains a law office in Newark, New Jersey.

         On October 17, 2013, respondent received a reprimand for failure to communicate with her client, lack of diligence, and failure to protect her client's interests upon termination of the representation in an immigration and a matrimonial matter. She also failed to memorialize the rate or basis of her fee, in writing, in the matrimonial matter. In aggravation, we considered that respondent had failed to return a filing fee and that her misconduct put her immigration client's freedom in jeopardy. In re Pinnock, 216 N.J. 405 (2013).

         On January 12, 2018, respondent and the DEC entered into a disciplinary stipulation, which encompasses ten client matters.

         The Theophilus Stephens Matter (VA-2014-0017E)

         On November 1, 2012, Theophilus Stephens retained respondent to represent him in a divorce action. The retainer agreement required a fee of $1, 500, plus reimbursement of expenses. In total, Stephens paid $1, 000 plus $250 for filing fees.

         Several months later, on March 14, 2013, Stephens executed the certification accompanying the divorce complaint. Respondent's office then sent the pleadings to the New York Supreme Court, Nassau County, for filing. On May 6, 2014, the papers were returned to respondent's office because they did not include an original signature. Respondent's office "purported" to .re-submit the pleadings with an original signature, on May 13, 2013. Those papers, however, were not stamped "received" by the Nassau County court until September 6, 2013, nearly four months later.

         Three weeks later, on September 26, 2013, respondent's paralegal sent the filed pleadings to the sheriff's office in Alabama for service. On October 29, 2013, nearly one year after Stephens had retained respondent, the pleadings were returned because the sheriff in Alabama could not find an address for service in the county. The sheriff's office had "called [respondent's] office and left a message but [had] not heard back from anyone."

         From the fall of 2013 through May 2014, respondent failed to accept or return Stephens' phone calls seeking status updates for his matter. Stephens received promises and assurances from members of respondent's staff, including her secretary and associate, that his matter was being handled. Eventually, in May 2014, Stephens hired new counsel.

         Stephens' divorce complaint was dismissed for lack of prosecution. Respondent never obtained the divorce judgment for which she had been retained and paid. This failure adversely affected Marsha Smith, Stephens' fiancee, who had retained respondent in a related matter described below.

         The Marsha Smith Matter (VA-2014-0018E)

         On April 14, 2012, Marsha Smith retained respondent to obtain an adjustment of her immigration status and a waiver of inadmissibility. The retainer agreement required a fee of $3, 500, plus filing fees. Smith paid respondent a total of $2, 250.

         On July 27, 2012, respondent filed an 1-601 Application for Waiver of Grounds of Inadmissibility. On August 7, 2012, the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services Department (USCIS) returned the application because the "A number" provided was not located in its system. Respondent explained to Smith that, "the rejection was in error." Instead of correcting the filing, however, respondent advised Smith to marry her fiance, Stephens (also respondent's client as stated above), with whom she had two children. Respondent further advised Smith that, after the marriage, they could re-file the waiver application together with an adjustment of status application.

         Similar to the Stephens matter, over the course of many months, respondent and her staff became unresponsive to repeated requests for information about the status of Smith's matter. In addition to her failure to obtain the divorce judgment for Stephens, respondent neither resubmitted the waiver of inadmissibility application for Smith, nor filed her change of status application.

         The Patricia Campbell Matter (VA-2014-0023E)

         In June 2012, Patricia Campbell retained respondent to submit a Form 1-485 Adjustment of Status Application for her, with her daughter as the petitioner. At their initial meeting, Campbell paid respondent $3, 290 toward the total legal and filing fees of $4, 490, required by the retainer agreement.

         Campbell submitted to respondent all of the necessary documents for the 1-485 application. According to the stipulation, it "does not appear that the application was ever filed." Respondent suggested that Campbell submit a new Freedom of Information Act (FOIA) request for her complete alien file, because her prior request had been submitted in Campbell's former name, which she changed when she married. Although Campbell provided all of the necessary FOIA documents, respondent never filed the FOIA request.

         After approximately two months, Campbell sought a status update on the FOIA request from respondent, who replied that she had submitted the application and was awaiting a reply. Over the next several months, Campbell received the same answer from respondent and then, eventually, received no responses at all. Respondent was unresponsive to Campbell and did not perform any substantive services for which she had been paid.

         The Arthur Esposito Matter (VA-2014-0026E)

         On July 28, 2007, Arthur Esposito retained respondent to obtain permanent resident status for two employees at his company, A.C.E. Contracting Company. Esposito paid respondent $22, 000 for services that she never performed.

         Employee Juan Perez Santamaria

         In May 2011, respondent obtained approval of an ETA Form 9089 for Juan Perez Santamaria, but then failed to timely submit Form 1-140 (Immigrant Petition for Alien Worker) to USCIS within 180 days, causing the ETA Form 9089 to expire, in October 2011. Therefore, the 1-140 application was denied "in or before November 2012."

         During a period of approximately fifteen months, and despite repeated inquiries, respondent failed to provide Esposito with any information about the application. Esposito did not learn,, until February 2014, that the application needed to be re-filed.

         During those fifteen months, Esposito spoke with respondent's associates named Tia, Mike, Tass, and Gloria, none of whom adequately responded to his inquiries. Finally, in February 2014, Gloria advised Esposito that the filing process would have to begin again. Esposito requested a meeting with respondent, but received no reply until November 2014, nine months later.

         Respondent's failure to prosecute Santamaria's application to completion resulted in its denial.

         Employee Mario Chali Chitic

         On July 29, 2008, respondent filed an application for an ETA Form 9089 on behalf of Esposito's employee, Mario Chali Chitic. Between July 2007 and March 2009, Esposito received no updates from respondent regarding Chitic's application.

         On March 20, 2009, the Department of Labor (DOL) notified respondent that the ETA Form 9089 for Chitic was selected for an audit, requiring additional information for approval. Respondent was informed of the following potential consequences of failing to submit the required documents by April 20, 2009:

(1) the application would be denied;
(2) the failure to provide the requested documentation in a timely manner would constitute a refusal to exhaust available ...

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