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In re Byrne

Supreme Court of New Jersey

September 17, 2018

In The Matters Of James Peter Byrne An Attorney At Law

         District Docket Nos. XIV-2017-0165E, VI-2017-0007E, VI-2017-0010E

          DECISION

          Disciplinary Review Board 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 three separate certifications of the record filed by the District VI Ethics Committee (DEC) (DRB 18-020 and DRB 18-127), and by the Office of Attorney Ethics (OAE) (DRB 18-112) pursuant to R, l:20-4(f), which we consolidated for disposition. In DRB 18-020, a ten-count complaint charged respondent with violations of RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), RPC 1.4(a) (failure to inform a prospective client how, when, and where the client may communicate with the attorney), RPC 1.4(b) (failure to keep the client reasonably informed about the status of the matter and to comply with reasonable requests for information), RPC 1.5(a) (unreasonable fee), RPC 1.16(d) (failure to protect the client's interests upon termination of the representation), RPC 8.1(b) (failure to cooperate with an ethics investigation), and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). In DRB 18-112, a one-count complaint charged respondent with violations of RPC 8.1(b) and RPC 8.4(d) (conduct prejudicial to the administration of justice), based on his failure to comply with the requirements of R. 1:20-20, governing suspended attorneys. In DRB 18-127, an eleven-count complaint charged respondent with violations of RPC 1.1(a), RPC 1.3, RPC 1.4(a), RPC 1.4(b), RPC 1.5(a), RPC 1.16(d), RPC 8.1(b), RPC 8.4(c), and RPC 8.4(d).

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

         Respondent was admitted to the New Jersey bar in 1991. On September 6, 2006, he received a reprimand for engaging in a conflict of interest by representing both the driver and passenger in filing claims against each other, and for failing to set forth in writing the rate or basis of his legal fee in nine personal injury matters. In re Byrne, 188 N.J. 249 (2006).

         On December 2, 2016, respondent was temporarily suspended for failure to comply with a fee arbitration determination. In re Byrne, 227 N.J. 189 (2016). He remains suspended to date.

         On February 1, 2018, we transmitted to the Supreme Court our decision in a default matter in which we determined to impose a three-month suspension for misconduct in a bankruptcy matter. Specifically, we found respondent guilty of gross neglect, lack of diligence, failure to communicate with the client, failure to return an unearned retainer and the client file upon termination of the representation, failure to cooperate with ethics authorities, and conduct involving dishonesty, fraud, deceit or misrepresentation. In the Matter of James Peter Byrne, DRB 17-286 (February 1, 2018). That matter is pending with the Court, with oral argument scheduled for September 26, 2018.

         I. DRB 18-020 - District Docket No. VI-2017-0007E (The Joseph Matter)

         Service of Process

         Service of process was proper in this matter. On November 13, 2017, the DEC sent a copy of the complaint by certified and regular mail to respondent's home address in Washington State. The certified mail green card was returned marked "Return to Sender, Not Deliverable As Addressed, Unable to Forward." The regular mail was not returned.

         On December 19, 2017, the DEC sent a second letter to respondent, to the same home address, also by regular and certified mail, informing him that if he did not answer 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 sanction; and that the complaint would be amended to include a charge of a violation of RPC 8.1(b).

         The certified mail envelope was returned marked "Return to Sender, Unclaimed, Unable to Forward," with the handwritten notation "Not at Address." The regular mail was not returned.

         The time within which respondent may answer the complaint has expired. As of January 16, 2018, the date of the certification of the record, respondent had not filed an answer.

         Allegations of the Complaint

         In 2013, Walter John Joseph retained respondent to file a bankruptcy petition. Joseph signed a written fee agreement and paid respondent's $1, 500 retainer.

         Joseph met with respondent several times during the representation to submit documents in support of his bankruptcy. However, in the summer of 2016, respondent ceased communicating with Joseph, despite his client's numerous attempts to contact him.

         The complaint alleged that, by being unavailable to Joseph after February 2014, [1] failing to tell Joseph how and where he could be contacted, and failing to reply to his client's numerous requests for information about the case, respondent violated RPC 1.4(a) and RPC 1.4(b), respectively.

         Respondent never filed Joseph's bankruptcy petition. Joseph learned from respondent's "Facebook" page that he had closed his law office and moved to Washington State to "play jazz."

         According to the complaint, by failing to file the bankruptcy petition for which Joseph had retained him, respondent grossly neglected and lacked diligence in the matter, violations of RPC 1.1(a) and RPC 1.3, respectively.

         During the representation, respondent was declared ineligible to practice law for failure to comply with the requirements of the New Jersey Lawyers' Fund for Client Protection (CPF), Continuing Legal Education (CLE), and Interest on Lawyer Trust Accounts (IOLTA) programs as follows: (1) CPF from September 26, 2011 to October 27, 2011, and August 24, 2015 to present; (2) CLE from November 17, 2014 to present; and (3) IOLTA from November 4, 2013 to July 30, 2014, and from October 27, 2015 to present.

         According to the complaint, because respondent was ineligible to practice law, he "effectively terminated his representation of [Joseph]." Likewise, respondent failed to inform Joseph of his ineligibility.

         Thereafter, respondent failed to return the unearned retainer, as well as Joseph's personal bills and other case documents entrusted to him.

         The complaint charged that, because respondent failed to prepare or file the bankruptcy petition for which he had been retained, the $1, 500 fee was unreasonable. Therefore, his failure to return it constituted a violation of RPC 1.5(a).

         Moreover, according to the complaint, by failing to take steps to protect Joseph's claims, to give him reasonable notice that respondent no longer represented him, and to return Joseph's documents upon the termination of the representation, respondent violated RPC 1.16(d).

         Respondent failed to reply to written communications from the OAE requesting updated contact information; to file changes of address for his home and office locations, as R. l:20-l(c) and R. l:21-l(a) require; and to notify the CPF of his new billing address, as R. 1:20-1(c) requires.

         By letters dated March 22 and May 19, 2017, the DEC sent respondent a copy of the grievance, to the same Washington State address, by certified and regular mail, presumably requesting his written reply to the grievance. Although the certified mail was returned as undeliverable, the regular mail was not returned. Nevertheless, respondent failed to contact the investigator, who, therefore, did not interview respondent for the investigation.

         The complaint alleged that respondent's failure to comply with the OAE's and DEC's repeated requests for information violated RPC 8.1(b).

         After accepting $1, 500 from Joseph to initiate his bankruptcy action, respondent thereafter failed to: (1) file a bankruptcy petition; (2) provide Joseph with billing statements indicating what, if any, legal services were provided; (3) return the unearned retainer and client documents entrusted to him; (4) keep Joseph reasonably informed about the status of his case and comply with his reasonable requests for information; and (5) take steps reasonably necessary to protect Joseph's interests upon termination of the representation. The complaint alleged that respondent's conduct in these respects violated RPC 8.4(c).

         II. DRB 18-112 - District Docket No. XIV-2017-0165E (The Compliance Matter)

         Service of Process

         Service of process was proper in this matter. On December 15, 2017, the OAE sent a copy of the complaint by certified and regular mail to respondent's home address in Washington State. The certified mail was ...


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