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In re Huneke

Supreme Court of New Jersey

October 16, 2018

In The Matter of William L. Huneke An Attorney at Law

          District Docket No. XIV-2016-0777E

          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 on a certification of the record filed by the Office of Attorney Ethics (OAE), pursuant to IL 1:20-4(f). The formal ethics complaint charged respondent with violations of RPC 1.15(a) (commingling and failure to safeguard client funds); RPC 1.15(d) and IL 1:21-6 (recordkeeping); and RPC 8.1(b) (failure to cooperate with disciplinary authorities).

         Respondent filed a motion to vacate the default. For the reasons set forth below, we determine to deny that motion and to impose a censure, with a condition, based on the record before us.

         Respondent earned admission to the New Jersey bar in 1979. During the relevant time frame, he maintained a law practice in Toms River, New Jersey. He has no disciplinary history.

         Service of process was proper in this matter. On January 31, 2018, the OAE sent a copy of the formal ethics complaint to respondent, by certified and regular mail, at his home address.[1] The certified mail was returned, marked "Unclaimed, Unable to Forward, Return to Sender." The regular mail was not returned. Respondent failed to file an answer to the complaint.

         On March 6, 2018, the OAE sent a "five-day" letter to respondent, by certified and regular mail, at the same address, informing him that, unless he filed a verified answer to the complaint within five days, the allegations of the complaint would be deemed admitted, the record would be certified to us for the imposition of discipline, and the complaint would be deemed amended to charge a willful violation of RPC 8.1(b). A certified mail receipt was returned, signed by "SThompr," and the United States Postal Service confirmed delivery on March 9, 2018. The regular mail was not returned.

         Respondent failed to file a verified answer to the complaint. Accordingly, on April 3, 2018 the OAE certified the record to us as a default.

         On June 21, 2018, respondent filed a motion to vacate the default in this matter. To prevail on such a motion, respondent must satisfy a two-pronged test. First, he must offer a reasonable explanation for the failure to answer the ethics complaint and, second, he must assert a meritorious defense to the underlying ethics charges.

         Respondent explained that he did not file an answer to the OAE's complaint because he never received a copy of it. Respondent claimed that he listed his house for sale in September 2017, and "[b]etween the process of packing, coupled with essentially living at [my] ill mother's house ... I simply did not see" the OAE mailing containing the complaint. He conceded, however, that his domestic partner had signed for the OAE's certified mailing. Respondent failed to address receipt of the May 31, 2018 certified and regular mailing of our scheduling letter in this matter.

         We conclude that respondent's explanation for his failure to file an answer is not reasonable. The certified mailing of the OAE complaint was signed for by respondent's domestic partner, at his address of record. Our scheduling letter was sent via certified and regular mail to his address of record.

         Accordingly, service of process was proper in this matter, and respondent's explanation regarding receipt of the formal ethics complaint is not reasonable and, thus, does not excuse his failure to file an answer to the complaint.

         We add that, even if respondent had satisfied the first prong of the test, we still would deny his motion to vacate the default. In his motion, respondent asserts that, given his work history and status as a solo practitioner, he has had "little affirmative guidance as to how to administer trust accounts . . . [and] was simply unaware of the 'three-way reconciliation procedure'" and other recordkeeping requirements. As to the commingling allegation, he states that he did not know there was any timing obligation for the removal of legal fees from an attorney trust account.

         By his own admissions, thus, respondent has failed to satisfy the second prong of the test, which requires that he assert a meritorious defense to the underlying ethics charges. Ignorance of the RPCs governing the practice of law in New Jersey does not constitute a legal defense to misconduct. Rather, "lawyers are expected to be fully versed in the ethics rules that regulate their conduct." See In re Berkowitz, 13 ...


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