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In re Berman

Supreme Court of New Jersey

January 23, 2019

In The Matter Of David Charles Berman An Attorney At Law

         District Docket No. XIV-2017-0265E

          Ellin A. Broflsky Chief Counsel

          DECISION

          DISCIPLINARY REVIEW BOARD 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 R. 1:20-4(f). The formal ethics complaint charged respondent with violating RPC 8.1(b) (failure to cooperate) and RPC 8.4(d) (conduct prejudicial to the administration of justice) for his failure to file the required R. 1:20-20 affidavit, following his two-year suspension from the practice of law.

         For the reasons set forth below, we determine to impose a six-month consecutive suspension.

         Respondent was admitted to the New Jersey bar in 1986 and the New York bar in 1990. He was ineligible to practice law from September 24, 2012 to May 3, 2017, based on his failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection (the Fund).

         On October 22, 2012, respondent was declared administratively ineligible to practice law in New Jersey, for failing to comply with R. 1:28A, in respect of the Court's mandatory IOLTA program.

         On May 4, 2017, respondent was suspended for two years for violating RPC 1.1(a) (gross neglect), RPC 1.1(b) (pattern of neglect), RPC 1.3 (lack of diligence), RPC 1.4(b) (failure to keep a client reasonably informed about the status of a matter), RPC 1.4(c) (failure to explain a matter to the extent reasonably necessary to allow the client to make informed decisions), RPC 1.16(a)(1) (failure to withdraw from a representation if that representation would result in the violation of the Rules of Professional Conduct), RPC 1.16(a)(2) (failure to withdraw from a representation when the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client), RPC 3.3(a)(5) (failure to disclose to the tribunal a material fact), RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), RPC 5.5(a)(1) (practicing while ineligible), RPC 8.1(b) (failure to respond to a lawful demand for information from disciplinary authorities), RPC 8.4(a) (knowingly violate the Rules Of Professional Conduct), RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and RPC 8.4(d). That matter, too, was before us by way of default.

         In that case, respondent mishandled six client matters and failed to cooperate with the investigation of the ethics grievances. Additionally, he blatantly disobeyed court rules, committed conduct prejudicial to the administration of justice, and practiced law while ineligible to do so. In the Matter of David Charles Berman, DRB 16-096 (November 18, 2016) (slip op. at 19-20).

         Service of process was proper in this matter. On April 30, 2018, the OAE mailed a copy of the complaint to respondent in accordance with R. 1:20-7(h), by regular and certified mail, return receipt requested, to the address respondent provided to the OAE during an April 11, 2018 telephone call. The certified mail receipt was returned to the OAE indicating delivery on May 2, 2018. The signature on the receipt is illegible. The regular mail was not returned.

         On May 30, 2018, the OAE sent a second letter to respondent, at the same address, informing 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, the record would be certified directly to us for the imposition of discipline pursuant to R. 1:20-4(f) and R. 1:20-6(c)(1), and the complaint would be deemed amended to include a violation of RPC 8.1(b). The certified mail return receipt was returned to the OAE indicating delivery on June 1, 2018. The signature on the receipt is illegible. The regular mail was not returned.

         The time within which respondent may have answered has expired. As of the date of the certification of the record, no answer ...


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