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In re Fox

Supreme Court of New Jersey

January 28, 2019

In The Matter Of Daniel James Fox An Attorney At Law

         District Docket No. XIV-2017-0433E

          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 R: 1:20-4(f). The formal ethics complaint charged respondent with failure to cooperate with the OAE (RPC 8.1(b)) in its investigation of a grievance. For the reasons set forth below, we determine that respondent violated the Rule and impose a censure on him.

         Respondent was admitted to the New Jersey bar in 1986 and to the New York bar in 1987. At the relevant times, he maintained an office for the practice of law in Orange.

         On February 1, 2010, after respondent pleaded guilty to one count of making a false, fictitious, and fraudulent statement to the Department of Housing and Urban Development, in violation of 18 U.S.C. §§ 1001 and 2, he was temporarily suspended, pending the final resolution of ethics proceedings against him. In re Fox, 201 N.J. 158 (2010). Subsequently, on April 23, 2015, the Court imposed a one-year suspension on respondent, based on his federal criminal conviction. In re Fox. 221 N.J. 263 (2015). The suspension was retroactive to February 1, 2010, the effective date of respondent's temporary suspension. Ibid. Respondent remains suspended.

         On June 7, 2012, respondent was censured, in a default matter, for failure to cooperate with disciplinary authorities and conduct prejudicial to the administration of justice. In re Fox, 210 N.J. 255 (2012). Specifically, he had failed to file an affidavit of compliance with R. 1:20-20 after the 2010 temporary suspension, which remained in effect. Ibid.

         Service of process was proper. On June 28, 2018, the OAE sent a copy of an amended formal ethics complaint to respondent's home address, by regular and certified mail, return receipt requested.[1] The letter sent by regular mail was not returned.

         There is no proof that the United States Postal Service (USPS) attempted to deliver the certified letter. As of August 9, 2018, the date of the certification of the record, the most recent entry on the USPS tracking system stated that, as of July 3, 2018, the item was "currently in transit to the next facility." As of the date of this decision, the USPS tracking system contained no further update.

         That the USPS may not have even attempted to deliver the certified letter has no bearing on whether the OAE effected service of the amended complaint. Service was effected on mailing of the letter by regular mail, which was not returned to the OAE. R. 1:5-4(b).[2]

         On July 25, 2018, the OAE sent another letter to respondent, at the same address, by regular mail. The letter informed respondent that, if he failed to file an answer within five days, the allegations of the amended complaint would be deemed admitted, the record would be certified directly to us for the imposition of a sanction, and the amended complaint would be deemed amended to include a charge of a violation of RPC 8.1(b).

         The certification of the record does not state whether the letter sent by regular mail was returned. Because the letter was sent to the address listed in the records of the New Jersey Lawyers' Fund for Client Protection, service was complete on mailing.

         As of August 9, 2018, respondent had not filed an answer to the complaint, and the time within which he was required to do so had expired. Accordingly, ...


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