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In re Lindner

Supreme Court of New Jersey

January 30, 2019

In The Matter Of Michael David Lindner, Jr. An Attorney At Law

         District Docket No. XIV-2017-0404E


         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was previously before us at our October 18, 2018 session. At that time, we considered respondent's October 16, 2018 letter as a request for additional time to file a motion to vacate the default, and granted the request. Thereafter, on November 2, 2018, respondent filed a motion to vacate the default.

         The complaint charged respondent with violations of RPC 5.5(a)(1) (unauthorized practice of law - failure to maintain liability insurance while practicing as a limited liability company), RPC 8.1(a) (false statement of material fact in connection with a disciplinary matter), RPC 8.1(b) (failure to comply with a lawful demand for information from a disciplinary authority), RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and RPC 8.4(d) (conduct prejudicial to the administration of justice). For the reasons expressed below, we determine to deny respondent's motion and impose an admonition.

         Respondent was admitted to the New Jersey and Pennsylvania bars in 1995. He maintains a law office in Pitman, New Jersey. He has no history of discipline.

         The complaint alleged that respondent violated RPC 5.5(a) by failing to maintain required liability insurance, when practicing as a limited liability corporation. In 2016 and 2017, two attorneys, Philip Faccenda, Esq. and Benjamin Folkman, Esq., requested from the Clerk of the Supreme Court of New Jersey copies of respondent's certificates of insurance, because the attorneys were investigating potential claims for respondent's professional negligence.

         In June 2016 and May 2017, the Clerk's office requested from respondent proof of his mandatory insurance coverage within fourteen days. Both letters notified respondent that, if he failed to comply, the Clerk would notify the Office of Attorney Ethics (OAE) of his non-compliance. Because respondent failed to reply, on June 29, 2017, the Clerk referred the matter to the OAE. Thereafter, on July 12, 2017, respondent submitted a reply to the Clerk.

         On July 19, 2017, the OAE requested a written reply to the Clerk's referral. By letter dated July 24, 2017, respondent denied knowledge of the two attorneys' requests for copies of his certificates of malpractice insurance, but admitted that he failed to maintain the insurance required by R.1:21-1. Respondent's letter added that, for the most part, he had closed his law office due to severe financial problems and that he had been working full-time as an insurance agent. He practiced law only two-to-three hours per month.

         During a September 2017 OAE demand interview, respondent acknowledged receipt of the Clerk's letters and of the letters from the two attorneys seeking copies of his insurance certificates, and admitted that his earlier statements to the OAE that he had not received the letters was not accurate.

         The complaint, thus, alleged that respondent violated RPC 5.5(a)(1) by failing to maintain the mandatory liability insurance; RPC 8.1(b) and RPC 8.4(d) by failing to reply to lawful demands for information from the Supreme Court, a disciplinary authority; and RPC 8.1(a) and RPC 8.4(c) by misrepresenting facts to the OAE, in a written statement, when he denied having received letters from the two attorneys.

         By letter-motion dated November 2, 2018, respondent maintained that he had not filed an answer to the complaint because the main allegation (a violation of RPC 5.5(a)(1)) was true. He was prepared to accept the sanction that came with a default judgment on that issue, and had previously provided explanations for his failure to maintain the insurance in two letters and at the OAE demand interview.

         Respondent asserted that he had not noticed the additional charges against him until the day before our October 18, 2018 session, when he "re-reviewed the complaint." He denied that he had failed to reply to a demand for information from the Court or that he had made misrepresentations to the OAE.

         Respondent admitted that his reasons for failing to file an answer were "not great," but in the interests of justice, requested that we vacate the default; accept his answer to the complaint, which was attached to his motion; and rule on the matter considering the additional information he provided.

         In respect of the substance of the charges, respondent conceded that he received a letter from the Court Clerk in May 2017, but asserted that, shortly thereafter, he underwent significant medical treatment that had him "out of work" until mid-July. He suffered from medical issues - "debilitating headaches" leading him to believe that he was having a stroke or "some type of bleed," causing two hospital visits, visits to urgent care facilities, family doctors, and multiple specialists; various treatments; and a referral to the headache treatment center at Jefferson Hospital, which led to further testing and medications. Respondent opined that his medical problems likely were caused by stress due to his financial pressures. His medical issues prevented him from working for a significant time. When ...

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