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In re Dillon

Supreme Court of New Jersey

March 7, 2019

In The Matter Of Timothy Andrew Dillon Attorney At Law

          Argued: November 15, 2018

         District Docket No. XIV-2018-0031E

          Hillary K. Horton appeared on behalf of the Office of Attorney Ethics.

          Respondent appeared pro se.

          DECISION

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

         This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-14(a)(4), based on respondent's reprimand in Delaware for violations of the equivalents of New Jersey RPC 1.1(a) and (b) (gross neglect and pattern of neglect), RPC 1.3 (lack of diligence), RPC 1.15(d) (recordkeeping), RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), RPC 5.3(b) and (c)(2) (failure to supervise nonlawyer staff), RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and RPC 8.4(d) (conduct prejudicial to the administration of justice).

         We determine to impose a reprimand.

         Respondent was admitted to the New Jersey and Delaware bars in 1999, and the Pennsylvania bar in 1997. He has no prior discipline in New Jersey.

         The relevant facts are contained in a November 7, 2017 Report and Recommendations prepared by a panel of the Board on Professional Responsibility of the Supreme Court of the State of Delaware (BPR).

         On March 2, 2017, the Delaware Office of Disciplinary Counsel (ODC) filed a nine-count petition for discipline with the BPR. Thereafter, on March 20, 2017, respondent filed an answer in which he admitted virtually all of the factual allegations and RPC violations contained in the petition.

         On July 13, 2017, a disciplinary hearing was held before a hearing panel of the BPR. At the outset, respondent's counsel noted respondent's admission of misconduct, stating that "[t]his is not a who done it. It's an admitted petition."

         The matter had been referred to Delaware ethics authorities by the Honorable John A. Parkins, Jr., a Delaware Superior Court judge, after he dismissed, without prejudice, four complaints that respondent had filed, for failure to serve the defendants.

         At the Delaware ethics hearing, respondent admitted that Delaware Superior Court Rule 4(j) limits the time for service of a summons and complaint to 120 days. A plaintiff may move for the enlargement of time to effect service or for the appointment of a process server. During the ethics investigation, respondent reviewed his files and found an additional thirteen client matters in which service issues had caused unreasonable delays, but had not resulted in dismissal. Respondent disclosed his findings to Delaware ethics authorities, as discussed below.

         Respondent admitted that, during the relevant time, he was the managing attorney of the Wilmington, Delaware office of McCann & Wall, LLC, a "plaintiffs firm." He described his managing attorney title as largely honorary, because he was not a partner in the firm. Rather, respondent had been hired in 2008 as the sole attorney in the Wilmington office, "to run the Delaware caseload" and replace an attorney "who didn't work out." Since 2008, respondent's practice areas have been plaintiffs work, personal injury, premise liability, and motor vehicle cases. As managing attorney, respondent signed and filed all of the subject personal injury complaints.

         Respondent had assigned to his two paralegals the responsibility of case monitoring to ensure proper service on the defendants in the seventeen cases in question. He conceded that the paralegals whom he supervised had not followed through to confirm service. In turn, respondent had failed to supervise their work to ensure that service was complete.

         As previously noted, due to respondent's failure to locate defendants, the Superior Court dismissed four complaints that he had filed. In Huelsenbeck v. Fermin-Jimenez and Hichez-Sabino, respondent filed the complaint on July 18, 2012, and, on November 12, 2012, successfully moved to expand the time to serve the defendants by an additional sixty days. Thirty-six days after the expiration of the additional time, respondent moved for a second extension. On June 7, 2013, Judge Parkins denied the motion without prejudice, for failure to show "due diligence in attempting to serve defendants and therefore [respondent] has not shown 'good cause' for his failure to do so, the court has no option but to dismiss the case."

         In Skinner v. Fleming, after respondent filed a March 11, 2015 complaint, the summons was returned, on April 16, 2015, not served. Seven months later, on November 18, 2015, the Prothonotary (clerk's office) issued a notice that the case would be dismissed if no further proceedings were undertaken. The following day, November 19, 2015, some 130 days after the 120-day period for service had expired, respondent moved to enlarge the time for service.

         Likewise, in Oliver v. Spitelle, respondent filed an April 15, 2015 complaint, which was returned on May 15, 2015, not served. On November 18, 2015, the Prothonotary issued a similar notice that the case would be dismissed if no proceedings were undertaken. The next day, November 19, 2015 (96 days after the 120-day period for service had expired), respondent moved the Superior Court to enlarge the time for service.

         In a January 8, 2016 letter opinion, Judge Parkins dismissed the Skinner and Oliver cases, without prejudice, finding that "Plaintiff did absolutely nothing to complete service after the original summons was returned non est [not served]. Months went by and the 120 day deadline came and went without any attempt to locate and serve the defendant."

         In Ricketts v. Brown and GEICO, respondent filed a complaint on April 21, 2015, the summons for which was returned on June 1, 2015 not served, as to defendant Brown. Geico was properly served. On August 25, 2015 (6 days after the 120-period for service had expired), respondent successfully moved to enlarge the time for service by another 120 days. Thereafter, on April 24, 2016 (95 days after the additional 120-day service period had expired), respondent moved to appoint a special process server. On June 3, 2016, Judge Parkins denied that motion, and dismissed the case, without prejudice, for respondent's failure to timely serve defendant Brown.

         In the thirteen additional matters, too, respondent had filed complaints whose summonses were then returned, not served. Thereafter, he filed untimely motions for the enlargement of time to serve the defendants. The time past the 120-day service deadline ranged from as few as ten days to as many as 106 days, with an average lateness of forty-six days.

         According to respondent, he managed to refile the four dismissed complaints under the "Delaware Saving Statute." Most of the thirteen additional matters resulted in settlements. None of those clients was harmed beyond the delay in having their matters reach the settlement stage. Respondent conceded, however, that his inaction in these matters had wasted judicial resources.

         In respect of recordkeeping violations, respondent admitted that, as the managing attorney of McCann & Wall's Wilmington office, he had the primary responsibility to maintain the attorney books and records of the Wilmington law office. Those records, including the firm's Delaware attorney escrow and operating account records, were maintained, apparently by others, in the law firm's Philadelphia office. Respondent had mistakenly assumed ...


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