In re McCartney
| Decision Date | 27 November 2018 |
| Docket Number | Docket No. DRB 18-177 |
| Parties | In The Matter Of Daniel W. McCartney, Jr. An Attorney At Law |
| Court | New Jersey Supreme Court |
Disciplinary Review Board
Hillary K. Horton appeared on behalf of the Office of Attorney Ethics.
Respondent did not appear, despite proper service.
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, pursuant to R. 1:20-14(a), filed by the Office of Attorney Ethics (OAE). The motion was based on respondent's unconditional resignation from the Pennsylvania bar and subsequent August 4, 2017 disbarment.1 On September 26, 2017, he was disbarred by consent in the United States District Court for the Eastern District of Pennsylvania.
On July 24, 2017, respondent submitted his unconditional resignation from the Pennsylvania bar, pursuant to Pa.R.D.E. 215 (Enforcement Rules), for multiple violations equivalent to New Jersey RPC 1.1(a) (gross neglect), RPC 1.2(a) (), RPC 1.3 (lack of diligence), RPC 1.4(b) (), RPC 1.4(c) (), RPC 1.5(a) (unreasonable fee), RPC 1.15(a) (), RPC 1.15(c) (); RPC 1.15(d) (recordkeeping violations); RPC 1.16(d) (), RPC 3.3(a)(1) (), RPC 3.4(a) (); RPC 5.5(a) (), RPC 8.4(b) (), RPC 8.4(c) (), and RPC 8.4(d) ().
Although the OAE recommends a one-year suspension, for the reasons expressed below, we determine that a two-year suspension is warranted.
Respondent was admitted to the New Jersey and Pennsylvania bars in 1995. At the relevant time, he maintained a law practice in Norristown, Pennsylvania. He has been administratively ineligible to practice law in New Jersey since August 24, 2015, for failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection. He has no history of discipline in New Jersey.
Respondent's resignation from the Pennsylvania bar acknowledged his receipt of multiple letters from the Pennsylvania Office of Disciplinary Counsel (PODC) requesting a statement of his position in pending complaints and investigations relating to his misconduct. Respondent acknowledged that the material facts contained in the PODC letters were true and that hesubmitted his resignation from the bar because he could not successfully defend himself against the charges of professional misconduct set forth in those letters, Exhibits A through J, appended to his resignation. The facts set forth in these exhibits follow.
On August 31, 2015, Irene Wei retained respondent to represent her in a collection matter, for which she paid him a $2,000 retainer. On September 1, 2015, respondent filed an appeal from an arbitration award.
On February 10, 2016, following the issuance of a September 3, 2015 case management order and a January 29, 2016 settlement conference, respondent sent an e-mail request to move the trial from "March" to "May." The following day, opposing counsel objected to respondent's request.
On February 13, 2016, respondent e-mailed to Wei a copy of a motion for extraordinary relief, which requested a continuance of the trial to May 2016. Respondent represented to Wei that he had filed this motion on her behalf. The motion, however, was neither "accepted" nor docketed in the collection matter.
On February 29, 2016, opposing counsel informed respondent by e-mail that he had not yet received notice of respondent's filing for extraordinaryrelief and, that when he checked with the court, he was informed "that the motion was not accepted as filed." He, therefore, understood that the court was not considering the motion. In fact, the court's March 1, 2016 e-mail to the parties indicated that the motion was neither accepted nor under consideration, and the case could be called for trial at any time.
Respondent never took corrective measures after the court notified him that the motion was not accepted or under consideration. He also failed to reply to Wei's requests for information about the re-scheduling of the trial. He then failed to appear for the March 8, 2016 trial. As a result, the judge vacated the appeal and reinstated the arbitration award in the amount of $24,796.56, together with interest. Thereafter, opposing counsel filed a "Praecipe for Entry of Final Judgment against Defendants." Respondent failed to inform Wei of any of the above developments. In May 2016, the court informed Wei that her appeal had been dismissed due to her failure to appear at the trial. Thereafter, respondent failed to reply to Wei's telephone calls.
The PODC letter alleged violations of RPC 1.1(a), RPC 1.2(a), RPC 1.3, RPC 1.4(b), and RPC 1.4(c).
On July 1, 2016, Joei Kabatt retained respondent to file a Chapter 7 bankruptcy petition, for which she paid him a $1,550 retainer. According to the letter, the fee and costs, paid in advance, belonged to Kabatt. Respondent should have deposited the fee into his trust account, and should have withdrawn fees and expenses only when earned or incurred.
Kabatt wanted the petition filed quickly because she was concerned that Wells Fargo would repossess her car. On July 15, 2016, Wells Fargo did so.
After July 1, 2016, Kabatt made numerous e-mail and telephone requests to respondent for an update on the status of her case. On July 19, 2016, Kabatt hand-delivered a letter to respondent's office, expressing her concern that respondent had not yet filed her bankruptcy petition and requesting that he immediately contact her. In an August 15, 2016 letter to respondent, Kabatt detailed her unsuccessful efforts to communicate with him and requested that he provide her with a written status update on his efforts and an accounting of her retainer.
Notwithstanding respondent's receipt of both of Kabatt's letters, he neither communicated with her after July 1, 2016, nor filed the petition.
The PODC letter alleged violations of RPC 1.1(a), RPC 1.2(a), RPC 1.3, RPC 1.4(b), RPC 1.4(c), and RPC 1.15(a).
Respondent represented Peggy Hill in a Chapter 13 bankruptcy matter and in two civil litigation matters. Over the course of several months, Hill tried to communicate with respondent, including sending him two letters, in an attempt to ascertain the status of her matters. Respondent failed to reply to Hill.
The PODC letter alleged violations of RPC 1.2(a), RPC 1.4(b), and RPC 1.4(c).
In June 2013, Mark Bauberger retained respondent to file a Chapter 7 bankruptcy petition, for which he paid a $1,500 fee. Respondent informed Bauberger that he would delay filing the petition until Bauberger's criminal case was resolved, which occurred in May 2016. When Bauberger met with respondent in June 2016, respondent assured Bauberger that he would file the petition electronically, "in the near future."
Subsequently, on numerous occasions, Bauberger asked respondent for the file number for his bankruptcy matter. In a November 2, 2016 letter, Bauberger complained to respondent about his inattention and lack of response.
In a November 11, 2016 conversation "outside" of respondent's office, respondent represented to Bauberger that his office had filed the bankruptcy petition and that he would call Bauberger later that day. Respondent did not call him.
On November 14, 2016, when the two again spoke "outside" of respondent's office, respondent instructed Bauberger to telephone him later that day and represented that he would provide the file number at that time. When Bauberger called, respondent did not answer his phone.
On November 21, 2016, respondent sent a text message to Bauberger promising to send the case number for his bankruptcy matter, but, as of December 7, 2016, he had not provided Bauberger with a file number or any documentation in connection with the bankruptcy matter. Respondent never filed a petition on Bauberger's behalf.
The PODC letter alleged violations of RPC 1.1(a), RPC 1.2(a), RPC 1.3, RPC 1.4(b), RPC 1.4(c), RPC 1.5(a) and RPC 8.4(c).
In October 2016, Amy and John Feldmann retained respondent to file a Chapter 13 bankruptcy petition, for which they paid him a $2,315 retainer, bycheck number 1203. The retainer represented an advanced fee payment, "belonging to Mrs. Feldmann and constituted Rule 1.15 funds."
On November 10, 2016, respondent negotiated the check. The PODC letter "averred" that respondent did not deposit the check into a trust account "to be withdrawn" as his fee was earned and that he, therefore, converted Amy Feldmann's retainer.
In a December 5, 2016 e-mail to John Feldmann, respondent apologized for his delay in replying, and blamed it on both an illness and a trial that was to "wrap up" that week.2 He maintained that he would provide "everything" to the Feldmanns within a day or so for their review. Respondent made a false representation to John Feldmann that he had been on trial.
Thereafter, respondent did not reply to John Feldmann's December 12, 2016 e-mail...
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