The Disciplinary Review Board is seeking a reprimand for a lawyer who admittedly practiced law while on retired status and failed to cooperate with an ethics investigation – at one point cursing out the auditor assigned to her case.
In a unanimous opinion issued on Tuesday, the DRB said Suzanne Engelhardt’s vehement refusal to attend interviews scheduled by the Office of Attorney Ethics in connection with a grievance was a basis for increasing the level of her discipline.
Admitted to practice in 1991, Engelhardt was on retired status from April 26, 2004, to Oct. 6, 2010, but she worked per diem during 2009 and 2010 for an entity known as “I’ve Got You Covered — Associates on the Go!” in Woodbridge, making scores of court appearances and earning about $11,000 in each of those years.
Her boss, William Saxton, filed the ethics grievance once he learned of her status. The OAE notified Engelhardt of the grievance on Sept. 30, 2010. She called the OAE on Oct. 4, 2010, and was told to send a letter detailing whether she had practiced law while retired.
She then paid her 2010 Lawyers’ Fund for Client Protection fee and outstanding assessments for 2008 and 2009, and wrote to OAE auditor Gary Stroz that she was “off the ineligible list” and thus eligible to practice.
But Stroz scheduled an interview for Nov. 15, 2010, since Engelhardt allegedly violated Rule of Professional Conduct 5.5(a)(1) by practicing while ineligible.
Engelhardt informed Stroz on Oct. 25, 2010, that she could not make the interview, that it was unnecessary and that the OAE was “making a mountain out of a molehill.”
Stroz invited her to reschedule, but Engelhardt wrote back on Oct. 26, stating, “if you need to punish me, then punish me, I will accept my punishment willingly and with humility.”
When Stroz called Engelhardt on Nov. 12 about the upcoming interview, she said she would not appear and asked why a meeting was necessary, as she had paid the outstanding fees. Stroz said failure to attend the interview would be deemed an RPC violation.
In what the DRB termed an “expletive-ridden rant,” Engelhardt allegedly claimed he was “f—ing harassing” her.
She did not appear on Nov. 15 and a Dec. 13 date was set. Engelhardt responded to the new date in a letter calling the interview “an abuse of power” and saying the OAE should just accept Saxton’s version of the facts. She did not show up at the Dec. 13 interview.
On March 28, 2011, the OAE charged Engelhardt with violating RPC 5.5(a)(1), and RPC 8.1(b), failing to cooperate with an ethics investigation. It assigned the case to the District VIII Ethics Committee.
During a committee hearing, Engelhardt admitted appearing on behalf of Saxton’s office while retired but denied failing to cooperate, saying she could not attend an OAE interview because she had been living in Massachusetts.
She also testified that she didn’t know she had to take any action when she resumed the practice of law. She said she had wrongly assumed that a certificate of good standing, issued in 2007 when she was getting a real estate license, was sufficient.
The committee found Engelhardt violated RPCs 5.5(a)(1) and 8.1(b) as well as Rule 1:20-3(g)(3), for failing to appear at the two OAE hearings.
It called for an admonition, without citing case law for the sanction.
Last April 23, the OAE made a case for a reprimand, citing In re Hess, 174 N.J. 346 (2002), where a lawyer practiced while ineligible and failed to cooperate, and In re Steiert, 201 N.J. 119 (2010), where a lawyer practiced while on retired status and misrepresented to a third party that he had authorization to settle a case.
Engelhardt argued in a letter brief to the DRB that she did not knowingly practice law while ineligible and that her conduct was not as serious as that in the cited cases.
But the DRB noted that every year of her retirement she was sent Client Protection Fund documents containing an option to change her status to active and pay the assessment. “She chose not to do so,” the DRB said.
Engelhardt’s reliance on the good-standing letter does not support her assertion because she did not produce it, the DRB said.
And her expletive-ridden comments were an aggravating factor and her previously clean record a mitigating one, according to the DRB.
The rant was “a seriously disrespectful act toward the disciplinary system,” it said.
Engelhardt’s refusal to appear for an interview and her rant with Stroz called for a reprimand, the DRB said, noting, “Interviews are an integral part of the OAE’s investigatory process.”
Engelhardt did not respond to a message left for her at Volunteer Lawyers for Justice in Newark, where she is now a staff lawyer.
Charles Toutant is a reporter for the New Jersey Law Journal, a Legal affiliate.