On Wednesday, March 15, 2023, the Supreme Court of New Jersey reprimanded attorney Michael S. Wittenberg for his non-filing of amended answers to the court in relation to an investigation pending against him. The case is entitled “In the Matter of Michael S. Wittenberg”, and was brought by the Office of Attorney Ethics with case no. 087397.

The charges cited the New Jersey Rules of Professional Conduct 1.15(d) and 8.1(b) which states:

Failure to comply with the recordkeeping requirements of Rule1:21-6.

Failure to cooperate with disciplinary authorities.

The Rules of Professional Conduct can be found here.

In a decision dated August 1, 2022, it was stated that charges were filed against the respondent alleging record-keeping violations. In the process of serving a formal ethics complaint to the respondent, the Office of Attorney Ethics alleged that the respondent’s verified answers were deficient because he had failed to provide a full, candid, and complete disclosure of the facts surrounding the allegations of the complaint. The OAE cautioned that if the respondent fail to file an amended, conforming verified answer, it would file a motion to strike the respondent’s April 9, 2021 answer and submit the matter to the court as a default.

The filing states:

“Consequently, on January 21, 2022, the OAE filed a motion to strike the respondent’s answer to the formal ethics complaint and to bar the respondent from presenting defenses at the disciplinary hearing. In support of its motion, the OAE recounted its efforts, since May 10, 2021, to compel the respondent to file a conforming answer to the ethics complaint, to no avail.”

The filing continues:

“Therefore, the OAE filed a motion to strike the respondent’s non – conforming answer and bar him from offering any defenses. Respondent neither filed written opposition to the OAE’s motion nor filed a conforming answer. Consequently, on February 15, 2022, following the procedure established in Cresci, the hearing panel chair entered an order striking the respondent’s answer and prohibiting him from presenting any defenses at the disciplinary hearing. Accordingly, the OAE certified this matter to us as a default.”

The filing further states:

“As to prong one, the respondent claimed that he has suffered from a history of cardiac problems, which began in 2000. Furthermore, the respondent asserted that, in mid-2017, “just prior” to the OAE’s May 9, 2018, random audit underlying this matter, he was diagnosed with non – Hodgkin’s lymphoma. Respondent claimed that, following his diagnosis, he received chemotherapy, which left him exhausted. The Respondent did not provide details as to when chemotherapy began or whether it had concluded. However, the respondent asserted that from 2018 through 2019, he devoted his limited energy to representing his clients. Additionally, because the “respondent was not accused of misappropriating (nor did he) any monies, he believed that the record-keeping [sic ] violations were minor and were not of an urgent nature.”

The respondent conceded that he “technically” committed recordkeeping violations. However, he maintained that, without his cooperation, the OAE would not have discovered his record-keeping deficiencies. The respondent argued that it will be “counterintuitive” for the OAE to allege that he violated the recordkeeping rules.

The board in response explained that although the respondent filed an answer, he replied to the enumerated paragraphs in a simple manner, stating that he is without sufficient knowledge to either admit or deny the facts.  The board alleged that the respondent offered no information whatsoever that would satisfy the R.1:20-4(e) standard. Moreover, despite the warning of the OAE that he was obligated to file a conforming answer, the respondent took no action. For these reasons, the board decided to impose a reprimand against the respondent. Consistent with the board’s decision, the Supreme Court of New Jersey decided to adopt the conclusion of the former.

The Disposition states:

“It is ORDERED that Michael S. Wittenberg is hereby reprimanded, and it is further ORDERED that respondent shall (1) provide proof within thirty days after the filing date of this Order that he has replenished the funds in his attorney trust account to replace those negligently invaded, (2) complete two recordkeeping courses approved by the Office of Attorney Ethics, with proof of completion to be submitted to the Office of Attorney Ethics within ninety days after the filing date of this Order, and (3) submit monthly reconciliations of his attorney accounts to the Office of Attorney Ethics, on a quarterly basis, for a period of two years, and until the further Order of the Court.”

Mr. Wittenburg practices in Jersey City, New Jersey. He is licensed in New Jersey with license no.  041601985. His info can be found on lawyers.justia.com.

A copy of the original filing can be found here.