Board of Overseers of the Bar v. Jacob Apuzzo, Esq.

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Docket No.: GCF# 13-050

Issued by: Grievance Commission

Date: September 30, 2013

Respondent: Jacob Apuzzo, Esq.

Bar Number: 002635

Order: Reprimand

Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority


FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1

On September 26, 2013 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the respondent, Jacob Apuzzo. This disciplinary proceeding was commenced by a petition pursuant to M. Bar. R. 7(1)(e) filed by the Board of Overseers of the Bar on May 21 , 2003.

The Board was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Apuzzo did not appear at the hearing, nor did he respond to telephone messages. The Board Clerk received no message from him that he was delayed or prevented from attending. The hearing was conducted in his absence. The panel received a formal proffer from Assistant Bar Counsel in the presence of the witness, Susan Adams, Maine Board of Overseers Registration/CLE Coordinator, who was duly noticed as a witness ten days before the hearing. Pre-marked Board Exhibits 1 through 9, also noticed to Attorney Apuzzo ten days before the hearing were offered by Assistant Bar Counsel and admitted into evidence.

Petition

The disciplinary petition charges violations of Maine Bar Rule 6(a) for failure to complete CLE requirements and to register as an attorney in a timely fashion in 2012, of Maine Bar Rule 7.3(i)(2) for failure to file a notice and affidavit with the Board of Overseers of the Bar following his administrative suspension, and of Maine Rule of Professional Conduct 8.1(b) for failure to respond to Bar Counsel's letters of February l and February 27, 2013 .

Findings

Jacob Apuzzo was, until the imposition of an administrative suspension by the Board, an attorney admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. On October 22, 2012, Attorney Apuzzo was administratively suspended by the Board due to his failure to fife his annual registration statement, pay the required fee and complete the proper credit hours of continuing legal education as required by Maine Bar Rules 6(a)(1), 10(a)(1) and 12(a)(1), respectively. He also did not thereafter file the affidavit certifying his compliance with the suspension notification requirements of Maine Bar Rule 7.3(i)(2)(A) and (B).

On November 29, 2012, Bar Counsel notified Attorney Apuzzo by certified mail of the consequence of his failure to file the required affidavit. The letter was sent to the only address provided by Attorney Apuzzo, was returned as “unc1aimed” on December 26, 2012.

Bar Counsel filed a sua sponte grievance complaint with the Board of Overseers on January 29, 2013, and requested by letter dated February 1, 2013 that Attorney Apuzzo respond to the grievance in writing by February 22, 2013. No response was received. Assistant Bar Counsel- sent a follow-up letter dated February 21 , 2013 voluntarily extending the rime for response to March 29. None was received.

The petition before the panel was sent for service in hand to Attorney Apuzzo. Contact by the York County Sheriff’s Office resulted in the first communication from him received by the Board.

Attorney Apuzzo’s “To all whom it may concern” letter dated June 11, 2013 averred that he provided written notice to the Board on or before August 31, 2012 of his withdrawal from Maine practice. It further stated that he provided the affidavit required by Maine Bar Rule 7.3(i)(2) with the notice. "On the assumption that Bar counsel has represented that the notice and affidavit were not received," he enclosed a "replacement affidavit." setting forth the required information. The "replacement affidavit" is dated June 5, 2013 and bears the signature of Attorney Apuzzo. The jurat states that it was signed before Robert Mongue, Esq., although no date for Attorney Mongue’s signature appears.

Assistant Bar Counsel’s proffer represented that the Board received no notice or affidavit other than the June 11, 2013 letter enclosing the June 5, 2013 replacement affidavit. In his letter dated June 29, 2013 to Assistant Bar counsel Kelley appearing on the record as part of his answer, Attorney Apuzzo urges us to find that no violation of any Rule occurred because, " [While] I can say with absolute certainty that the notice was sent[,] [t]he Board of Overseers’ staff can not say with absolute certainty that it was not received."

Attorney Apuzzo invites us to find that he satisfied the timely filing requirement of Maine Bar Rule 7.3(i)(12)(B) by mailing the notice and affidavit "on or before August 31, 2012." We decline to do so. There is no principled reason to depart from the rule that “filing” means “receipt” by the entity/agency where the filing is required to occur.

Attorney Apuzzo may be conflating his filing obligations with the common law "mailbox rule" which permits the presumption that physical delivery of a document occurred in the ordinary time after proper mailing. See, generally, Maine Medical Center v. United States, 675 F.3d 110 (1st Cir. 2012) (tax appeal denied where notice not timely sent). Judge Stahl observed that, at a minimum, the party asserting receipt or a mailed document must offer testimony regarding actual mailing and some additional corroborating evidence. Accord, Laird v. Norton Healthcare, Inc., 442 Fed.Appx 194 (6th Cir. 2011). Attorney Apuzzo’s submissions to the Board offered nothing beyond the bald assertion that he sent the required notice and affidavit. Even if the mailbox rule were to apply (which it does not), it is not invoked by the facts of this case.

Attorney Apuzzo's June 11, 2013 letter also said, “Since 8/31/2012 I have been absent from my current mailing address for periods of time” without any further elaboration. (Attorney Apuzzo's current mailing address in Kennebunk shown on his June 11 letter is the same as was used on all letters sent by Bar Counsel.) This is scant justification for the Respondent’s complete silence between September 18, 2012 and June 11, 2013.

Conclusion and Sanction

Assistant Bar Counsel asks that the panel issue a public reprimand. Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge their professional responsibilities properly. Among the factors to be considered are: the duties violated, the actual or potential injury caused by the lawyer’s misconduct, the lawyer’s mental state, and the existence of any aggravating or mitigating circumstances. See, ABA Standards for Imposing Lawyer Sanctions, 1991 {ABA Standards). See also Maine Bar Rule 7.1(e)(3)(C).

The first factor to be considered is to determine what duties have been breached. Attorney Apuzzo failed to complete the annual registration requirements in 2012 for which he was administratively suspended, he failed to file the required notice and affidavit, and he failed to respond to Bar Counsel's February correspondence. We believe that the first two failures caused minor injury to the legal system, especially in light of his subsequent (albeit six-plus months tardy) submission of the required notice and affidavit to the Board. The failure to respond to Bar Counsel caused moderate injury to the legal system. There were repeated but futile efforts to elicit some response from Attorney Apuzzo up until his letter of June 11, 2013, including the engagement of the York County Sheriff’s Office (at additional cost to the Board). Professional responsibilities include responsibilities to the requirements of the profession. Ignoring requests and stern warnings from Bar Counsel evidences an attitude that disrespects both the legal system and the legal profession.

Neither of Attorney Apuzzo's responses expressed regret or offered any explanation for his failures, or asserted his mental or emotional commitment to the profession.

Attorney Apuzzo's submission of the “replacement affidavit” in June 2013 could be considered a mitigating factor but for his concomitant failure to pay the related late fees in connection with its filing. His unexplained failure to appear before the disciplinary hearing, as well as the brusque and combative tone of his June 11 and June 29 letters are aggravating factors.

The panel concludes that a public reprimand is the appropriate sanction for these violations of Bar Rules, which is herebv issued to Attorney Jacob Apuzzo.


Peter C. Fessenden, Esq. Acting Chair

Martica S. Douglas, Esq.

Michael Knowles, Lay Member