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In re Bogard

Supreme Court of New York, First Department

March 21, 2017

In the Matter of Mark D. Bogard (admitted as Mark Daryl Bogard), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Mark D. Bogard, Respondent.

         Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Mark D. Bogard, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on June 23, 2009.

          Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kevin P. Culley, of counsel), for petitioner.

          No appearance for respondent.

          Angela M. Mazzarelli Justice Presiding, Rolando T. Acosta Sallie Manzanet-Daniels Troy K. Webber Ellen Gesmer, Justices.

          Per Curiam

         Respondent Mark D. Bogard was admitted to the practice of law in the State of New York by the Third Judicial Department on June 23, 2009, under the name Mark Daryl Bogard. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

         By motion dated November 21, 2016, the Attorney Grievance Committee (Committee) moves, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13(a) and (b), for an order finding that respondent has been disciplined by a foreign jurisdiction and directing him to demonstrate why discipline should not be imposed in New York for the underlying professional misconduct. The Committee properly served its petition on respondent, pro se, and by way of a December 21, 2016 email, respondent confirmed that he does not intend to submit a response.

         By order filed November 20, 2014, the Supreme Court of New Jersey reprimanded respondent for, inter alia, gross neglect of a foreclosure matter, which resulted in his clients' house being sold at a sheriff's sale. A New Jersey District Ethics Committee (DEC) charged respondent with violating New Jersey Rules of Professional Conduct (RPC) rules 1.1(a) (gross neglect), 1.3 (lack of diligence), 1.4(b) and (c) (failure to communicate), and 5.1(b) and 5.3(a) and (b) (failure to properly supervise). The charges arose from respondent's representation of a husband and wife (the complainants), who retained his law firm (the firm), to represent them in connection with a loan modification and a foreclosure matter.

         In March 2010, the complainants retained the firm to help them obtain a loan modification in hopes of lowering the mortgage payments for their home in New Jersey, which was in arrears. At the DEC hearing, respondent testified that he executed the firm's retainer agreement with the complainants because he was physically present in the firm's New York office when they came in; but he was not specifically assigned to their loan modification, which was handled by the staff in the main office in Florida over whom he had no supervisory authority.

         The complainants' loan modification was not completed for various reasons. The DEC found that the firm appeared to have mishandled the loan modification, but it found no professional misconduct on respondent's part because he had no control over the Florida staff that was handling the matter.

         In July 2012, a final judgment of foreclosure was entered against the complainants. On August 31, 2012, the complainants met with respondent to discuss the loan modification and informed him that a sheriff's sale had been scheduled for September 12, 2012. On or about September 4, 2012, the complainants executed a second retainer agreement with the firm to represent them in the foreclosure matter for which they paid an additional fee of $2, 135.

         Respondent admitted that it was his responsibility to stop the sheriff's sale. However, he took no action on the matter until September 11, 2012, the day before the sale, when he purportedly called the Union County Sheriff's Office and was informed that only the homeowners could apply for an adjournment of the sale, and not even his personal appearance as their attorney would suffice. Respondent admitted that he did not ask to speak to a supervisor or to the Union County Sheriff, nor did he submit anything in writing to the sheriff's office. Respondent did not memorialize this purported telephone conversation. Neither respondent nor anyone from the firm attended the sale because the sheriff's office purportedly told respondent that it would not help.

         Respondent's hearing testimony was contradicted by a representative from the Union County Sheriff's Office who testified that a homeowner's attorney could request an adjournment of a sale by submitting either a retainer agreement or written instructions from the homeowner authorizing the attorney to request an adjournment, and that two-week adjournments were routinely granted. [1]

         Respondent testified that the day prior to the sale, he tried to reach the complainants at three different telephone numbers to no avail. He also sent his client an email informing her that she had to go in person to the sheriff's sale the next day in order to stop it. In his email, respondent stated that by waiting to the last minute to request an adjournment, the client would maximize her time to delay the sale. Notably, the Disciplinary Review Board (DRB) found that the email ...

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