Friday, May 19, 2017

Misplaced Gratitude

A censure was imposed by the New Jersey Supreme Court for a number of ethics violations described by the Disciplinary Review Board

Specifically, on November 7, 2012, grievant, Shirley Kuzmunich, who resides in California, paid respondent $3,500 to locate and exhume the grave of her son, who had died shortly after birth thirty years earlier. Although respondent had not previously represented her, he did not provide grievant with a writing setting forth the basis or rate of his fee or the scope of the representation.

At the time, Kuzmunich expressed a deep gratitude for respondent’s having taken on her matter. She explained that she "had a tortured soul over this for many years" and that she looked forward to closure. Kuzmunich suspected that medical personnel had lied to her concerning the circumstances of her son’s birth, causing her to question whether her son was still alive. Respondent assured Kuzmunich that he was "on the case" and that the exhumation process should take "a few months," including the time needed to seek a court order for permission to do so. As seen below, after eleven months of representation, however, the exhumation still had not taken place and respondent had not filed any documents with the court seeking such permission.

On November 21, 2012, Kuzmunich sent respondent an e-mail asking whether he had obtained medical records for her son. Although respondent replied in the affirmative, his files did not contain an executed HIPAA form from Kuzmunich or other documents typically required when requesting medical records. On December 21, 2012, respondent informed Kuzmunich that a verified complaint and order to show cause for exhumation would be filed "right after the Court’s Holiday recess." Neither pleading was ever filed.

Six months later, on July 18, 2013, Kuzmunich sent respondent an e-mail inquiring about the cost of disinterment and a DNA test.  The next day, respondent replied that he "[hasn’t] former [sic] up a specific fee, but it should not be very expensive at all" and that "[t]he DNA cost is in the hundreds of dollars." She also asked whether she should contact a registry of adoptees in case her son was alive and looking for her. On August 6, 2013, respondent e-mailed Kuzmunich, stating that he was scheduling the exhumation for the week of September I, 2013; that he was in the process of ensuring that the documents needed by the cemetery were in order; that he would be contacting the cemetery that week to finalize the scheduling; and that, "it can’t hurt to contact the registry" for adoptees. On August 26, 2013, Kuzmunich sent an email to respondent requesting the exact day of the week that the exhumation would take place, because she needed to book a flight from California to New Jersey. The exhumation was never scheduled.

Subsequently, because she had not heard from respondent in some time, and had become frustrated with the progress of the matter, Kuzmunich performed her own investigation. She discovered that early on, a cemetery representative had informed respondent that DNA testing cannot be performed on newborns because their bones do not calcify, an opinion that a local forensic expert contacted by Kuzmunich later confirmed. She also learned that the cost to initiate the exhumation was $1,300. Kuzmunich reminded respondent that he had also told her he could get the cemetery to "do it" for free (presumably, the exhumation). In addition, Kuzmunich learned that the cost of the DNA testing would exceed $1,000, much more than the hundreds of dollars respondent had predicted.

Hence, on October 1, 2013, Kuzmunich terminated respondent’s representation, via e-mail, stating that, "[i]f I knew the truth of these added cost [sic] I would not have told you I would be able to afford this." Kuzmunich closed her e-mail by demanding a full refund of her retainer, and lamenting that her heart was broken and that all hope was lost. In reply, respondent disputed Kuzmunich’s account of events and advised her not to give up on the exhumation of the body because "we are right at the finish line." He added, however, that if she chose to terminate the matter, he would take no further action and would prepare a "final accounting."

In reply to Kuzmunich’s subsequent e-mails, respondent asserted that he would not refund any of the money she had paid to him as a flat fee simply because she had changed her mind about pursuing the matter. He claimed that he had worked on the matter diligently, that he had made no misrepresentations, that he was insulted by her false accusations, and that he would send her file to her the following Monday.

Respondent’s file includes no document establishing that a copy of the file or any documentation was mailed to Kuzmunich. He refunded Kuzmunich her fee only recently, more than three years after she terminated the representation.

The human side of the case

At the time of the representation, Kuzmunich was sixty-one years old. The purpose of the retention was to exhume the remains of her son, who apparently had died in the hospital shortly after being born prematurely about thirty years earlier.

A review of her e-mails to respondent make it clear that Kuzmunich had lived for decades, tortured by doubts as to whether her son actually had died. In reading the record, one gets heart-wrenching insights into the past from her description of the minutes and hours immediately following the delivery of her son. In her mind, after all these years, she still had profound doubts about whether her baby died or whether there was anything wrong with him. So great was her concern that she even asked respondent whether it would be worth her efforts to check an online registry for adopted children in case her son were alive after all these years and looking for her.

Respondent was aware of all of these factors. Kuzmunich looked at him as a hero, thanking him for understanding her need to know the truth, her tortured soul seeking closure, and her plea for help. She thanked him for his kind heart and his understanding. The gratitude, however, was misplaced.

The vulnerability of grievant should have been enough to cause respondent to tread lightly. Instead, he made matters worse by bringing her to the brink of an imaginary resolution and then left her at the edge for more than a year. Ultimately, when Kuzmunich discovered his neglect and dishonesty, he adds insult to injury by lying to her that "the finish line" is so close. All the while, he knows he never even started the race. Moreover, respondent neither provided an explanation for his inaction nor showed remorse.

(Mike Frisch)

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