Wednesday, September 13, 2017
A three-year suspension was imposed by the New Jersey Supreme Court on an attorney for misconduct in the conflicted representation of a horse trainer whose license had been suspended where the attorney concurrently represented the owner of the involved horse.
As described by the Disciplinary Review Board, the ex-trainer was the complainant
Grievant was a licensed New Jersey horse trainer. At the time of the DEC hearing, he was fifty-four years old and had worked with horses since he was seventeen years old. Grievant held a trainer’s license from 1985 until his license was suspended. His most recent suspension resulted from his association with an individual who owned a horse, which grievant trained.
Owner was a longtime client of respondent. They met through owner’s acquaintance with respondent’s father, who also was an attorney. Owner and respondent’s father had been partners in the ownership of a horse.
In April 2009, on a race day, owner injected his horse with an illegal substance. Grievant claimed that he was not present in the barn at the time of the injection, but was out "letting his horses run." Owner disputed grievant’s assertion, stating that grievant was in the barn at the time he gave the injection, cleaning a stall about six feet away, and was aware that owner planned to inject the horse.
An investigator from the New Jersey Racing Commission (racing commission) was in the barn at the time and observed owner giving the horse the injection. As a result of the illegal injection, the racing commission charged both owner and grievant with violations of the racing commission’s code of conduct. Respondent represented owner at the racing commission hearing. Grievant appeared pro se. They were each suspended for one year and grievant was fined $2,500
A rather clear conflict between the two.
Owner got his license back and grievant retained the attorney for that same purpose but with reservations
According to grievant, when he first met with respondent, he did not like respondent or his attitude and did not want respondent as his lawyer; "he wanted to "knock [respondent’s] teeth in." Despite grievant’s dislike for respondent, he thought respondent could help him and, in any event, he was not in a position to retain another lawyer because his OAL hearing was fast approaching and he did not have the funds to retain another attorney. In addition, respondent convinced him that he could "get the job done." Thus, grievant testified, he had faith in respondent, even though he did not like him.
The attorney took the case
Respondent remarked further that grievant’s case would bring him notoriety and would reestablish him as the "top horse racing lawyer" in the state.
Needless to say the representation did not go well and led to the bar complaint
The DEC pointed out that grievant is a convicted felon. However, respondent, too, has had an encounter with the law as well as multiple brushes with ethics authorities. This is his fifth matter before us. Respondent received a one-year suspension in 1995 for engaging in criminal conduct. In two of his matters, he was also found guilty of making misrepresentations and engaging in conduct prejudicial to the administration of justice. Most recently, in 2014, he was suspended for three months for, among other things, making misrepresentations to his client concerning comments that a judge had made about the case. Thus, we do not view respondent’s testimony to be particularly credible...
Respondent was charged with many incarnations of the conflict-of-interest rules (counts three, four, and five). From the outset, respondent should have refused to represent grievant. At their initial meeting, grievant threatened to sue owner if his license were not restored and to sue respondent as well. Moreover, respondent admitted that he could not represent grievant without owner’s approval. Respondent clearly recognized that the situation presented a concurrent conflict of interest because he asked grievant to execute a waiver that he would not sue owner, regardless of any claims known or unknown that might later arise, in exchange for $15,000. More importantly, respondent claimed that grievant refused to sign a conflict-of-interest waiver. Notwithstanding grievant’s refusal, respondent undertook his representation.
There was other misconduct
Respondent engaged in a conflict of interest, which caused substantial financial injury to the grievant in that matter. The grievant lost his livelihood because of owner’s conduct, yet recouped only $30,000. Respondent accepted a fee from owner rather than from his client and was, therefore, influenced by him. Respondent then divulged confidential information and failed to explain the matter to the extent reasonably necessary to permit the grievant to make informed decisions about the representation. Respondent also admitted that he failed to provide the grievant with a writing stating the basis or rate of his fee, maintaining that he did not think one was necessary because the grievant was not the one paying him and adding that he did not provide written retainers in any equine matters.
There was prior horse-related misconduct that led to a one year suspension
In that matter, respondent had misrepresented that a racehorse was not encumbered by a bank lien, in order to obtain a loan for a client through a "sale lease back" transaction.