Friday, April 13, 2018

New Jersey: Where Not Showing Up Can Be A Successful Strategy

An attorney who had defaulted on a host of ethics charges arising from his representation of a client  in a bankruptcy matter was nonetheless absolved of the allegations by the New Jersey Disciplinary Review Board

Respondent’s failure to file an answer to the complaint is deemed an admission that the allegations are true and that they provide a sufficient basis for the imposition of discipline. R. 1:20-4(f)(i). Notwithstanding that Rule, each charge in the complaint must be supported by sufficient facts for us to determine that unethical conduct had occurred. Nevertheless, we find that the facts recited in the complaint do not support any of the charges of unethical conduct.

As to the absence of a writing confirming the fee

RPC 1.5(b) requires an attorney who "has not regularly represented the client," to communicate to the client, in writing, the basis or rate of the fee "before or within a reasonable time after commencing the representation." The ethics complaint alleged that respondent did not provide Benjamin with a written fee agreement. Even were we to assume, for the sake of argument, that the "writing" must be a fee agreement, the complaint is silent regarding whether respondent had regularly represented Benjamin. Thus, the charge cannot be sustained.

 As to Rule 1.8(a) charges

Here, the ethics complaint alleges that respondent unilaterally acquired possession of and control over the Mantua property and invited squatters to move in, all without Benjamin’s knowledge or consent. Although this possessory interest certainly would have been "adverse" to Benjamin, it was not a conflict of interest. If true, respondent’s conduct may have constituted a fourth degree crime, be it criminal trespass, N.J.S.A. 2C:18- 3(a), or conspiracy to commit criminal trespass, N.J.S.A. 2C:5-2-- conduct governed by RPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects), not RPC 1.8(a). Moreover, respondent was not representing Benjamin at the time he or his family members occupied her property without her permission. By that point, the bankruptcy proceedings for which he was retained had been concluded. Thus, this charge cannot be sustained.


 The other charges, presumably arising out of respondent’s takeover of the Mantua property, also cannot be sustained. The Fourth Count charged respondent with having violated RPC 8.4(c), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The basis for this charge is respondent’s failure to disclose "the rental value" of the Mantua property. Yet, according to the ethics complaint, respondent did not "rent" the property, but rather simply squatted or allowed others to do so. Thus, this charge, too, cannot be sustained.

Similarly, the allegations of the ethics complaint cannot sustain the RPC 1.7(b) charge, set forth in the Seventh Count. As stated above, RPC 1.7 governs concurrent conflicts of interest. According to the complaint, respondent’s "personal use" of the Mantua property "materially limited" his responsibility to Benjamin, in contravention of the Rule. Although these words describe a conflict, as defined by RPC 1.7(a)(1), the Seventh Count did not charge respondent with that violation. Rather, that count charged respondent with RPC 1.7(b), which lists the circumstances under which an attorney may proceed with a representation involving a concurrent conflict of interest.

The facts alleged do not support the conclusion that, by occupying the Mantua property, respondent materially limited his responsibility to Benjamin. In the context of Benjamin’s lack of knowledge, respondent’s conduct was not a conflict; it was a crime

Oh, just a crime. What a relief.

The Fifth Count of the ethics complaint charged respondent with having violated RPC 8.1(a), which prohibits an attorney from knowingly making a false statement of material fact in connection with a disciplinary matter. According to the complaint, a statement in respondent’s reply to the grievance contradicted his testimony during a deposition. This charge cannot be sustained by the allegations of the complaint because the complaint does not identify the statements made by respondent and the complaint did not include the referenced documents.

Finally, the Eighth Count charged respondent with a violation of RPC 3.1 (prohibiting an attorney from asserting a frivolous claim or defense), based on his failure to file an answer to Benjamin’s civil complaint, after he had obtained an order vacating the default judgment and was granted leave to file the pleading. As with all other counts of the ethics complaint, this count cannot be sustained.

The allegations of the ethics complaint do not explain why respondent never filed an answer to the civil complaint. Even if we were to assume that respondent knew that he had no defense to the allegations of Benjamin’s civil complaint, we cannot divine  whether that was the actual reason for his inaction. Thus, the Eighth Count also cannot be sustained.

To conclude, we determined to dismiss all eight counts of the ethics complaint, because the facts alleged did not support a violation of the RPCs alleged. Consequently, we dismissed, as moot, respondent’s motion to vacate the default.

As is its custom, the Supreme Court agreed. (Mike Frisch)

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