Friday, October 9, 2020
The New Jersey Supreme Court has censured an attorney for a concurrent client conflict of interest.
As described in the report of the Disciplinary Review Board, an attorney had been retained to prosecute a criminal appeal that was later dismissed for failure to file an appellate brief.
The attorney then retained (for a $15,000 fee) the Respondent to attempt to both resuscitate the appeal and cover his exposure
Respondent admitted that he considered both Gonzalez-Rodriguez and [attorney] Suarez-Silverio to be his clients and that, in addition to representing Gonzalez-Rodriguez for the appeal, he represented Suarez-Silverio for possible exposure to malpractice and ethics complaints. Moreover, respondent acknowledged that he owed an undivided loyalty to both Gonzalez-Rodriguez and Suarez-Silverio. Respondent further admitted that he never informed Gonzalez Rodriguez of F&M’s personal representation of Suarez-Silverio and the resulting conflict of interest. Finally, respondent admitted that his actions created an inherent conflict of interest, in violation of RPC 1.7.
He returned the $15,000 while the matter was pending before the District Ethics Committee.
The DEC split on their proposed sanction
A two-member majority of the hearing panel recommended the imposition of a reprimand. The public member filed a dissent, pointing out that respondent is a seasoned attorney of forty-five years, that he failed to disclose the conflict of interest to Gonzalez-Rodriguez, and that he failed immediately to remit the $15,000 when Bar-Nadav requested that he do so. This member voted to suspend respondent for an undisclosed period.
Editor's note: Why is it so often the case that the (majority vote) volunteer lawyers are more lenient than the non-attorney member?
The DRB on sanction
In aggravation, respondent has prior discipline: 1995 and 2009 reprimands, and a 2009 three-month suspension, all for dissimilar misconduct. In mitigation, respondent readily admitted his misconduct in this matter and returned the entire $15,000 retainer to the Rodriguez family. Additionally, respondent’s actual representation of Suarez-Silverio was short-lived, because Gonzalez-Rodriguez quickly terminated F&M’s representation and retained Bar-Nadav to take over his appeal.
Because respondent is a very seasoned attorney and this is not his first brush with the disciplinary system, we determine that a censure is the quantum of discipline necessary to protect the public and preserve confidence in the bar.
Vice-Chair Gallipoli and Member Zmirich voted to impose a one-year suspension.