Wednesday, July 21, 2021

Conflicted Advice Can Constitute Legal Malpractice

The New Jersey Supreme Court reversed and remanded an order granting the defendant summary judgment in a legal malpractice claim

In 2006, plaintiff divorced her husband, Monroe Gilbert, who acquired sole possession of the family’s vehicle, which was still registered in plaintiff’s name. In April 2014, Monroe informed plaintiff that he had to report to the Woodland Park Municipal Court (WPMC) regarding many outstanding traffic tickets; the court summonses were issued in plaintiff’s name. On April 15, 2014, plaintiff met Monroe and his attorney, defendant Kenyatta Stewart, at WPMC.

The matter was adjourned, and plaintiff, defendant, and Monroe discussed the best way to resolve the outstanding summonses. Plaintiff did not retain defendant as her attorney or request that he represent her; nor did defendant bill plaintiff or enter into a fee agreement with her. Nevertheless, he indicated to plaintiff that the optimal resolution would be for her to plead guilty to the charges because Monroe was at greater risk of license suspension due to his poor driving record.

While the nature of their discussions was disputed

On May 6, 2014, defendant entered an appearance on behalf of both plaintiff and Monroe. Plaintiff entered a guilty plea. The municipal court agreed not to suspend plaintiff’s driver’s license, and instead imposed fines and community service. Plaintiff, defendant, and the court then discussed the order of community service. Defendant told the court that plaintiff worked for probation, and the court asked, “Can you put yourself in a church?” Plaintiff confirmed that she could. The court observed that plaintiff “[fell] on the sword here,” and subsequently dismissed all charges against Monroe.

The plea led to disciplinary action by her employer, which was the probation department

In August 2014, plaintiff entered into a settlement agreement and, in doing so, admitted to the disciplinary charges of conduct unbecoming, neglect of duty, and other sufficient cause, which included the failure to report involvement in litigation; the remaining charges were dismissed. The settlement agreement also required plaintiff to accept her fifty days of suspension without pay; accept a demotion; release the Judiciary from claims arising out of the matter and her employment; and waive any right to appeal.

Plaintiff filed an ethics complaint against defendant, on whom an admonition was imposed for failing to provide plaintiff with a written fee agreement and for providing representation involving a conflict of interest without written informed consent.

Editor's note: Ho Hum, New Jersey imposes an admonition for a conflict of interest that involved pleading one client guilty to charges that she was innocent of to benefit another client.

This suit ensued.

The court here reversed summary judgment to the defendant

There are facts that support plaintiff’s claim that, had defendant not breached his duty by advising her to accept a guilty plea for offenses she did not commit, there would have been (1) no conviction to report, which would mean (2) no failure to report the conviction, which would mean (3) no inquiry leading to the discovery of prior failures to report, which, in turn, would mean (4) no imposition of disciplinary charges or the other adverse consequences plaintiff asserts as damages. Under the circumstances presented here, a reasonable jury could find that defendant’s breach of his professional duty was a substantial factor in -- and thus a proximate cause of -- plaintiff’s harm.

Oral argument linked here.

After listening to the argument, it appears that causation - whether the advice caused her termination - will be a hotly contested issue.

Above quotes from the court's summary. (Mike Frisch)

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