Waivable Conflict Not Waived

The New Jersey Supreme Court has censured an attorney.

The Disciplinary Review Board found violations and had proposed a censure

Here, respondent represented Hassan in connection with his efforts to recoup his purported share of the $125,000 deposit for the purchase of the Hardyston property, despite having represented both Hassan and W.C. in connection with the Hardyston real estate transaction and, further, while concurrently representing W.C. in his divorce action. In particular, respondent attempted to recover, on behalf of Hassan, half of the $125,000 real estate deposit, despite W.C., who was also his client, having a competing interest in the funds. Their respective interests in the funds were inherently adverse to each other and created a significant risk that respondent’s representation of each was materially limited by his responsibilities to the other.

Although the conflict of interest involved a real estate transaction, Hassan and W.C. were not buyer and seller in the transaction, which would constitute a non-waivable conflict. See In the Matter of Maria J. Rivero, DRB 14-310 (June 9, 2015) at 25-26 (noting that the interests of the buyer and the seller “are diametrically opposed”), so ordered, 222 N.J. 573 (2015). Thus, to proceed with the concurrent representation of both clients, respondent was required to obtain his clients’ written informed consent which he admittedly failed to do. Accordingly, respondent violated RPC 1.7(a)(1).

False statements

Here, respondent admitted that he intentionally made false statements to the OAE, in violation of RPC 8.1(a) and RPC 8.4(c), by claimed that W.C. and Hassan had told him that they had jointly formed People Consultors. He later admitted that W.C. and Hassan never identified any business entity that they formed together and, further, that he did not know whether W.C. or Hassan had, in fact, ever established a company for their business venture. Respondent also admitted that he did not see or hear the name People Consultors until he received Hassan’s check in February 2016, which was issued from the People Consultors bank account.

Sanction

In our view, standing alone, respondent’s violations of RPC 1.5(b) and RPC 1.7(a) warrant a reprimand. His false statements to the disciplinary authorities, in violation of RPC 8.1(a) and RPC 8.4(c), warrant enhancement of that quantum of discipline. Accordingly, based on the foregoing disciplinary precedent, we conclude that the baseline discipline for the totality of respondent’s misconduct is a censure. To craft the appropriate discipline, we also consider aggravating and mitigating factors.

Aggravation was a prior reprimand; mitigation was candor and cooperation. (Mike Frisch)