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Editor’s Note: The following article by Bonnie Frost was published are part of New Jersey Family Lawyer, which is distributed to members of the Family Law Section. To learn more about joining a section of the New Jersey State Bar Association, email us at [email protected].

The practice of family law is a hot bed of ethical pitfalls, which can cause numerous problems for a practitioner unless one is alert to them and familiar with the Rules of Professional Conduct (RPCs). The RPCs are the starting point for analyzing any ethical question. They appear in Section I of the New Jersey Court Rules and are also on the Judiciary’s website.¹ In addition, on the Judiciary’s website, one can access all of the ethics opinions issued, including the published cases and the opinions of the Disciplinary Review Board (DRB) the Supreme Court has adopted as its own when imposing discipline.²

To put ethics matters in perspective, there are 36,993 attorneys who actively engage in private practice in New Jersey out of the 98,396 who are registered. Gener­ally, less than 10 percent of matters from which attorney discipline arises are related to family law. By contrast, approximately 36 percent of fee disputes are related to matrimonial matters.

In 2017, the most frequent reason attorneys were disciplined was for dishonesty, fraud, deceit and misrep­resentation (i.e., 26 of the 156 attorneys disciplined). The fifth most frequent reason for discipline in 2017 was for gross neglect/lack of diligence/incompetence (i.e., 14 of the 156 cases). And the ninth most frequent cause of discipline was lack of communication between the attor­ney and his or her client.

Usually, ethics violations do not arise in a vacuum. More often than not, an attorney has violated more than one ethical rule when discipline is imposed. Therefore, if one sees an attorney has been disciplined, and thinks what the attorney has done is a minor infraction of the RPCs, it may be that the attorney has violated other RPCs, which has increased the amount of discipline.

What are Some Ethical Scenarios Family Law Attorneys May Face?

1. An Attorney Must Avoid a Failure to Communicate.

Time and again, attorneys are advised to communi­cate with their clients. If a practitioner has a client who drains him or her and whose file or phone call he or she dreads picking up, a practice tip would be to investigate whether the practitioner can exchange his or her file with another attorney in the firm. This would minimize the client’s ability to complain that his or her file has been neglected. Clients do not understand delay. Failing to communicate does not occur in a vacuum. Usually, it is coupled with lack of diligence. A frequent example of the two violations are instances of a complaint having been dismissed or a motion not being answered and then, compounding the problem, the client is ignored. Remem­ber if a practitioner has made a mistake, most mistakes are curable as long as one owns up to it and takes action.

If an attorney fails to communicate with his or her client, disciplinary sanctions range from an admonition to a suspension depending on an attorney’s disciplinary history and the consequences of the failure to communi­cate with the client.

Communicating is also important if a grievance is filed against a practitioner. Failure to cooperate with disciplinary authorities, in and of itself, can constitute a violation and grounds for temporary suspension.³

In In re Kivler,⁴ the Court held that “failure to coop­erate with the ethics authorities and failure to respond when summoned to appear before this Court are consid­erations that may, when coupled with serious infractions, even call for disbarment.” In Kivler, the attorney’s refusal or failure, without excuse, to appear in compliance with the Court’s order was unacceptable behavior and, as such, it was concluded that it was appropriate to enhance the disciplinary sanction. As a result, Kivler was suspended for three years.

Although most grievances do not result in discipline,⁵ an attorney facing a grievance must cooperate expedi­tiously. A grievance hanging over an attorney’s head is not pleasant, but it must be addressed immediately. More often than not, the grievance is the result of a disgruntled litigant who simply did not like the result in his or her case. In such a circumstance, eventually, such a grievance is dismissed.

2. An Attorney Must Avoid Conflicts of Interest.

Starting at the beginning of a representation of a client, the attorney should ascertain that no conflict exists (i.e., that no one else in the firm has consulted with the adverse party in the matter⁶ and/or that the attorney or firm did not represent both parties previously in a matter where the conflict cannot be waived). It may be that the practitioner can represent a client who was adverse to the attorney or firm previously, as long as the prior representation was not in a ‘substantially related matter’ and the information the attorney received during the consultation was not ‘significantly harmful’ to the former prospective client in the now adverse matter.

Potential knowledge of facts, depending on what they are, cause the conflict. The applicable RPCs are: RPC 1.7, which refers to conflicts in general; RPC 1.8, which refers to conflicts with current clients and RPC 1.9, which refers to duties to former clients.

Each section of the RPCs that prohibits representa­tion because of a conflict may also permit the represen­tation if the affected client gives informed consent in writing and waives the conflict. A few examples where conflicts could occur might be helpful.

• An attorney is permitted to serve as a closing attorney on the sale of the marital home for divorcing parties, as their interest in selling the home is not in conflict and the conflict is waived in writing.⁷
• An attorney is permitted to represent a wife in a divorce action even though he or she had previously handled a purchase of real estate for the husband prior to his marriage.⁸
• Rule 5:3-5(b) expressly prohibits a lawyer from taking a security interest in a client’s property interests to assure payment of the fee in a family action, but only while the litigation is ongoing. After the conclusion of the repre­sentation, the lawyer may take such a security interest as long as the requirements of RPC 1.8(a) are satisfied.
• A loan from a client may pose a conflict, as it can be viewed as either a business transaction or the acquisi­tion of an interest adverse to the client. In In re Frost, the attorney solicited a $79,000 loan from a personal injury client.⁹ The court concluded that the attorney had engaged in a business transaction with his client without appropriate safeguards, in violation of RPC 1.8 (a). The court stated that the attorney had taken advantage of an unsophisticated client whose trust he had gained during his representation.
• The case of v. B. poses an interesting conflict ques­tion and demonstrates what can happen when a law firm inputs, in error, the names of the parties into the firm’s conflict system.¹⁰ In A. v. B., the husband and wife wanted the law firm to draft reciprocal wills for them and signed a ‘waiver of conflict of interest’ for the representation, which provided that confidential infor­mation of one spouse became available to the other. One possible conflict was that such a testamentary transfer permitted the transferee to dispose of property as he or she sees fit, rather than keep it in the family. In A. v. B., the husband had a child of whom the wife was unaware and, thus, the child was an heir or an ‘issue’ in the will. Depending on the language in the will, the estate of the husband could be materially depleted to the detriment of the wife as a result of a support obligation to the undisclosed child. Thus, the interest of the uninformed spouse in formulating a satisfactory financial plan might conflict with the interest of the other spouse in keeping the child’s existence a secret. The superior court ordered the husband to reveal the existence of the child but not the child’s name.
• A lawyer who serves as a third-party neutral such as a mediator must inform the parties that he or she is not representing either party and explain the difference in the roles of a mediator and a lawyer. A lawyer who serves as a mediator in a divorce matter may be engaging in a form of limited representation within the meaning of RPC 1.2 and, thus, the lawyer/mediator must comply with certain requirements of the informed consent rule and disclose the requirements of the rule.¹¹
• An attorney cannot serve as a mediator and guardian ad litem in the same case.¹²

3. An Attorney Should Be Wary and Avoid Personal Relations With a Client.

Personal relationships with litigants can also raise conflicts. In general, friendship with an adverse party or witness does not rise to the level of a conflict unless it impairs one’s ability to exercise professional judgment on behalf of the client.¹³

It should be noted that having a sexual relationship with a client does not automatically preclude representa­tion. However, if a lawyer has become involved sexually with a current client and the current client then has felt pressured to accept the lawyer’s advice whether or not it is in his or her best interest, that can create a conflict. In the Matter of Harry Pinto, a lawyer represented a client who had been the victim of domestic violence.¹⁴ He pres­sured her into having sexual relations with him in order for his representation to continue. He was reprimanded. It is likely the discipline for his behavior would be much more severe in today’s environment.

In the Matter of Michael Resnick, the lawyer, while representing a woman who was a victim of domestic violence, began a consensual, sexual relationship with her.¹⁵ He consulted RPC 1.7 and decided his client was “not vulnerable” and, therefore, a relationship with her would not violate the RPCs. He also represented her in her municipal court matter against her husband, and in her divorce. The litigant testified she felt her attorney was an authority figure and she was in his debt for her legal representation. To add to his inappropriate behavior with this litigant, when she threatened ethics charges against him, he had an ex-parte conversation with the presid­ing family part judge, who permitted him to withdraw without notice to his adversary or the client. The DRB recommended a censure but the court imposed a repri­mand. The lawyer was subsequently disbarred for taking another client’s funds.

Becoming a witness in a client’s lawsuit is also forbid­den in RPC 1.7(b) and 3.7(a). In In re Fornaro, the attorney was intimately involved with a divorcing husband, babysat his child, attended parent conferences for the child, and participated in other activities with the child.¹⁶ She, however, lied to three judges about her relationship with the husband and denied she was the woman the child talked about as “Babe,” thus compromising the husband’s custody suit by covering up her own behavior. She was suspended from the practice of law for three years.

Ordinarily, a reprimand is the measure of discipline for an attorney who engages in a conflict of interest.¹⁷ If the conflict involves “egregious circumstances” or results in “serious economic injury to the clients involved,” disci­pline greater than a reprimand is warranted.¹⁸

4. An Attorney Should Have a Signed Retainer Before He or She Begins Work.

The lack of a signed retainer in and of itself can be an ethical violation.¹⁹ Moreover, Rule 5:5-3(a)(5) requires a signed retainer in all family matters. In fee disputes in civil matters, if there is no signed retainer, the lawyer is permitted fees based on quantum meruit.²⁰

When the time comes for fee arbitration, clients frequently will argue that they do not have to pay any fees because there was no signed retainer. So, while the Court Rules require a signed retainer, when faced with an appeal from a fee arbitration determination that has denied fees to an attorney because of no retainer, the DRB has permitted the award of reasonable fees based on quantum meruit. To not do so would treat family law attorneys differently than civil attorneys.

A frequent problem the DRB sees in fee arbitration appeals is attorneys who do not present bills to their clients every 90 days, as required by court rule. This puts the client in the position of not knowing as the litigation proceeds, what the amount of the bill is (even though the client knows that work has been done) and thus, making an informed decision of whether to continue the legal strategy in effect or change attorneys or represent him or herself in order to manage finances during the litiga­tion. That concern strikes a sympathetic chord because not billing regularly is not consistent with the rule, and it also demonstrates a lack of communication with the client, which could result in an attorney taking advantage of an unsuspecting client.

Another issue that frequently poses dilemmas in fee arbitration determinations is the lack of specificity in the bills.²¹ The burden to prove fees are reasonable is on the attorney, and this burden cannot be met without specific­ity in billing.

5. An Attorney Cannot Overreach on Fees.

Lawyers deserve to be paid for their work. For the ethics system, the question of ‘overreaching’ often involves overbilling, which borders on fraud. In In re Wok, an attorney was disbarred for vastly overstating his services where he claimed in one instance that he worked 33 1/4 hours in one day.²² In In re Day, the attorney was suspended for three months for submitting false billing for depositions he did not attend, which the clients then were billed for and paid.²³

In the Matter of Kenneth Denti, while a partner at two different firms the attorney (Denti) had falsified entries in the respective law firms’ time-keeping systems.²⁴ Denti indicated he had performed legal services for numerous clients who were clients of his prior employer in order to mislead his employers to ensure the continuation of his agreed-upon compensation. While a partner at a subse­quent firm, Denti submitted vouchers for meals with individuals who, he alleged, were either potential clients or potential sources of client referrals when they were for women he was dating. He was disbarred.

In the Matter of Vincenti, the court deemed his billings to be overreaching when he collected $500 from an indi­gent client and then billed her $130,000 in an effort to collect his fees.²⁵

In a more recent case, Segal v. Lynch, the Supreme Court was clear that an attorney cannot charge a client for services to collect his or her fees when he or she is pro se in the collection efforts.²⁶

6. An Attorney Cannot Not Sue His or Her Client for Fees While Still Representing the Client.

While many practitioners may shake their heads at this heading, believing it to represent common knowl­edge, unfortunately some attorneys sue their clients for fees while still representing the client. In In re Simon, the Supreme Court imposed a reprimand on an attorney who was representing a criminal client on a murder charge and whose family stopped paying his bill as trial neared.²⁷ After not being permitted to be relieved as counsel and telling the family members that if he were not paid, he would file suit, he sent a 30-day collection letter to his client. The trial court found this action placed him in an adverse position to his client, in viola­tion of RPC 1.7(a)(2); removed him from the case (exactly what he wanted to have happen) and adjourned the trial. So, while the attorney got out of the case, as he wanted, he also placed himself in ethical hot water.

This issue continues to arise. For example, In the Matter of Logan Terry involved an attorney defending a man who faced over 200 years in prison if found guilty as a result of charges of sexual assault of four minors under the age of 13.²⁸ In the days leading up to trial, he advised his client the he could not “provide an adequate defense” unless his fees were paid. Further, he stated he would not prepare for trial during the weekend prior to trial unless he was first paid. Then, he wrote the client: “HAVE FUN IN PRISON.” This attorney lost his motion to be relieved as counsel but nonetheless took matters into his own hands and engineered his removal right into ethical trou­ble. He violated RPC 1.7(a) by placing his personal interest in obtaining a fee above his client’s interest in receiving the best possible defense. He was censured as a result.

While both these cases are criminal cases, they apply to all attorneys’ behavior. The practice tip is to stay on top of client billing.

7. An Attorney Must Maintain the Professional Code of Ethics in His or Her Personal Life.

A practitioner’s personal conduct can result in disci­pline even though no clients are involved or there is no attorney-client relationship. The court’s ability to regulate an attorney’s conduct extends to a panoply of matters.²⁹ To the public, an attorney is always an attorney, whether he or she acts in a representative capacity or otherwise.³⁰ The behavior of the attorney in In re Hasbrouck is a good example of these policies.³¹ Hasbrouck, an attorney, burglarized doctors’ homes to obtain keys to their offices in order to obtain prescription drugs. She stole cash, jewelry and address books in order to find addresses of other doctors so she could rob them to obtain drugs. As a result of this conduct, she was disbarred.

An attorney who is convicted of a crime will be disci­plined. However, there is no formula for the degree of discipline in those circumstances. An important criterion is whether the behavior “reveals a lack of a good charac­ter and integrity essential to an attorney.”³² The court will deal most harshly with crime that deals with dishonesty, since these “touch upon a central trait of character that members of the Bar must possess.”³³

In the Matter of Jay Bagdis, the lawyer assisted clients in creating convoluted corporate transactions to render it difficult if not impossible for the IRS to trace the flow of his and his clients’ money, rendering the sources and uses of the funds not directly traceable to the individual clients or their Social Security numbers.³⁴ In addition, Bagdis had not filed tax returns for 26 years, since 1990. He was disbarred.³⁵

Likewise, violent behavior is treated seriously by the court. For example, an attorney exhibiting road rage has resulted in discipline. In the Matter of Christopher J. Buckley, the attorney pleaded guilty to simple assault.³⁶ A taxi driver agreed to drive Buckley to Jersey City from New York City for $63. Upon arriving in Jersey City, Buckley informed the driver he had only $9 and asked him to drive him to his apartment so he could obtain additional money. The driver refused, and locked the doors to prevent Buckley from exiting. Buckley kicked at a door and window of the taxi. The driver unlocked the doors. Buckley grabbed the driver’s face and struck him. As a result of the assault, the driver sustained lacerations to his forehead and upper lip; his glasses were broken; he had blood on his shirt; and he reported pain in his nose and mouth. Buckley received a three-month suspension.

In the Matter of John Collins, the attorney, Collins, pleaded guilty to two counts of simple assault and one count of criminal mischief.³⁷ Here, Collins, angered by the actions of another driver, exited his vehicle, retrieved a baseball bat from the trunk, and struck the driver’s vehicle multiple times. He broke the windshield and side mirror and caused the driver and a passenger to be in fear of bodily injury. Although he did not make contact with the victims, he nonetheless terrorized them. He received a three-month suspension.

In the Matter of Steven French, the attorney, French, robbed a bank by handing the cashier a handwritten note to place money in the bag quickly and naturally so every­one would be safe.³⁸ He indicated he had a gun. Here, the court held “some conduct is so utterly incompatible with the standard of honesty and integrity that we require of attorneys that the most severe discipline is justified by the seriousness of the offense alone.” He was disbarred.

In re Costill, the Court reprimanded a deputy attorney general who pled guilty to an accusation of child abuse and neglect after he left his infant children unattended and asleep in a locked car for an hour, after dark, in winter, while he was in a bar.³⁹ In the Matter of Margrabia, the Court suspended the lawyer for three months after he was been found guilty of domestic violence.⁴⁰ This level of discipline has consistently been applied to attorneys who have been guilty of domestic violence since this case.

8. An Attorney Cannot Bargain Away an Ethics Charge Nor Can an Attorney Threaten a Client with Criminal Prosecution to Obtain Payment of the Attorney’s Bill.

In In re Welch, the attorney threatened not to sign the marital settlement agreement or to resolve the case unless the adverse client withdrew an ethics grievance against him and gave him a full release.⁴¹ He was reprimanded.

In the Matter of Ledingham, the attorney was charged with an overreaching fee ($50,000+) and for threaten­ing a criminal action to collect his fee when he tried to collect from the single mother who ran a Sylvan Learning Center.⁴² He wrote the following:

I wish to inform you that the facts of your case indicate to me that you have committed a crime in New Jersey under New Jersey statute 2C:20-8, which is entitled ’Theft of Services.’...If you do not pay the bill in full by..., I will then contact the Bergen County Prosecutor’s Office to report this as a crime, which the facts support...I will also notify the lawyer for Strategies for Success, Inc., which may very well accelerate the note by making the entire balance due and payable due to the Seller’s rights to protect its security under the note payable. That will be a problem for the Landlord, also. In addition, concerning your principal residence, a snowball effect will develop thereby possibly causing an acceleration on the note payable related to the residence, once the bank is notified regarding these facts. In addition, I will notify Sylvan Learning Center of the pending prosecution and they may immediately revoke your license, which will end your income from the enterprise. Moreover, your license to teach in the State of New Jersey may be revoked or suspended upon notification.

He was suspended from the practice of law for three months.

Other ethical violations have involved attorneys whose behavior has involved sexual misconduct with minors. In In re Frye, the attorney was disbarred as he pleaded guilty to endangering the welfare of a child in Vermont and failed, for 15 years, to report his conviction to the New Jersey ethics authorities.⁴³ Thus, he practiced law during that time in New Jersey. Frye had been entrusted with the care of a minor girl, whom he improp­erly touched, and violated his probation over the period of 15 years by failing to attend mandatory outpatient sexual offender therapy. He was disbarred as a result of his improper conduct.

In re Cunningham involved an attorney who was also disbarred.⁴⁴ On three occasions, he communicated on the internet with a person he believed to be a 12-year-old boy, describing, in explicit detail, the sexual acts he wished to engage in with him. Then, when summoned before the Supreme Court, he failed to appear.

In the Kenyon, Legato and Walter cases, the court distinguished between online and personal contact when determining discipline where the intended victims were children ranging in ages from 9-12.⁴⁵ Legato and Kenyon were given indeterminate suspensions, as they had only online or phone contact with their victims, whereas Walter was disbarred because he had personal contact with a nine-year-old with whom “he became too comfort­able...physically.”

9. An Attorney Can Never Take Money From His or Her Trust Account, Which Belongs to His or Her Client.

Family law matters, from time to time, require an attorney to deposit money into a trust account. If an attorney knowingly takes money from his or her trust account, which is not his or hers to take, he or she will be disbarred.⁴⁶ Moreover, the court makes no distinction between trust funds that belong to a client and escrow funds that belong to a third party if they are taken and retained for the benefit of the attorney.⁴⁷

In the Matter of Soriano, the court disagreed with the DRB’s recommendation of disbarment, instead suspend­ing an attorney for two years for turning over $211,000 in mortgage proceeds from a closing to his clients rather than satisfying the mortgage, which was required.⁴⁸ This situation was distinguishable as the attorney did not take the escrow funds and use them for his benefit, but rather disbursed the money to his clients.

Attorneys who steal from their partners will also be disbarred. In the Matter of Steven Siegel, the attorney fabricated disbursement requests by submitting false expenses against a client’s accounts and, thereafter, used the ‘reimbursement’ money to pay his mother-in-law’s mortgage, tennis club fees, dental bills and landscaping costs.⁴⁹ The attorney was disbarred.

The recent case of In re Stephen Landkenau involved a matter of reciprocal discipline from Delaware and posed a different factual scenario.⁵⁰ Landkenau, an associate, admitted he misappropriated law firm funds and that this behavior constituted theft when he accepted cases he knew his firm would not accept and retained the fees for himself, unbeknownst to his firm. The DRB believed that, as an associate, he did not have a fiduciary duty to his firm and thus, should not be disbarred, unlike Siegel who was a partner and had a fiduciary duty to his firm. The Court imposed a two-year suspension.

Even if an attorney ‘borrows’ a client’s money tempo­rarily, intending to return it and then actually does return the money, the attorney is nonetheless very likely to be disbarred. In the Matter of Blumenstyk, the attorney was disbarred.⁵¹ He borrowed money from his trust account to fund a trip to Israel for his son’s bar mitzvah, knowing he was coming into an inheritance and would return it (which he eventually did). The improper borrowing was discovered in a random audit. The Supreme Court said that “restitution does not alter the character of know­ing misappropriation and misuse of client’s funds.”⁵² An attorney’s intent is irrelevant, as the mere taking of the money knowing it is not the attorney’s money to take is enough.⁵³

While one might worry that an inadvertent mix-up in a trust account may result in the most severe disci­pline, that is not the case. Lawyers are not disbarred because they are bad bookkeepers.⁵⁴ Nonetheless, a negligent misappropriation as a result of failing to abide by the recordkeeping rules may result in a reprimand or censure. In the Matter of Kasdan, the attorney was censured because she comingled her personal funds in her trust account with clients’ funds; she performed no monthly reconciliations; there was no running balance kept in the checkbook; the deposit slips were not suffi­ciently detailed and earned attorney’s fees were not timely withdrawn from the trust account.⁵⁵

10. An Attorney Must Not Make a False Statement to a Tribunal, a Client or a Disciplinary Authority.

RPC 3.3 requires that a “lawyer cannot knowingly make a false statement of material fact or law to a tribu­nal.” “The lawyer’s duty is of a double character. He owes his client a duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession.”⁵⁶

In In re Malvone, the attorney, who was a gambling friend of his client and who represented him during his divorce, agreed to hide money his client had given him to defraud his wife and the court.⁵⁷ The attorney was disbarred because he then misappropriated the money he was hiding for his client for his own use.

In re Trustan, the Court imposed a three-month suspension on an attorney who, in a domestic violence trial among other things, submitted to the court a client’s case information statement that falsely asserted the client owned a home.⁵⁸ He also drafted a false certification for the client.

In In re Howard Weber, an attorney was censured where, despite having an unblemished career of nearly 40 years, he circumvented an IRS levy on his attorney business account by intentionally allowing the business account to lie dormant for years and using his trust account for both business and trust matters in violation of RPC 1.15(a) and RPC 8.4(c).⁵⁹

In In re D’Arienzo, the Court suspended the attorney for making multiple misrepresentations to a judge regard­ing the reason for his tardiness and failures to appear at court appearances.⁶⁰

Misrepresentations to a client or a disciplinary authority result in, at a minimum, a reprimand. If misrepresentations have been made to multiple parties, a censure will result.⁶¹

11. An Attorney Must Act Professionally to an Adversary, Even in ‘the Heat of the Moment.’

In the Matter of Joel S. Ziegler, after a contentious matrimonial motion, the attorney angrily said to his adversary and the adverse client, “I’m going to cut you up into bits and pieces; put you [into] a box and send it to India and your parents won’t recognize you.”⁶² At the ethics hearing, Ziegler denied saying he “would cut her up” but stated that his outburst was “a manifestation of [his] frustration [at] her appalling behavior.” He thought his comment might make her “stop lying” and it was intended to “dissuade her from filing anymore false, fraudulent, misleading, scurrilous certifications.” Further, in correspondence to the wife’s attorney, he called the client an “unmitigated liar” and advised her attorney that she should take his comments “very seriously,” as he would file ethics charges against her.

The Ziegler matter is a perfect example of an attorney becoming too emotionally involved with the client. He was found to have violated RPC 8.4(d), as his comments were meant to intimidate an adversary during the litigation. The Disciplinary Review Board found that his comments, in the aggregate, crossed the bounds of “aggressive advocacy;” the comments also violated RPC 3.2; and making such statements in “the heat of the moment” was no excuse. He was reprimanded.

12. An Attorney Must Pay His or Her Obligations.

An attorney should diary or set a reminder to pay his or her annual assessment for the Client Security Fund so he or she does not end up in a situation where he or she is practicing law while ineligible to do so. When an attorney practices law while ineligible, an admonition will be imposed if he or she is unaware of the ineligibility or advances compelling mitigating factors.⁶³

If an attorney has been disciplined, he or she should make sure to pay the administrative costs against him or her. Failure to do so can result in a suspension as well as a civil judgment that would carry a substantial rate of interest.⁶⁴

If a fee arbitration award is against the attorney, he or she must pay what he or she owes within 30 days, otherwise the Office of Attorney Ethics will apply for the attorney to be temporarily suspended from the practice of law. If that occurs, the attorney will also be required to pay sanctions up to $500.⁶⁵ If an attorney fails to pay his or her support obligations or fails to pay his or her student loans, the attorney can be suspended.⁶⁶

The bottom line is that attorneys are expected to meet their financial obligations, and if they do not, they may be disciplined.

13. An Attorney Must Advertise His or Her Services Truthfully.

Advertising has become necessary, and an attorney’s diligence in advertising truthfully is even more important when the internet has put at a litigant’s fingertips a large range of options.

The Committee on Advertising monitors how attor­neys portray themselves, not only in written form but also on the internet. The concern is that attorneys do not raise “unjustified expectations.” RPC 1:7.1(a) and RPC 7.5(b) provide that a lawyer shall not make “false or misleading communications about the lawyer, the lawyer’s services or any matter in which the lawyer has or seeks a professional involvement.”

In In re Ty Hyderally, the Supreme Court addressed the attorney’s website, which improperly displayed the seal of the New Jersey Board on Attorney Certifica­tion.⁶⁷ The Supreme Court dismissed the grievance, even though the seal was improperly displayed, because Hyderally’s cousin was the one who put the seal on the site. The Court admonished all attorneys to frequently review their websites for compliance with the RPCs.

In another case involving Hyderally, the lawyer was suspended for three months for assaulting a person he was dating.⁶⁸ His attorney argued he should not have to take his name off of his firm during his suspension, which is required by Rule 1:20-20, because there were attorneys in his firm who could take over the case load. He argued that taking his name off the firm during the three-month suspension would mean clients would take their cases elsewhere and his employees would lose their jobs. In a ruling that is a first of its kind, the court permitted the firm to continue to operate as Hyderally & Associates as long as all clients were notified in writing of his suspension and a notice of his suspension was put on his website.

In 2012, In the Matter of William DiCiurcio, II, the attorney was reprimanded for violating Attorney Adver­tising Guidelines 2(a) (March 2, 2005) and Opinion No. 35 of the Committee on Attorney Advertising.⁶⁹ DiCiurcio sent out letters soliciting clients who had been charged with traffic violations. Three different solicitation letters referred to the possibility of “ jail” and the possible loss of a driver’s license for a traffic ticket. Even after being notified by the Committee on Advertising to change the written solicitation letters, DiCiurcio did not do so.

In In the Matter of Joseph Rakofsky, Rakofsky misrepre­sented in ads that he worked on criminal cases, which he listed, and had experience in defending people charged with serious crimes.⁷⁰ His letterhead also did not distin­guish that members of his firm were not licensed to prac­tice in New Jersey. He was censured.

In In the Matter of Joseph Mezrahi, an attorney “ghost wrote” pleadings for his clients so they “could go the less encumbering route.”⁷¹ Ghost writing is specifically disap­proved as violating aspects of RPC 3.3 and RPC 8.4.⁷² He was admonished.

It is important to read the recent opinion on the use of the words ‘expertise,’ ‘expert’ and ‘specialize,’ which defines when such words can be used in advertising.⁷³

Conclusion: The Rules of Professional Conduct are Important

The Rules of Professional Conduct give lawyers direc­tion in how to conduct their professional and personal lives. The purpose of the disciplinary system is to protect the public and “preserve the confidence of the public in the integrity and trust worthiness of lawyers in general.”⁷⁴

The maxim ‘better safe than sorry’ should guide attorneys if they have any questions about the implica­tions of a certain course of action. When in doubt, refer to the ethics hotline at 609-815-2924 for assistance as to how to handle prospective conduct.

Endnotes

1. See https://njcourts.gov/attorneys/assets/rules/rpc.pdf.
2. To access those opinions, click on “attorneys” on the home page. On the right drop down menu, click on “opinions” under the heading of “Resources,” then click on “attorney discipline,” also on the right, which will bring one to the Disciplinary Review Board home page where one can identify specific issues. See also http://drblookupportal.judiciary.state.nj.us/ RecentDisciplinedCases.aspx. One can also search by the RPCs, which can bring up opinions that may be helpful if one does not know an attorney’s name.

3. See In re Rennie, 162 N.J. 44 (1999).
4. In re Kivler, 193 N.J. 332, 342-344 (2008).
5. Of the 1318 grievances filed in 2017, only 156 resulted in discipline.
6. But see O Builders & Assoc. v. Yuna Corp., 206 N.J. 109 (2011).
7. N.J. Advisory Comm. on Professional Ethics Op. 100 (Oct. 27, 1966)
8. N.J. Advisory Comm. on Professional Ethics Op. 531 (May 17, 1984).
9. In re Frost, 171 N.J. 308, 321 (2002).
10. A. v. B., 158 N.J. 51, 54 (1999).
11. N.J. Advisory Comm. Op. 699 (Dec. 12, 2005).
12. Isaacson v. Isaacson, 348 N.J. Super. 560, 576-578 (App. Div.), certif. den., 174 N.J. 364 (2002).
13. N.J. Advisory Comm. on Professional Ethics Op. 699 (Dec. 12, 2005).
14. The Matter of Harry Pinto, 168 N.J. 111 (2001); DRB 00-049 (Oct. 19, 2000).
15. In the Matter of Michael Resnick, 219 N.J. 620 (2014); DRB 13-413 (June 17, 2014).
16. In re Fornaro, 175 N.J. 450 (2003), DRB 01-260 (March 26, 2002).
17. In the Matter of Berkowitz, 136 N.J. 134 (1994).
18. In re Guidone, 139 N.J. 272, 277 (1994).
19. RPC 1.5(b).
20. Starkey, Kelly, Blaney & White v. Estate of Nicolayson, 172 N.J. 60 (2002).
21. Mayer v. Mayer, 180 N.J. Super. 164 (App. Div. 1981).
22. In re Wok, 82 N.J. 326 (1980).
23. In re Day, 217 N.J. 280 (2014); DRB 13-244 (Dec. 20, 2013).
24. In the Matter of Kenneth Denti, 204 N.J. 566 (2011); DRB 09-346 (May 12, 2011).
25. In the Matter of Vincenti, 152 N.J. 253 (1998).
26. Segal v. Lynch, 211 N.J. 230, 260-262 (2012).
27. In re Simon, 206 N.J. 306 (2011).
28. In the Matter of Logan Terry, DRB No. 17-417 (June 8, 2018) 2018 WL 5778900.
29. RPC 8.4.
30. In re Gavel, 22 N.J. 248, 265 (1956).
31. In re Hasbrouck, 140 N.J. 162, 167 (1995).
32. In the Matter of Leahey, 118 N.J. 578, 581 (1990).
33. In re Riva, 157 N.J. 34, 39 (1999).
34. In the Matter of Jay Bagdis, 228 N.J. 1 (2017); DRB 16-069 (Dec. 1, 2016).
35. Note that also the failure to intentionally file tax returns and, thus, being guilty of tax fraud usually results in a two-year suspension. See In re Rubin, 227 N.J. 229 (2016).
36. In the Matter of Christopher J. Buckley, 226 N.J. 478 (2016); DRB 15-148 (Dec. 15, 2015).
37. In the Matter of John Collins, 226 N.J. 514 (2016); DRB 15-140 (Dec. 15, 2015).
38. In the Matter of Steven French, 227 N.J. 532 (2017); DRB 16-118, (Nov. 10, 2016).
39. In re Costill, 174 N.J. 563 (2002); DRB 02-195 (Oct. 22, 2002).
40. In the Matter of Margrabia, 150 N.J. 198 (1997); DRB 95-462 (Sept. 11, 1997).
41. In re Welch, 208 N.J. 377 (2011); DRB 11-117 (Oct. 6, 2011).
42. In the Matter of Ledingham, 189 N.J. 298 (2007); DRB 06-235 (Dec. 18, 2006).
43. In re Frye, 217 N.J. 438 (2014).
44. In re Cunningham, 192 N.J. 219 (2007); DRB 06-250 (Dec. 21, 2006).
45. 229 N.J. 173 (2017).
46. In re Wilson, 82 N.J. 451 (1979).
47. In re Hollendonner, 102 N.J. 21 (1985). In this matter, the attorney was suspended for one year, but the Supreme Court gave notice to the bar in that opinion that the future knowing misappropriation of escrow funds would result in disbarment.
48. In the Matter of Soriano, 232 N.J. 457 (2018); DRB 17-179 (Nov. 29, 2017).
49. In the Matter of Steven Siegel, 122 N.J. 162 (1993).
50. In re Stephen Landkenau, 234 N.J. 261 (2018); DRB 16-442 and 17-143 (Dec. 14, 2017).
51. In the Matter of Blumenstyk, 152 N.J. 158 (1997).
52. Id. at 162.
53. In the Matter of Noonan, 102 N.J. 157, 160 (1986).
54. In re Wright, 163 N.J. 133, 136 (2000).
55. In the Matter of Kasdan, 195 N.J. 181 (2008); DRB 07-336 (June 10, 2008).
56. In re Turner, 83 N.J. 536, 538 (1980)(quoting People v. Beattie, 27 N.E. 1096, 1103 (Ill. 1891)). See also Baxt v. Liloia, 155 N.J. 190, 210-211 (1988) for a discussion about an attorney’s conduct during discovery which the court characterized “as an object lesson in unprofessional behavior.”
57. In In re Malvone, 216 N.J. 10 (2013); DRB 12-139 (Oct. 25, 2012).
58. In re Trustan, 202 N.J. 4 (2010); DRB 09-132 (Dec. 3, 2009).
59. In re Howard Weber, 205 N.J. 467 (2011); DRB 10-341 (March 1, 2011).
60. In re D’Arienzo, 158 N.J. 448 (1998); DRB 97-302 (July 27, 1998).
61. In re Otlowski, 220 N.J. 217 (2015); DRB 14-067 (Sept. 17, 2014). See also In re Schroll, DRB 12-204 (Dec. 4, 2012), 213 N.J. 391 (2013), wherein a censure was imposed on an attorney who misrepresented to the District Ethics Committee secretary that the personal injury matter in which he was representing the grievant was pending even though he knew that the complaint had been dismissed more than a year earlier. For the next three years, he continued to mislead the district secretary that the case was still active (and thus the ethics proceeding against him would not proceed) and he misrepresented to the client’s former lawyer that he had obtained a default judgment against the defendants. He was found guilty of gross neglect, lack of diligence, and failure to reply to the client’s numerous attempts to obtain information about her case.
62. In the Matter of Joel S. Ziegler, 199 N.J. 123 (2009); DRB, 08-344 (June 2, 2009).
63. In the Matter of Jonathan A. Goodman, DRB 16-436 (March 22, 2017).
64. R. 1:20-17(e).
65. R. 1:20-15(k).
66. R. 1:20-11A and R. 1:20-11B.
67. In re Ty Hyderally, 208 N.J. 453 (2011).
68. 233 N.J. 595 (2018); DRB 17-228 (Dec. 20, 2017).
69. In the Matter of William DiCiurcio, II, 212 N.J. 110 (2012); DRB 12-025 (Sept. 18, 2012).
70. In the Matter of Joseph Rakofsky, 223 N.J. 349 (2015); DRB 15-02 (Nov. 4, 2015).
71. In the Matter of Joseph Mezrahi, DRB 12-265 (Jan. 25, 2013).
72. See Advisory Committee on Professional Ethics Opinion 713, 191 N.J.L.J. 302 (Jan. 28,2008) on ghost writing.
73. Committee on Advertising Op. 45 (Nov. 8, 2018).
74. In re Wilson, 81 N.J. 456.

Bonnie C. Frost is a partner in the law firm of Einhorn, Harris, Ascher, Barbarito & Frost, P.C., located in Denville.