Client Romance, Ex Parte Chat Gets Lawyer a Reprimand

October 17, 2014

After ethics authorities were sharply divided on how to handle the matter, the New Jersey Supreme Court has punished a lawyer who became romantically involved with a client, then quietly withdrew from her case-though the discipline was lightened.

Although results ranging from a six-month suspension to dismissal of the case were urged for Long Valley, N.J., solo Michael Resnick, he ended up with a reprimand for his actions, which included an ex parte meeting with a judge in an effort to be removed from the client's case.

Though not all lawyer-client romances are barred by state ethics strictures, a more serious censure had been recommended by the Disciplinary Review Board, a majority of which deemed the relationship itself to be problematic.

Resnick and the client "were not on an equal playing field and, therefore ... the client was not in a position to freely consent to the relationship," said the majority in a DRB panel that was split three ways.

According to the DRB's opinion, DeAnna Ciccarelli was referred to Resnick in 2008 by the Jersey Battered Women's Shelter in connection with a domestic violence charge against her husband.

Resnick handled that pro bono, but later accepted reduced retainer fees of $5,500 and $1,500 to handle the ensuing divorce and a municipal court matter for Ciccarelli, who was in financial trouble at the time, the opinion stated.

In February 2009, about six months after first taking Ciccarelli as a client, Resnick told her that he had developed romantic feelings for her. She later claimed that her feelings were mixed, but the two ended up sharing an apartment together after Resnick split up with his wife, according to the opinion.

Things soured quickly, however, and Ciccarelli sent an email to Resnick accusing him of initiating an inappropriate relationship, and demanding that he make good on previous promises to represent her for free and return her retainer payments. She also asked that he communicate with her only via email, and said, "I hope we don't need to escalate things to the attorney review board because that would be sad," the opinion said.

Ciccarelli twice emailed Resnick's associate about the purported no-fee arrangement, said that she was "left hanging" because of "a poor choice by Mr. Resnick to mix business with pleasure," and again threatened to file an ethics grievance, the opinion stated.

Ciccarelli did end up filing the grievance at that time.

On March 10, two days after Ciccarelli's first angry email, Resnick met with Superior Court Judge Stephen Hansbury-who was not handling Ciccarelli's case but was presiding judge of Morris County's Family Part at the time-and revealed his relationship with the client and the grievance. Resnick, at Hansbury's direction, delivered to the judge a handwritten letter seeking withdrawal, which was granted, but didn't send Ciccarelli or opposing counsel a copy, though he afterward forwarded Ciccarelli's file to her, according to the opinion.

Ciccarelli later filed a legal malpractice suit against Resnick. She said in a deposition that she "didn't feel that [she] had an option to say, 'No thank you'" to Resnick's advances, and said she felt that his offers to represent at no cost put her in a tough position when he made his romantic feelings known, according to the opinion.

The District XA Ethics Committee (DEC) found that Resnick "simply panicked" when he went to Hansbury for help, and held him in violation of numerous ethics strictures, emphasizing Ciccarelli's vulnerability at that time. A presenter urged a six-month suspension, but the DEC recommended a censure.

Resnick contended that a reprimand, at most, was warranted, and pointed out that Ciccarelli also entered into a personal relationship with her subsequent attorney, Peter Ouda, who was admonished after she filed an ethics grievance against him, too.

But the DRB's five-member majority, in its June 17 opinion, said, "Any relationship, right or wrong, that Ciccarelli had with Ouda has no bearing on respondent's actions."

"As the DEC pointed out, Ciccarelli's conduct is not governed by the RPCs," the majority said. "Respondent's, however, is."

The panel sustained findings that Resnick violated Rules of Professional Conduct 1.7(a)(2), for a conflict of interest, 1.16(d), for failure to protect a client's interests on termination of the representation, 3.5(b), for ex parte communication with a judge, and 8.4(a), a blanket provision that prohibits lawyers from flouting ethics strictures.

The majority relied on previous ethics cases, including In re Liebowitz, 10 N.J. 175 (1985), which held that sexual relationships with clients are not per se unethical, but the relative positions of attorney and client must be examined.

"In Liebowitz, as in this matter, the attorney was in a superior role," the majority said.

The panel called it an "essential factor" that Resnick's representation began with Ciccarelli as an assigned client in the pro bono domestic violence case, noted that their "financial arrangement ... was of great importance" to Ciccarelli, and said Resnick "had to know that she was emotionally vulnerable to his advances."

There also was "no reason" Resnick couldn't have been more up front about withdrawing from the case, the majority said.

The majority recommended a censure. One member, Thomas Hoberman, voted for a reprimand, while another, Anne Singer, voted for the case to be dismissed-and filed her own dissenting opinion.

"This case concerns a love affair gone bad, but apparently a true love affair, in which both parties expressed deep feelings for each other," Singer wrote.

Singer cited an email from Ciccarelli with a much different tenor from the others: It said, "Honey, I am so happy right now," and, "It really feels like a new day and now we can focus on making our life," according to the dissenting opinion.

She called Resnick's meeting with Hansbury "the one thing that has the colorable feel of an ethics violation."

Still, the violation was de minimis, and an admonition, the lowest level of punishment, at most, was warranted, she said.

Singer noted that Liebowitz and the other precedents, as well as Ouda's case, were met with lesser discipline than the censure recommended for Resnick, and emphasized that the relationship began months after he and Ciccarelli met, unlike in the other cases.

Singer called Resnick's position "untenable after her threat and her irrational demand limiting the way in which he was to communicate with her."

In an Oct. 15 order, the Supreme Court took the middle ground and issued a reprimand.

Neither Resnick nor his attorney, Gerard Hanlon of Hanlon, Dunn, Robertson, Schwartz and Webb in Morristown, N.J., returned a call. Neither did Sparta, N.J., solo Colleen Cunningham, who argued on behalf of the DEC.

Ouda didn't respond to an email.