Practice Pointer: Carefully Read Letters From Disciplinary Counsel

The New Jersey Supreme Court has admonished an attorney as recommended by the Disciplinary Review Board,

The case involved an  attorney who had his first brush with the disciplinary system in 22 years of practice.

The DRB overturned a number of findings of misconduct in the three client complaints but found that he had failed to cooperate with the bar investigations 

As to the charge that respondent violated RPC 8.1(b) by failing to cooperate with ethics authorities in the investigation of these matters, respondent admittedly received a total of ten written requests for information about these three grievances, to which he admittedly did not timely reply. Respondent claimed ignorance of the requirement that he cooperate with ethics authorities. He claimed to have relied on an understanding, drawn from his experience in prior fee arbitration matters, that a check-off box on the fee arbitration form, indicating that a matter had not been referred for an ethics investigation, exonerated him of any ethics improprieties. In fact, section “F” of the fee arbitration poses two questions, each followed by check-off boxes marked “[] Yes [] No”: the first questions whether the fee charged was so excessive as to evidence an intent to overreach; the second questions whether the case involved conduct that raised a substantial question as to the attorney’s honesty, trustworthiness or fitness as a lawyer. Generally, if either of those boxes is checked “Yes,” an explanation is required and the matter is referred to the Office of Attorney Ethics. A “No” as to the second question, however, does not conclusively mean that there was no unethical conduct involved. Whether there has been unethical conduct or not must be decided by district ethics committees, not by fee arbitration committees. A “No” on the fee arbitration determination form does not prevent an ethics committee from investigating and prosecuting attorneys for unethical conduct during the client’s representation.

If respondent truly questioned his need to cooperate with the DEC, he should have reviewed letters from the ethics investigator more carefully…which state that cooperation is required by law. And, if he still thought that no action was required on his part, he should have communicated with the investigator to confirm his understanding. Finally, only DeFelice filed for fee arbitration, a circumstance that renders respondent’s argument inapplicable to the other two matters.

Ignorance is not an excuse; it’s an aggravating factor. (Mike Frisch)