Tempering Justice with Mercy

The New Jersey Supreme Court has censured an attorney, adopting the proposed sanction of the Disciplinary Review Board.

Respondent is an experienced family law attorney, whose practice is focused in Monmouth and Ocean counties. In May 2012, he was involved in an unspecified “conflict” with two of the four Ocean County Family Part judges. Consequently, he could appear only before an unidentified judge and the Honorable Melanie D. Appleby, J.S.C. At the time, respondent was counsel of record in two pending matrimonial cases assigned to Judge Appleby.

On May 3, 2012, Judge Appleby’s former husband, Christopher Donohue, wrote a letter to her, seeking to terminate his support of their son, whose graduation from college was imminent. On May 7, 2012, Judge Appleby’s secretary, who knew respondent through their longtime interaction in the courthouse, contacted him to request that he meet with the judge in her chambers about Donohue’s letter.

The next day, respondent met with Judge Appleby in her chambers, at which time she gave him a copy of Donohue’s May 3, 2012 letter. Respondent replied that he did not want to be placed on the judge’s disqualification list, and, therefore, he would find another attorney to represent her.

Sometime after respondent’s meeting with Judge Appleby, he telephoned Mark Biel, an Atlantic County family law attorney, and asked Biel whether he would represent the judge. Although Biel was non-committal about the representation, at respondent’s request, he sent respondent a piece of his letterhead for respondent to draft an initial letter for Biel, in the event that Biel agreed to represent the judge.

As of June 19, 2012, Biel had had no further communication with respondent, and he had not contacted Judge Appleby to establish an attorney-client relationship. 

Nonetheless

…on June 21, 2012, respondent, through his staff, e-mailed to Judge Appleby, for her review, a letter he had drafted in reply to Donohue’s May 2012 letter. The phrase “BIEL LETTERHEAD” appeared in boldface type at the top of the first page of the five-page letter.

The letter went out after the judge reviewed it. The husband retained attorney Tambasco.

On July 18, 2012, Tambasco telephoned Biel, who told her that he did not represent the judge and, further, he “did not know what she was referencing.” At Biel’s request, Tambasco faxed him a copy of the June 26, 2012 letter, together with a copy of the parties’ consent order, presumably entered in their matrimonial action. It was at this time that Biel first learned that respondent had signed his name, without his authority, to the letter written on Judge Appleby’s behalf.

On August 13, 2012, respondent formally advised Tambasco, in writing, that he “will be representing” Judge Appleby in the Donohue matter. The next day, he advised his adversary in the Kelly matter that his office was in conflict with Judge Appleby. For her part, Judge Appleby waited until September 4, 2012 to advise the assignment judge that she had a conflict with respondent and requested that he be added to her disqualification list.

Sanction

In mitigation, respondent has practiced law, without incident, for more than forty years. As his certification reflects, he is a distinguished member of the family law bar and is clearly an expert in such matters, having been appointed to a number of commissions and committees charged with studying and making recommendations in the field of family law. He has served the Ocean County community as well, in non-legal matters. He has served both the bar and the family court in various capacities, establishing the Ocean County Early Settlement Program, in which he has been an active member, and developing, implementing, and participating in several notable CLE programs.

Although more reflective of a natural consequence of his unethical behavior than a mitigating factor, respondent has suffered professionally as a result of his misconduct. For example, he was removed as the moderator of the annual Family Law Symposium, a position that he had held since 1996. A longstanding speaker for numerous CLE and State and county bar association programs, he has not been asked to participate since his misconduct became public. He is no longer invited to meet with the Director of the AOC, the Chief Justice, or any Superior Court assignment or presiding judges, as he had in the past. Gann Books terminated its contract with him, which called for him to collaborate with a retired family part judge and another attorney on a series of books on the subject of family law.

Finally, respondent is well-respected by his peers, who have bestowed awards upon him for his contributions to the field. Many individuals (115 to be precise), mostly members of the bar, have submitted character letters on his behalf…

Respondent’s misconduct was egregious, but aberrational. Its consequences, for him, were devastating. Although, given the totality of his misconduct, a three-month suspension is justified, the adverse impact that has befallen him calls for tempering justice with mercy.  Accordingly, we determined to impose a censure.

 (Mike Frisch)