Using Bar Discipline As A Offensive Weapon

A bar discipline case initiated by opposing counsel has led to a reprimand by the New Jersey Supreme Court.

Lockheed Martin was the defendant in a toxic tort claim. 

The bar complaint was filed after the issue of whether plaintiff’s counsel had a written retainer was raised in the client’s deposition. 

The attorney provided a back-dated agreement. There was never any question about the actual fees charged. 

The Disciplinary Review Board tells the story

Respondent asserted that Lockheed’s counsel had filed the ethics grievance for strategic reasons, after a two-year delay, at a time when residents of Moorestown were publicly considering commencing additional lawsuits against Lockheed. She added that it was never her intention to mislead anyone or commit misconduct by producing the Winkler fee agreement, and that, in hindsight, adversaries she should have made clear to the District Court and to her that the Winkler agreement she produced was a “recreated” document. Respondent conceded that it was possible that she had not provided the Winklers with a fee agreement when she commenced their representation, but also emphasized that she had never sought the payment of any attorneys’ fees from the Winklers or Leeses.

In respect of mitigation, respondent and the DEC entered into a joint stipulation of facts, which provided that the Winklers were satisfied with respondent’s representation in the Leese Action and “were not harmed by any act or omission” of respondent; respondent never charged the Winklers a fee for her representation; Jay Winkler “does not recall” signing a fee agreement at his initial meeting with respondent, but agreed ultimately signed accurately set forth the terms that the fee agreement he of the fee arrangement he accepted from the outset; and respondent has no prior discipline.

Misconduct

Here, respondent misrepresented to both the District Court and Lockheed, during litigation, that she was producing the original Winkler fee agreement in support of the plaintiff’s demand for attorneys’ fees. She either was rectifying her failure to provide her client with a fee agreement, as RPC 1.5(b) and (c) require, or was producing a facsimile of the original fee agreement. In either event, she should have acted with candor and transparency to the tribunal and her adversaries. Worse, she enlisted her client, Jay Winkler, in perpetrating the deception. Had she simply been forthcoming with the truth, she might not have faced any ethics charges. By behaving deceitfully, she ensured that the cover-up was worse than the crime. On balance, given her lack of prior discipline and the absence of harm to the client, we determine that a reprimand is sufficient discipline to protect the public and deter such misconduct.

It is not clear to me from the DRB opinion if defense counsel relied on the duty to report

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

It is clear to me that a supposed duty to report here stands on very shaky ground.

I am entirely sympathetic to the claim that this complaint – even if it revealed a technical violation – was an all-to-common abuse of the bar discipline process by corporate defense counsel. (Mike Frisch)