The Benefits Of Non-Participation

The New Jersey Supreme Court has censured an attorney.

The investigation had been triggered by a $31.61 trust account overdraft that led to a demand audit and these findings of the Disciplinary Review Board

Particularly, in 2013, in five personal injury client matters, respondent improperly calculated his fee based on the gross amount of settlement proceeds, as opposed to the net amount, as R. 1:21-7(d) requires.

Notably, the attorney defaulted on the ensuing bar charges.

Misconduct

Had respondent “dishonestly” miscalculated his fee, his conduct may have been found to have been intentional, and subject to a claim of knowing misappropriation. See In re Noonan, 102 N.J. 157, 159-160 (1986) (stating that, under Wilson, knowing misappropriation of client funds “is the mere act of taking your client’s money knowing that you have no authority to do so”). Nonetheless, as Weston-Rivera and Ellenport demonstrate, an attorney violates RPC 1.5(a) through the improper calculation of a legal fee, even when that miscalculation is a simple mistake or a technical violation of the Court Rules.

Here, nothing in the record suggests dishonesty. We note that respondent openly reflected the improper calculation on each settlement sheet. That transparency supports our conclusion that respondent’s miscalculation was the result of his mistaken use of an incorrect method to calculate his fee. Thus, the charge that respondent violated RPC 1.5(a) is proper and supported by clear and convincing evidence.

Finally, respondent violated RPC 8.1(b) by failing to file an answer to the ethics complaint.

Isn’t New Jersey’s form of bar discipline wonderful? (Mike Frisch)