Day In Court

The New Jersey Supreme Court reprimanded an attorney who contended to have agreed to provide limited representation in a tort claim contrary to the explicit language of a retainer agreement.

The report of the Disciplinary Review Board noted

On June 26, 2018, the day before the statute of limitations was set to expire, respondent filed a pro se complaint on DeAraujo’s behalf, which complaint was signed by DeAraujo but filed using respondent’s eCourts attorney login credentials. The first page of the complaint included DeAraujo’s name and signature, as a pro se plaintiff, and did not include respondent’s name or the name of his law firm. Respondent testified that he filed the complaint at DeAraujo’s request solely to preserve the statute of limitations. Respondent further testified that he explained to DeAraujo “what the procedure was;” that “we’re going to do it in your name;” and “when you get another attorney . . . I would help any attorney that he gets.” DeAraujo, on the other hand, testified that he did not understand that respondent expected him to proceed pro se but, instead, understood that respondent would remain his counsel. DeAraujo testified that he had no legal experience and was not familiar with the terms used in legal documents. DeAraujo acknowledged that he paid the $250 filing fee, which was consistent with the Fee Agreement. Respondent admitted that he did not amend the Fee Agreement at this time.

Respondent eventually entered a formal appearance; the case was later dismissed for lack of prosecution.

On September 17, 2018, respondent filed an amended complaint in which he identified himself as DeAraujo’s attorney of record; on this occasion, respondent personally signed the complaint. Respondent explained that he was required to file an amended complaint after the court granted his motion to correct the metadata and, despite his belief that DeAraujo had no claim, respondent testified that he wanted to preserve DeAraujo’s case because it was “the right thing to do.” Respondent, however, failed to serve the defendants or to conduct any discovery.

The DRB concluded

respondent could have declined to undertake the representation based upon his concerns about the weaknesses in the case, but he did not do so. Thereafter, respondent could have entered into an amended fee agreement with DeAraujo or withdrawn from the representation, but he did not do so. Instead, he repeatedly took actions that reaffirmed his role as DeAraujo’s counsel. Specifically, he filed the tort claim notice; filed the pro se complaint using his attorney credentials for eCourts; and filed the amended complaint over his own signature. Concurrent with those actions, however, he wholly failed to advance DeAraujo’s case.

A reprimand rather than admonition was recommended because of the harm caused by the client’s loss of his day in court. (Mike Frisch)