Cardio Workout
An attorney’s frivolous litigation against the medical practice of her former brother-in-law drew a censure from the New Jersey Supreme Court.
The misconduct was explained in the report and recommendation of the Disciplinary Review Board
Specifically, respondent violated RPC 3.1 by filing a frivolous lawsuit against Cardio Medical. Respondent registered the Nonprofit entity, parroting Cardio Medical’s name, without the “P.A.” at the end. Thus, the evidence is uncontroverted that respondent knew, or reasonably should have known, that Cardio Medical was the owner of the BOA [bank] account.
Nevertheless, respondent filed a lawsuit against Cardio Medical alleging that the entity, which she knew to have been Cohen’s medical practice for at least twenty years and was subject to Cohen’s PSA with her sister, was unlawfully using and appropriating the Nonprofit’s business name, which caused the Nonprofit great harm and prevented it from operating its business.
Furthermore, respondent had no basis in law or fact to use the lawsuit to issue a subpoena seeking a year’s worth of financial records from Cardio Medical. Her statements that she only issued the subpoena to learn the correct address of Cardio Medical defy common sense. A subpoena was not necessary for this purpose and respondent failed to offer any plausible explanation for issuing one.
Additionally, at the time respondent filed her lawsuit, the Nonprofit could not have been operating at all, because its purported sole practitioner [her daughter] had not yet graduated from medical school, chosen a specialty, or decided whether she wanted to return to the United States to practice medicine. Thus, there is no question that respondent’s lawsuit against Cardio Medical was frivolous and without a basis in law or fact.
Motivation
We cannot ignore respondent’s timing or decision to obtain the name of a cardiology practice for her daughter – who had not yet graduated from medical school or decided if she wanted to become a cardiologist – which came less than three months after [her sister] Theresa unsuccessfully moved to vacate the [Property Settlement Agreement] on the grounds that that Cohen had failed to adequately disclose his medical practice’s finances.
Sanction
on balance, and consistent with disciplinary precedent, we recommend the imposition of a censure as the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.
Members Hoberman and Petrou voted to recommend the imposition of a three-month suspension.
Member Petrou determined that the stratagem employed by respondent to obtain inherently confidential financial information constituted a highly egregious abuse of her privileges as a member of the New Jersey bar that can only be remedied by a suspension, with reinstatement conditioned upon restitution of the counsel fees Dr. Cohen incurred to quash the illegitimate subpoena. Member Petrou concluded that a suspension was warranted because of 1) the potential risk to her student-daughter by embroiling her in a fraudulent scheme; 2) her deliberate, detailed planning of the formation of an entity whose sole purpose was to support the filing of a complaint and issuance of a subpoena to secure confidential information; 3) the opening of a bank account at the same financial institution that served Dr. Cohen’s practice; 4) service upon Dr. Cohen at an address she knew to be invalid, such that only the bank’s due diligence prevented an improper disclosure of financial information regarding his medical practice; and 5) respondent’s complete lack of candor to ethics authorities.
Respondent
Respondent earned admission to the New Jersey bar in 1976 and retired from the practice of law on February 25, 2019. She reactivated her law license on May 5, 2020 and again retired from the practice of law on February 13, 2021, subsequent to the misconduct addressed below. She has no disciplinary history.
(Mike Frisch)