Custody Conduct Draws One-Month Suspension

The New Jersey Supreme Court has suspended an attorney for one month for ethics violations in a custody dispute with his former girlfriend, rejecting the three-month suspension proposed by the Disciplinary Review Board.

The conduct is described in the report and recommendation of the DRB.

The issues related to Respondent and his girlfriend’s child after they broke up.

The girlfriend (“Doe”) and he had relocated to Kentucky.

She worked from Kentucky remotely for a New York bank investment firm as a corporate access manager but was away for training and other work-related activities.

At the end of February 2019, Doe agreed to allow respondent to pick up their daughter from her Louisville pre-school, on February 27, 2019, while Doe was “on business in New York.” Doe, however, permitted respondent to spend time with their daughter for that day only. On February 27, 2019, respondent picked up his daughter from pre-school and took her to his New Jersey residence, without Doe’s knowledge or permission.

The misconduct followed

Here, on February 28, 2019, the day after respondent had taken his child from Kentucky to New Jersey without Doe’s knowledge or permission, respondent filed, in the Superior Court of New Jersey, a verified complaint and order to show cause requesting parenting time, joint legal custody, and an order prohibiting Doe from removing their daughter from New Jersey. The very same day, Doe filed, in the Circuit Court of Jefferson County, Kentucky, a petition for custody of her daughter and an emergent motion seeking her daughter’s immediate return to Kentucky.

On March 4, 2019, following a hearing in the Superior Court of New Jersey, in which respondent, Doe and her counsel, and the Jefferson County Circuit Court judge participated, Judge Ridgway issued an order dismissing the New Jersey matter and relinquishing jurisdiction to Kentucky, pursuant to the UCCJEA, based on the fact that the child had been residing in Kentucky for at least six months.

Rather than abide by Judge Ridgway’s jurisdictional ruling, respondent filed an amended Superior Court complaint, on behalf of himself and his daughter, under the same docket number that Judge Ridgway had dismissed. Respondent’s amended complaint alleged, in substantial part, questionable tort and contract claims against Doe, in her purported capacity as the “landlord” of respondent and their daughter while they had resided together in the Kentucky residence. Respondent, however, failed to secure Doe’s consent or the leave of the Superior Court before filing his amended complaint, as R. 4:9-1 requires. Moreover, respondent failed to serve the amended complaint on Doe, as R. 5:4-2(b) requires.

On the same day that respondent filed his amended Superior Court complaint, he improperly issued subpoenas to Doe’s current and former employers and to the property management company of Doe’s New York City apartment, seeking information regarding her income, travel schedules, and apartment leases. Respondent issued the subpoenas under the caption of the New Jersey custody matter that Judge Ridgway had dismissed for lack of jurisdiction. Respondent’s subpoenas also threatened the entities with “damages in a civil suit” and “contempt of court” if they did not comply. Additionally, just as respondent failed to serve Doe with his amended complaint, respondent also failed to serve Doe with his subpoenas, as R. 4:14-7(c) requires.

Respondent’s amended complaint and subpoenas lacked a colorable basis in law and fact because Judge Ridgway previously had determined, pursuant to the clear standards set forth in the UCCJEA, that New Jersey lacked jurisdiction to adjudicate the custody dispute.

The DRB rejected his claim of a good faith basis for his actions.

Further

Additionally, respondent violated RPC 8.4(d) by executing the Kentucky mediation agreement requiring Doe to withdraw her New York and New Jersey ethics grievances within forty-eight hours. The day after Doe and respondent had executed the agreement, Doe sent the OAE an e-mail, attempting to withdraw her ethics grievance. Attorneys who negotiate the dismissal of an ethics grievance commit a violation of RPC 8.4(d), as a matter of law. 

No violation

However, we conclude that there is insufficient evidence to find, by clear and convincing evidence, that respondent violated RPC 7.1(a)(1), as alleged in the complaint, by misrepresenting his ability to practice law in Kentucky. Although respondent’s May 29, 2020 letter contained his law firm letterhead, which listed only a Kentucky address, and which contained the notation “Kentucky | New York | New Jersey” on the bottom of the letter, it appears that the letter was intended only as a confidential correspondence directed solely to his Kentucky attorney. Specifically, respondent’s letter not only enclosed a child support check for Doe, but it also expressed respondent’s preference that his attorney oppose his daughter’s enrollment at a daycare for the upcoming school year. Although we find no humor in respondent’s correspondence, despite his characterization of his letter as a “joke[,]” based on these unique facts, and the confidential nature of respondent’s letter, we find that the record lacks clear and convincing evidence that respondent unethically misrepresented his ability to practice law in Kentucky.

Sanction

On balance, weighing respondent’s multiple frivolous submissions and his refusal to accept responsibility for his misconduct against his otherwise unblemished twenty-seven-year career at the bar, we determine that a three-month suspension is the appropriate quantum of discipline to protect the public and to preserve confidence in the bar.

Chair Gallipoli and Members Menaker and Rivera voted to further sustain the RPC 7.1(a)(1) charge, finding that respondent’s May 29, 2020 correspondence gave the false impression that he was admitted to the Kentucky bar when, in fact, he held no such bar admission.

(Mike Frisch)