You Deserve A Break Today

A censure was imposed by the New Jersey Supreme Court.

The Disciplinary Review Board found multiple violations in handling a zoning matter

Retention

In February 2012, Sebastian first retained the Firm in connection with ongoing litigation concerning an IHOP restaurant located next to one of his McDonald’s restaurants. Thereafter, Sebastian retained the Firm in connection with several other unrelated business litigation matters. Meanwhile, [his son] Darren separately retained the Firm to assist him with several personal legal matters. One of respondent’s law partners primarily represented Darren and Sebastian in connection with all those matters. During Darren’s June 27, 2019 interview with the OAE, he claimed that, at some point, each of those matters had “resolved.”

In October 2014, Passaic Industrial Properties, LLC (Passaic Properties), applied to the City of Passaic Zoning Board of Adjustment for variances and a site plan approval for the construction of a new McDonald’s restaurant and other retail space in Passaic, New Jersey. The Lentinis were concerned that Passaic Properties’ new McDonald’s restaurant would draw customers away from their family’s nearby McDonald’s restaurant. Following Passaic Properties’ application to the Board of Adjustment, Darren asked respondent’s law partner whether the Firm could represent his family in connection with their opposition to the development project.

The ensuing conduct involved Respondent’s alleged representation of persons who had not retained him.

Violations

respondent knew that neither F.B., E.L., nor M.L. ever had manifested any intent to form an attorney-client relationship. Respondent also knew that he had delegated to Darren the task of creating and maintaining the purported attorney-client relationships. Rather than attempt to contact F.B., E.L., and M.L. to determine whether the individuals had consented to the representation, respondent refused to take any steps to confirm Darren’s unsupported allegations. Instead, respondent continued to misrepresent to the Board of Adjustment his attorney-client relationships with the three individuals while remaining willfully blind to the significant likelihood that no such relationships existed.

Respondent’s deception before the Board of Adjustment, however, did not end there. Specifically, during the January 2015 Board of Adjustment session, respondent claimed that, in addition to representing F.B., he had “been contacted by a couple of other folks who are considering also retaining us.” Respondent, however, knew that, at the time of the January 2015 Board of Adjustment session, no one other than Darren had contacted him or the Firm about objecting to the development project. Moreover, respondent admitted that Darren had provided no other potential objectors than F.B. Respondent, thus, knowingly misrepresented to the Board of Adjustment that he had been contacted by other individuals who were considering retaining the Firm.

Additionally, during the March 2015 Board of Adjustment session, respondent claimed that he had “just recently [been] contacted by an [E.L.] and [M.L.,]” who had “not officially retained [the Firm] yet, but they – we’re in the process.” At the time of the March 2015 Board session, respondent’s knowledge of E.L. and M.L. was limited to Darren’s March 10, 2015 e-mail to respondent’s partner, which provided only E.L.’s and M.L.’s names and purported addresses, without any further information. Additionally, respondent admitted, during the ethics hearing, that he could not recall having any discussions with Darren regarding E.L. and M.L. prior to the March 2015 Board session. Nevertheless, based solely on Darren’s limited March 2015 e-mail, respondent knowingly misrepresented to the Board of Adjustment that he himself had been contacted by E.L. and M.L. and that both individuals were in the process of formally retaining the Firm.

Respondent also violated RPC 3.1 and a second instance of both RPC 3.3(a)(1) and RPC 8.4(c) by filing on behalf of F.B., E.L., and M.L. – three individuals whom respondent knew never had retained the Firm – a Superior Court complaint in lieu of prerogative writ challenging the Board of Adjustment’s resolution.

Prior to filing the complaint, respondent failed to attempt any communication with F.B., E.L., and M.L. to determine whether they had consented to being the only named plaintiffs in the lawsuit. Moreover, in May 2015, four months before respondent had filed the lawsuit, he sent Darren a proposed retainer agreement for F.B., E.L., and M.L.’s respective signatures. Respondent, however, never received from Darren the executed retainer agreement. Although respondent claimed, in his August 2019 interview with the OAE, that he did not “think it was” necessary to have F.B., E.L., and M.L. each execute the retainer agreement while the matter was pending before the Board of Adjustment, in his view, “going to court was a different issue.” Despite respondent’s tacit acknowledgment of the importance of confirming the representation of his supposed clients, he failed to follow up with Darren regarding the status of the agreement, claiming that he had “sort of lost track of it” and that “[i]t was a mistake on [his] part.”

Based on these circumstances, respondent knew that none of his purported clients had manifested any intent to enter an aware, consensual attorney-client relationship. Nevertheless, rather than conduct any due diligence to determine whether F.B., E.L., and M.L. had consented to serving as the only named plaintiffs, respondent, based solely on Darren’s unsupported claims, proceeded to file the deceptive and factually frivolous lawsuit, purportedly on their behalf.

Finally, respondent committed a third violation of both RPC 3.3(a)(1) and RPC 8.4(c) by misrepresenting, in the complaint in lieu of prerogative writ, (1) that M.L. had resided within two-hundred feet of the proposed development site; (2) that F.B. and E.L. each had opposed the development project; and (3) that F.B., E.L., and M.L.’s respective interests were adversely affected by the actions of Passaic Properties and the Board of Adjustment.

As discussed above, had respondent conducted the required due diligence regarding the facts alleged in the complaint, which he certified as true, respondent would have discovered that M.L. did not reside within two-hundred feet of the proposed development site at either of the purported addresses provided by Darren. Instead, respondent would have discovered that the first address was a pharmacy while the landlord for the second address had no record of M.L. ever living at the property.

Moreover, had respondent attempted to contact F.B. and E.L., he would have determined, as did Passaic Properties, that F.B. and E.L. did not oppose the development project and that F.B. had welcomed the construction of the McDonald’s restaurant. Further, during the ethics hearing, respondent admitted that Darren had provided him no information to suggest that E.L. and M.L.’s respective interests were adversely affected by the development project. Rather, respondent maintained that E.L. and M.L., as alleged employees of Sebastian’s McDonald’s restaurant, were simply “doing [Darren] a favor.”

Respondent’s multiple appearances before the Board of Adjustment and the Superior Court, on behalf of his three non-clients, also resulted in an enormous waste of judicial resources, in violation of RPC 8.4(d). Specifically, respondent’s sham appearances resulted in several Board sessions, which delayed the Board’s consideration of Passaic Properties’ application and which forced the Board to address whether respondent’s purported clients had standing to object to the development project under the MLUL. Respondent further wasted judicial resources by filing, on behalf of the three non-clients, a frivolous Superior Court complaint in lieu of prerogative writ, which resulted in Passaic Properties’ summary judgment motion and a court appearance to address respondent’s deception.

Finally, respondent violated RPC 8.4(a) by attempting to violate RPC 8.4(c) by knowingly falsifying the date of F.B., E.L., and M.L.’s proposed retainer agreement.

Sanction

On balance, weighing the duration of respondent’s repeated acts of deception against his otherwise unblemished forty-three-year legal career, we determine that a censure is the appropriate quantum of discipline to protect the public and to preserve confidence in the bar.

Chair Gallipoli and Members Campelo and Rivera voted for a three-month suspension, according significant aggravating weight to the egregiousness of respondent’s repeated acts of deception to the Board of Adjustment and to the Superior Court, despite his expertise in municipal land use law.

(Mike Frisch)