After The (Slip And) Fall
An attorney’s mishandling of a personal injury claim involing a slip-and-fall in a Walmarts drew a public censure from the New Jersey Supreme Court.
From the report and recommendation of the Disciplinary Review Board
A problem
on March 13, 2012, as part of its initial discovery disclosures, Walmart asserted that it was not the owner of the property where the fall had occurred and identified Audubon as the lessor and owner of the property. Pursuant to the terms of Walmart’s lease agreement, Audubon was responsible for the maintenance of all common areas on the property, including snow and ice removal, and the paving and striping of the parking lots.
Ethics complaint
On September 13, 2013, the DNJ [New Jersey federal court] granted Walmart’s motion for summary judgment and dismissed Sharon’s case in the entirety.
Sharon alleged that, over the course of two years, between fall 2013 and fall 2015, she made multiple attempts to speak with respondent, both by telephone and in person. However, she claimed that she was unable to make an appointment with him and, when she attempted to meet him without an appointment, she was unsuccessful. Respondent also failed to inform Sharon, in writing, that her case had been dismissed. Further, Sharon maintained that respondent did not discuss the dismissal with her until sometime in fall 2015, approximately two years after it had been dismissed.
Bar charges
the presenter filed a formal ethics complaint, charging respondent with having violated RPC 1.1(a) (three instances); RPC 1.4(b) (five instances); RPC 1.4(c) (four instances); RPC 1.5(b) and (c); and RPC 8.1(a). Specifically, the complaint alleged that respondent violated RPC 1.1(a) by failing to (1) discuss with Sharon Walmart’s settlement negotiation proffers and offer to participate in mediation, (2) name the responsible party (Audubon) as a defendant in the litigation, despite his awareness that Audubon was the owner of the premises, and (3) oppose Walmart’s motion for summary judgment, resulting in the dismissal of Sharon’s claims.
Next, the complaint alleged that respondent violated RPC 1.4(b) and RPC 1.4(c), by failing to (1) inform Sharon that, on January 31, 2012, Walmart had notified respondent of its intent to remove the matter to federal court unless respondent stipulated that damages did not exceed $75,000; (2) inform Sharon of the eventual removal of the case to federal court; (3) keep Sharon apprised of Walmart’s various settlement negotiation proffers and offer to participate in mediation; (4) inform or explain to Sharon that Walmart had filed a dispositive motion and the implications of same; and (5) inform Sharon that the DNJ had granted the motion for summary judgment and that her claims had been dismissed.
The complaint alleged that respondent separately violated RPC 1.4(b) by failing to respond to Sharon’s repeated requests for meetings and information.
By failing to memorialize the basis of his rate or fee in a contingency matter, the complaint alleged that respondent violated RPC 1.5(b) and (c).
Last, the complaint alleged that respondent had violated RPC 8.1(a) by telling the DEC investigator that he had (1) notified Sharon, during an in-person meeting, that Walmart filed the summary judgment motion and that he was unable to oppose it, and (2) notified Sharon, during an in-person meeting, that the DNJ had granted the motion and dismissed her claims, and that he provided her with copies of the DNJ’s order and opinion.
While there was compelling mitigation in health issues
we determine that the significant harm respondent’s misconduct caused the client by extinguishing her personal injury claim is sufficiently egregious to warrant enhancing the baseline discipline of a reprimand to a censure.
(Mike Frisch)