Outside Work Draws Two-Year Suspension

The New Jersey Supreme Court has imposed a two-year suspension for stipulated misconduct described by the Disciplinary Review Board, which had proposed a suspension for three years

From 2008 until 2021, respondent was a non-equity partner at the Firm. At the time he joined the Firm and throughout his tenure, he did not have a partnership agreement or written employment agreement with the Firm.

Upon joining the Firm, respondent earned a starting annual salary of approximately $130,000. He received periodic raises in the years that followed and, by 2017 and 2018, earned approximately $160,000 annually. However, in early 2019, the Firm advised him that it planned to implement firm-wide salary reductions and begin reducing staff. Thereafter, respondent’s salary decreased to approximately $143,000 in 2019 and, further, to $137,000 in 2020 through March 2021, when the Firm terminated his employment.

This disciplinary matter arises from respondent’s provision, while employed at the Firm, of outside legal services (the Outside Work), under the Firm’s name, on matters for which he did not open files at the Firm. In connection with these matters, in 2013, 2018, and 2019, he personally generated invoices for services rendered in seven matters (detailed below), indicating that payment should be made directly to him. These invoices were not the Firm invoices prepared on Firm letterhead but rather e-mails sent to the concerned party indicating payment should be made to “William C. Kelly, Esq.” Respondent kept the resultant payments, totaling $11,415, for his personal use.

Respondent did not provide formal letters of representation to the Outside Work clients. Instead, he communicated with them orally about the scope and nature of his representation. According to respondent, he conducted most, if not all, of his communications with the Outside Work clients by telephone or e-mail. Although he believed that he primarily communicated via his personal e-mail account, he conceded that he sometimes used his Firm e-mail account, office telephone, and cellular telephone for Outside Work communications.

Respondent’s misconduct apparently came to light around the time he suffered a seizure at work, in February 2021, that led to his hospitalization and inpatient treatment for alcoholism – a condition with which he had struggled since at least 2011. According to the Firm’s managing partner, while respondent was unavailable, an Outside Work client attempted to reach him and, upon learning respondent was not available, asked to speak with someone else at the office. The client subsequently was contacted by a different partner.

On March 15, 2021, upon respondent’s return to work, the managing partner and others met with him about the Outside Work. He admitted his misconduct, and the Firm terminated his employment the next day. However, the Firm did not institute civil litigation or seek restitution from him. In addition, no Outside Work client filed an ethics grievance against him.

The firm’s managing partner notified the Office of Attorney Ethics,

Respondent proffered multiple mitigating factors. He explained that he had four children, one of whom has special needs.4 In 2017, his marriage of twenty-three years had ended in divorce and, subsequently, he had significant monthly alimony and child support obligations. He claimed that, after the Firm reduced his salary in 2019, he “felt compelled to supplement his income via the Outside Work, misguided as it was.”

Respondent also described his struggles with alcoholism, his engagement in treatment starting as early as 2011, and his achievement of sobriety from March 2011 until late 2017, but for a 2014 relapse. In 2017, he suffered another relapse, “largely coinciding with [his] marital difficulties and economic pressures.” He attributed his engagement in the Outside Work to “financial insecurity and the collapse of” his marriage and home life, “exacerbated by his alcoholism.”

Sanction

Here, the parties asserted that discipline short of disbarment is warranted in light of the Firm’s significant and non-negotiable reductions of respondent’s salary in 2019 and 2020; his 2017 divorce; his role and obligations as primary financial provider for his family; his alcoholism, which he was in “the throes of” during the relevant period; his continuing success in treating that condition following his February 2021 hospitalization; his acceptance of responsibility for his misconduct and cooperation with the OAE; his entry into a disciplinary stipulation; his admission of wrongdoing when confronted by the Firm; his lack of disciplinary history; and his service to the community.

Recommendation

On balance, in view of the compelling mitigation, we determine that a three-year suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.

Member Rivera voted to recommend respondent’s disbarment. In her view, there was no meaningful distinction between respondent’s misconduct and the misconduct of other attorneys disbarred for taking law firm funds directly from clients while falsely claiming to act with their firm’s authorization.