In Re Simon

20 A.3d 421 (2011)

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Nature of the Case

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Facts

D was contacted by Julio Sierra to represent Sierra's brother, Jimenez, who was charged with murder [and other offenses] and held in the Middlesex County Detention Center in lieu of bail. D had known the Sierra family for many years. D believed Julio Sierra to be a financially responsible person who was prepared to pay for his brother's defense, and that Jimenez was not personally able to afford private counsel. retainer agreement was signed by Sierra, Jimenez and Jimenez's mother, Celida Sierra. D received an initial $5,000.00 retainer and another $5,000.00 from Julio Sierra in September 2005 after D's indictment. D's hourly rate was set at $325.00 and provided that D could end his representation if the individuals failed to make payment. D provided legal services from March 2005 through August 2008. Jimenez was indicted in March 2005 and arraigned on a superseding indictment on August 12, 2007. On July 25, 2007, D met with Julio Sierra and discussed his outstanding legal fees. D informed Sierra of more than $50,000.00 in outstanding legal fees, fees. Sierra asserted that he was going to refinance his property located at 365 Grove Street, Perth Amboy, New Jersey, and agreed that D would be paid the $50,000.00 at the time of the refinancing. Based upon this agreement, D continued to provide legal services to Jimenez. In early January 2008, Sierra told D that he could only pay D $10,000.00 from the refinancing, but would pay the remaining fees at a later date. In March 2008, D received an additional $10,100.00 and by that time D had billed over $70,000.00 in fees, and had incurred $13,846.57 in costs, but had been paid only $20,764 in fees. On June 10, 2008, D was told that there 'was no more money', and that Angel should 'take a plea'. On June 23, 2008, D informed them that he was going to make application to the court to be relieved as counsel. Invoices were sent to the client and his family on May 1, 2008; June 20, 2008; July 1, 2008; and August 28, 2008. A letter accompanied each invoice advising of D's intent to file a motion to be relieved as counsel if payment was not arranged, and also providing the Sierras and Jimenez with their right to file for Fee Arbitration. D also informed them, by regular and certified mail, that if payment were not received, he intended to sue for it. In early July 2008, D filed a motion to withdraw as counsel. The motion was not heard until the end of August 2008 and was heard by the trial judge. At the motion argument, the Prosecutor for the first time voiced objection to the motion. The motion was denied and a trial was set for December 2008. D indicated his intent to appeal the judge's ruling. D appealed the denial of his motion and also filed suit against his client and his client's family for his legal fees. D also asked the court to stay the trial pending the appeal. D learned that his client's family had transferred their home to another family member for nominal consideration, an action D presumed was to avoid his obtaining a judgment on it. Jimenez wrote the judge asking for another attorney. The judge amended his prior order and relieved D as counsel for Jimenez. D did not withdraw from his representation of D and asserted to the court that he was ready to try the case. The judge then referred the matter to the Office of Attorney Ethics (P). In May or June 2009, D was awarded approximately $55,020 in fee arbitration. P contended 'that a conflict of interest occurs when an attorney sues an existing client while the attorney is defending that client against the charge of murder,' and that D 'violated [RPC] 1.7(a)(2) when he filed civil litigation against his client for unpaid legal fees, while continuing to represent that client against criminal charges.' D believed that he did not violate RPC 1.7(a)(2) because he did not think that his representation of defendant would be affected thereby. D pointed out that the suit was against the mother and brother and that the lawsuit had to be filed expeditiously to 'prevent any further fraudulent conveyances.' The DEC hearing panel concluded that D had violated RPC 1.7(a)(2) and recommended a six-month suspension. Before the Disciplinary Review Board (DRB), P maintained that Dt had created a conflict of interest under RPC 1.7(a)(2) in suing an existing client. D countered that he 'followed every clear rule that was available regarding the procedures for suing a client.' He claimed that if a rule prohibited suits against current clients, he would have complied. The DRB upheld the DEC hearing panel's findings. The DRB concluded that - despite D's thirty-one years of unblemished membership in the New Jersey bar - a reprimand was warranted. D appealed.