In Re Simon

20 A.3d 421, 206 N.J. 306
CourtSupreme Court of New Jersey
DecidedJune 9, 2011
Docket067340
StatusPublished
Cited by5 cases

This text of 20 A.3d 421 (In Re Simon) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Simon, 20 A.3d 421, 206 N.J. 306 (N.J. 2011).

Opinions

Judge STERN

(temporarily assigned) delivered the opinion of the Court.

This ethics proceeding involves the age-old conflict between an attorney’s obligation to represent a client diligently and effectively, on the one hand, and the need to collect payment for the representation, on the other. Specifically, we must address whether respondent, Richard J. Simon, violated RPC 1.7(a)(2) by suing his client, while still representing him, allegedly in order to preserve property which could be used to pay for his services. We conclude that there was a clear violation of the Rule and ethical standards, but limit the discipline imposed based on the totality of circumstances. However, we take this opportunity to emphasize that any future suit by an attorney against a current or existing client in an effort to withdraw from litigation shall not be tolerated.

[308]*308I.

The matter was heard by a hearing panel of the District VIII Ethics Committee (DEC), see Rule 1:20-6 (governing composition of the DEC hearing panels), on a stipulated record that included the following critical facts:

Respondent was contacted by Julio Sierra to represent Sierra’s brother, Angel Jimenez, who was charged with murder [and other offenses] and held in the Middlesex County Detention Center in lieu of bail. Respondent had known the Sierra family for many years. [Respondent believed Julio Sierra to be a financially responsible person who was prepared to pay for his brother’s defense, and that Angel Jimenez was not personally able to afford private counsel.] 1 A retainer agreement was signed by Sierra, Jimenez and Jimenez’ mother, Celida Sierra. Respondent received an initial $5,000.00 retainer from Julio Sierra and another $5,000.00 from Julio Sierra in September, 2005 after defendant’s indictment. The retainer agreement set [Respondent’s hourly rate at $325.00, and provided that [Respondent could end his representation if the individuals failed to make payment.
Respondent provided legal services to Jimenez from March, 2005 through August, 2008. The defendant was indicted in March 2005,2 and arraigned on a superceding indictment on August 12, 2007. Respondent maintained contact with the Sierras, who attended many of the court appearances. On July 25, 2007, [Respondent met with Julio Sierra and discussed his outstanding legal fees. This meeting was confirmed in a letter dated July 26, 2007. In that meeting, [Respondent informed Sierra of more than $50,000.00 in outstanding legal fees, fees that [Respondent wanted paid. Sierra asserted that he was going to refinance his property located at 365 Grove Street, Perth Amboy, New Jersey, and agreed that [Respondent would be paid the $50,000.00 at the time of the refinancing. Based upon this agreement, [Respondent continued to provide legal services to Jimenez.
In early January, 2008, Sierra told [Respondent that he could only pay [Respondent $10,000.00 from the refinancing, but would pay the remaining fees at a later date. Respondent confirmed this in a January 4, 2008 letter. In March, 2008, [Respondent received an additional $10,100.00 from defendant’s brother, however the funds came from Sierra’s sale of the property, not its refinancing. By that time [Respondent 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. Respondent placed calls to Sierra seeking payment of the outstanding balance.
On May 1, 2008, [Respondent sent an itemized invoice to Sierra. On June 10, 2008, [Respondent was told by defendant’s brother that there “was no more money”, and that Angel should “take a plea”. On June 23, 2008, [Respondent [309]*309wrote to defendant’s mother and brother, copying defendant, that they now owed him over $66,000 and that he could not continue on as Angel’s attorney without payment. In that letter [Respondent 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 [Respondent’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.
Respondent also informed them, by regular and certified mail, that if payment were not received, he intended to sue for it[J

The stipulation continued:

In early July, 2008, [Respondent filed a motion to withdraw as counsel, on the basis of non-payment of fees and a breach of the attorney/client retainer agreement. Attached to his motion were the letters sent to the Sierras and Jimenez informing them of his intent to sue. No opposition was filed by the Middlesex County Prosecutor’s Office. At the time the motion was filed, no trial date had been set by the [c]ourt. 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 [m]otion. [The judge] denied the motion and, after discerning the attorneys’ schedules, set the trial date for December, 2008. At the hearing, [Respondent indicated his intent to appeal the [j]udge’s ruling. The defendant, [Respondent’s client, attended the hearing but was not asked whether or not he wanted [Respondent to continue to represent him.
Respondent did appeal the [j]udge’s denial of his [mjotion to [withdraw, and also filed suit against his client and his client’s family for his legal fees. Respondent also asked the |c]ourt to [s]tay the [tjrial pending the appeal.
Respondent learned that his client’s family had transferred their home to another family member for nominal consideration, an action [Respondent presumed was to avoid his obtaining a judgment on it. When [Respondent’s client learned of the lawsuit, he wrote the [j]udge asking for another attorney. When the [j]udge learned of the lawsuit, he amended his prior order and relieved [Respondent as counsel for Angel Jimonez.3
Respondent was ready to proceed with the criminal matter, regardless of the lawsuit. He did not withdraw from his representation of the defendant, and asserted to the [c]ourt that he was ready to try the ease.
[Exhibit numbers omitted.]

By order dated October 10, 2008, the judge, in relieving respondent as defendant’s counsel, stated that he was “satisfied that given the filing of [the] lawsuit by [respondent] against his client any further representation of the defendant by [respondent] is [310]*310impossible.” The judge then referred the matter to the Office of Attorney Ethics (OAE).

On August 29, 2008, respondent filed a civil complaint for fees against defendant, defendant’s brother, and their mother in the amount of $74,691.50. Respondent filed an amended complaint on September 23, 2008, that addressed allegations of the allegedly fraudulent transfer by defendant’s brother of his property, the proceeds from the refinance of which were supposed to be used to pay respondent’s fee. The amended complaint added George Sierra and Rafaela Vargas, the transferees of the property, as defendants.

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149 A.3d 816 (New Jersey Superior Court App Division, 2016)
Abedi v. Sheikhpour CA4/3
California Court of Appeal, 2015
In Re Simon
20 A.3d 421 (Supreme Court of New Jersey, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
20 A.3d 421, 206 N.J. 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-simon-nj-2011.