On review of the decision of the Disciplinary Review Board.
For suspension -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. Opposed -- None. The opinion of the court was delivered by Handler, J.
[80 NJ Page 320] These disciplinary proceedings had their inception in a fee complaint brought by one Janet Tell against a Newark law firm before the Somerset County Ethics Committee. That Committee contacted the Union County Ethics Committee which in turn issued a statement of charges in lieu of complaint against respondent, Edward Gary Reisdorf, and his law partner, Robert H. Jaffe. These charges were based upon a complaint that the law firm had earlier brought against Reisdorf in a probate litigation seeking, inter alia, to have him removed as executor of the estate of Philip Tell, Janet's deceased husband, and to set aside a contingent fee contract which
Reisdorf had entered into with Janet Tell for legal services anticipated in a contest over the Tell will.
The Union County Ethics Committee held disciplinary hearings on the charges. It found by clear and convincing evidence that Reisdorf committed ethical infractions. Respondent sought review of this determination before the Disciplinary Review Board, which found that respondent had violated disciplinary rules, DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (prejudice to administration of justice) and DR 2-106(D) (excessive, overreaching fee). The Board recommended that Reisdorf be suspended from the practice of law for one year and be required to reimburse the Administrative Office of the Courts for the actual costs of disbursements for stenographic transcripts.
We are satisfied from our review of the record and the determinations of both the County Ethics Committee and the Disciplinary Review Board that the following facts were established by clear and convincing evidence. Philip Tell died on August 5, 1973. His will, which had been drawn by respondent and executed by decedent on January 4, 1973, described Janet Tell as his wife, although Janet and Philip, who were then living together, did not marry until April 1973. The will also named Janet as the sole beneficiary and Reisdorf as the executor. When respondent sought to probate the will on August 15, 1973, it was learned that on August 9, 1973, Mr. Tell's children by his first marriage (his marriage to Janet was his third) had filed a caveat, charging incapacity and undue influence. On August 31, 1973, the original return date of an order to show cause with respect to the caveat, another attorney was appointed administrator pendente lite pending the outcome of the will contest proceedings.
Mrs. Tell found herself in particularly difficult circumstances. The challenge to the will on grounds of undue influence and incompetence was based in part upon Janet Tell's marriage to decedent shortly after the execution of the
will, his death soon thereafter, and the fact that his natural children from his first marriage had been disinherited although they had been provided for in previous wills of the decedent even after he had married a second time. Janet's status as a beneficiary under the final will was further weakened by the questionable validity of the Mexican divorce Tell had obtained from his second wife. Also, serious charges had been made anonymously to the Union County Prosecutor's Office intimating that Janet Tell had murdered her husband, and, as a result, she had become the subject of an intensive investigation. Further, she was a British national and her right to remain in the United States after Mr. Tell's death was in jeopardy. In addition, she was without ready funds. The trustees of the Tell company pension fund in which she had an interest refused to make any payments to her because of the questions raised by the series of charges involving her and the will.
Respondent and his law firm undertook to represent her in connection with these various problems and to furnish legal representation in the defense of Mr. Tell's will. On September 10, 1973 Mrs. Tell entered into a contingent fee agreement which provided that the firm would represent her with respect to all claims involving the estate of her late husband. In return Mrs. Tell agreed to pay respondent 15% of the net amount received by her if the will contest were settled prior to a full pretrial and 20% of the net amount received if the contest were concluded after a full pretrial. In agreeing to this arrangement with Reisdorf, Mrs. Tell was led to believe by him that she had but two alternatives: (1) to pay legal fees in cash on an hourly basis whether the case was won or lost, or (2) to pay a legal fee only upon the contingency of the case being won. This choice, as presented to Mrs. Tell, was illusory. Respondent acknowledged that, in view of Mrs. Tell's grave circumstances, "[t]here was really no way that she could retain us on an hourly basis because she said she didn't have any cash."
The choice presented by respondent was false as well as illusory. At the time Reisdorf negotiated the contingent fee contract, he was apparently unaware of the provisions of the rules of court and statutes, R. 4:42-9(a)(3) and N.J.S.A. 3A:3-24, that afforded other potential avenues for reimbursement of legal and related expenses. Reisdorf, however, soon learned of these other possibilities for payment. Indeed, almost immediately upon entering into the contingent fee agreement with his client, he applied to the court for an initial allowance out of the corpus of the estate for the widow, Mrs. Tell, and for legal fees. The court granted the application on September 21, 1973, only a week and a half after he had concluded the contingent fee contract with Mrs. Tell; Reisdorf was awarded an attorney's fee of $10,000 and Mrs. Tell, a widow's allowance of $2,000. Despite this, Reisdorf never specifically apprised his client of other modes for the payment of legal fees. Moreover, he became aware of the opinion of others, his adversary in the will contest and a New York attorney whom Mrs. Tell had consulted, that the contingency fee arrangement was unconscionable and unethical, but he failed and refused to reopen the fee discussions with his client and continued to insist that the contract was reasonable and binding. Rounding out the factual picture, it appears that shortly after the fee arrangements and his successful application for interim allowances, on October 1, 1973, respondent procured an exceptionally favorable settlement for his client that was astonishing both for the speed with which it was obtained and the small amount, $100,000, Janet Tell had to give up in return for the caveators' withdrawal from the will contest. The settlement left Mrs. Tell as the sole beneficiary, respondent as the executor and his firm as attorneys for the estate.
Thereafter, respondent and Mrs. Tell reached an impasse over fees. Mrs. Tell dismissed Reisdorf and his firm as her personal attorneys and hired the Newark law firm. Eventually, a fee settlement was reached between that firm and Reisdorf
and Jaffe, but only after the Newark law firm had brought the complaint which was to provide the foundation for the present disciplinary proceedings.
A pivotal question in assessing the ethical implications of respondent's conduct is whether it was likely he would receive payment for his legal fees without resort to and continued insistence upon the contingency fee arrangement he obtained from his client in connection with the will contest. The Ethics Committee emphasized that respondent had:
insisted upon enforcement of the contingent fee contract * * * in spite of the fact that he * * * sought and received monies from the estate to pay for his fees in the will contest.
Similarly, the Disciplinary Review Board took the position that Reisdorf, as the executor of the estate, was clearly entitled to attorney fees. That being so, the Board concluded it was totally unreasonable for Reisdorf to have pursued compensation on a contingency basis. As it correctly noted, the law is well settled that an executor, acting in good faith to propound a will, is entitled, win or lose, to reimbursement out of the estate for attorney fees on the theory that, in offering the will for probate, he is but fulfilling his duty as an executor. See, e.g., In re Peppler, 134 N.J. Eq. 160, 161 (E. & A. 1943); Perrine v. Applegate, 14 N.J. Eq. 531, 534 (Prerog. 1862); Boylan v. Meeker, 15 N.J. Eq. 310, 358 (Prerog. 1854); In re Nixon's ...