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In re Dalena

February 26, 1999


The opinion of the court was delivered by: Coleman, J.

Argued January 21, 1999

On an Order to show cause why respondent should not be disbarred or otherwise disciplined.

This attorney disciplinary case concerns an allegation that respondent was involved in the unauthorized practice of law by associating with Carlo Maccallini, a foreign attorney who has not complied with the Foreign Legal Consultant Rule, R. 1:21-9.

Respondent was admitted to practice law in New Jersey in 1959. He practices law in Madison, New Jersey, under the firm name Dalena, Dalena and DeStefano. He has no prior disciplinary history. Our statement of the facts is taken from respondent's stipulated facts.

Dalena & Maccallini is a partnership organized under the laws of the Republic of Italy and does not maintain a bona fide office for the practice of law in New Jersey. Maryann T. Sagert, a resident of Illinois, contacted the American Consulate in Rome seeking an attorney fluent in English and Italian. She was referred to Maccallini in Italy whom she retained to settle the estate of her late father who was a resident of Italy. Respondent prepared and executed a retainer agreement with Sagert in New Jersey using the letterhead for Dalena & Maccallini, 181 Main Street, P.O. Box 607, Madison, New Jersey, 07940, which is respondent's law office address.

A dispute arose between the Dalena & Maccallini firm and Sagert concerning the reasonableness of a $4,646.50 fee charged for services rendered in connection with the estate matter. That bill prompted Sagert to file a fee arbitration request against Carlo Maccallini with the Morris County District X Fee Arbitration Committee, apparently because the retainer agreement was executed in Madison, New Jersey and listed the law firm address as Madison, New Jersey.

The District X Fee Arbitration Committee upheld the entire fee sought by Dalena & Maccallini. Sagert appealed to the Disciplinary Review Board (DRB) which vacated the fee arbitration determination based on a lack of jurisdiction over one of the parties.

While the fee arbitration was pending, Sagert also filed a grievance against Maccallini with the District X Ethics Committee (DEC) on February 15, 1995. Sagert alleged in the complaint that Maccallini accomplished nothing while representing her in Italy. The DEC inquired of respondent whether Maccallini had complied with Rule 1:21-9, and whether Maccallini was associated with respondent in his law firm. Respondent provided the following information:

"Mr. Maccallini requested my assistance in contacting Maryann Sagert and an agreement was entered with Dalena & Maccallini which was used as an intermediary and convenience by Carlo Maccallini in Rome. I practice each day as the Senior Partner of the firm above listed on this letterhead (Dalena, Dalena & DeStefano). Carlo Maccallini did not maintain an office for practice as a Foreign Legal Consultant here in New Jersey, but he used Dalena & Maccallini as a convenience for his clients for whom he was doing work in Italy. Dalena & Maccallini has no listed telephone number in any telephone book, or any law library, legal periodical, Martindale Hubbel or other publication. Carlo Maccallini has not held himself out as a Foreign Legal Consultant, but he has held himself out as an attorney licensed in the Republic of Italy to see clients here in the United States."

Respondent forwarded with the above written explanation a copy of a newspaper advertisement taken out by Maccallini, which typically appeared in American newspapers. Respondent explained that such advertisements [i]ndicate that Carlo Maccallini is available for appointments for problems in Italy and is not associated with the firm Dalena, Dalena & DeStefano. There is no mention of Dalena & Maccallini. The practice of Mr. Maccallini in coming to the United States goes back about 14 years. Customarily Mr. Maccallini comes to the United States to see clients for cases that he has in Italy. He does so twice a year and generally for three or four day periods. The total time spent in the United States seeing clients generally extends not more than 7 days over a yearly period.

Based on the recommendation of the DEC investigator, the DEC dismissed the grievance for lack of jurisdiction over Maccallini. Sagert filed a notice of appeal with the DRB, stating that, when she retained Dalena & Maccallini, she believed "that Mr. Maccallini was a part of the firm in New Jersey." According to Sagert, respondent assured her that she "would have the 'United States law' to protect her if the job wasn't being done in Italy."

On January 25, 1996, the DRB reversed the DEC's dismissal of Sagert's grievance and remanded the matter to the Office of Attorney Ethics (OAE) for further investigation. On January 26, 1996, the DRB Counsel advised the OAE that the DRB was concerned about the propriety of the business relationship between respondent and Maccallini.

By letter dated March 1, 1996, Counsel for the OAE requested respondent to provide specific information concerning the legal and financial structure of Dalena & Maccallini. On March 8, 1996, respondent informed the OAE that [t]here are no written agreements concerning the association of Dalena & Maccallini. That relationship is an ad-hoc relationship. Dalena & Maccallini does not do business in the State of New Jersey. The office acts as a convenience for Carlo Maccallini in doing business in Italy and meeting with American clients here.

To further explain the financial arrangement between respondent and Maccallini, respondent supplied copies of bills given to Sagert. Respondent revised his March 8, 1996, response to the statement that Dalena & Maccallini is a law firm that has been in existence for approximately fourteen years and is located in Rome, Italy. He asserted that the listing of a New Jersey office on Dalena & Maccallini's letterhead meant that it is merely a satellite office of the firm practicing in Italy. The office here in New Jersey has what is best described as an "ad-hoc" relationship with the Rome office. The New Jersey office does not constitute a "bona fide" office as described under our Court Rules. It serves only the Italian law firm as a communication center for correspondence and documents and convenience to American clients and others who have matters pending in Italy.

Respondent further explained that the Italian law firm of Dalena & Maccallini has clients throughout the United States and that the firm has no New Jersey practice presently or at any time. Respondent added that [a]lthough Dalena & Maccallini is not a law firm which has a New Jersey practice, it clearly constitutes a "partnership" for purposes of the practice of law within the Republic of Italy. I have not, either by means of expressed statements or by implication, misled to [sic] the public the nature of the partnership of Dalena & Maccallini. It has always been made clear to our clients that the firm does not have a New Jersey practice. . . . By way of further explanation, Carlo Maccallini does advertise and meet with clients on matters solely concerning the Republic of Italy. He does not practice New Jersey law, and any fees earned by Dalena & Maccallini have to do with foreign matters.

Respondent stated that he and Maccallini had considered certification under Rule 1:21-9, but had concluded that certification was inappropriate because Maccallini is not "domiciled or has a permanent presence in the State of New Jersey," he "does not intend to maintain a bona fide office in the State of New Jersey," and he has not used, and does not intend to use, the title of "foreign legal consultant."

Respondent admits that Maccallini occasionally meets with clients in the law offices of Dalena, Dalena & DeStefano, regarding matters of Italian law. Although there is no New Jersey Lawyers' Diary listing or telephone number for Dalena & Maccallini, there is a small plaque at the rear of the Dalena, Dalena & DeStefano office that reads "Dalena & Maccallini."

The OAE requested that respondent provide copies of retainer agreements between Dalena & Maccallini and New Jersey residents, identical or similar to the agreement with Sagert. Respondent certified that he has no such agreements in his possession because all retainer agreements with Dalena & Maccallini are kept in the firm's Rome office. He also certified that there are no pending matters in which Dalena & Maccallini represents ...

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