(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this attorney disciplinary matter, the Court considers whether New Jersey attorney Ty Hyderally violated Rule of Professional Conduct (RPC) 8.4 (c), which prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation," by displaying on his law firm website the seal of the New Jersey Board on Attorney Certification (Board) although he had not been certified by the Supreme Court in one of the practice areas designated for certification pursuant to Rule 1:39. Only certified attorneys may display the seal in their advertising or other communications.
Hyderally, who practices in Montclair, asked his cousin, a California website designer who is not an attorney, to design a website for his law practice in 2005. The designer added the seal, which included the language "New Jersey Supreme Court Certified Attorney," to the website. He had no familiarity with legal terminology and had reviewed the websites of other New Jersey attorneys to look for law-related imagery to add to the website. He added the seal, which appeared on sixteen pages of the website, because he assumed that if an attorney practiced in New Jersey, it meant the attorney was certified by the Supreme Court. Hyderally knew the website had been designed, but never looked at its content in detail and did not learn of the presence of the seal until two years later when he was contacted about a grievance that had been received about his advertising by the Supreme Court Committee on Attorney Advertising (CAA). Hyderally immediately had the seal removed from the website.
The CAA referred the issue of the use of the seal on the website to the Office of Attorney Ethics (OAE) and the OAE filed a formal complaint against Hyderally in 2010. The complaint charged him with violation of RPC 8.4 (c), but did not charge him with violating RPC 7.1 or 7.2, which define the parameters of acceptable attorney representations regarding services, and of attorney advertising. At the ethics hearing, Hyderally testified that the presence of the seal on his website was unintentional and inadvertent, that he had not intended to hold out himself or his associates in his practice as a certified pursuant to Rule 1:39, that he did not include any reference to attorney certification on his business cards or letterhead, and that he did not receive any of the referral fees certified attorneys are allowed to receive from attorneys pursuant to Rule 1:39-6 (d). Hyderally also testified that he retained a professional website design company to redesign his website in 2009 and terminated the services of his cousin.
The hearing panel of the District Ethics Committee (DEC) concluded that Hyderally had a duty to monitor his website to ensure that no improper content appeared on it and that his failure to do so violated RPC 8.4 (c) and Rule 1: 39-6(b). The panel recommended that he be reprimanded.
The Disciplinary Review Board (DRB) conducted a de novo review of the matter pursuant to Rule 1:20-15(f). The DRB agreed that Hyderally had improperly displayed the seal on his website, but concluded that the complaint should be dismissed because of the inadvertent nature of the inclusion of the seal on the website and because Hyderally had immediately removed the seal when instructed to do so and had derived no benefit from the display of the seal. The DRB noted that a violation of RPC 8.4 (c) requires a finding of intent and that there was not clear and convincing evidence that Hyderally had intended to include the seal on his website or had knowingly ratified its display.
The DRB filed its decision recommending dismissal of the complaint with the Court, which determined on its own motion to review the decision of the DRB and issued an Order that directed Hyderally to show cause why he should not be disbarred or otherwise disciplined. The OAE opposed the dismissal of the complaint, contending that the improper display of the seal for approximately two years could not be cured simply by removing the seal, that receipt by the attorney of a benefit from display of the seal was not required to prove an ethical violation, and that Hyderally's claim of inadvertence was not credible. The OAE urged the Court to discipline Hyderally by reprimand or censure and to require him to submit his advertising to the CAA for approval for a period of two years.
HELD: There is no clear and convincing evidence that Hyderally either intentionally included the New Jersey Supreme Court Certified Attorney seal or approved its continued presence on his website, so there is no basis on which to find that his conduct constituted "dishonesty, fraud, deceit or misrepresentation," in violation of RPC 8.4 (c), and the ethics complaint should be dismissed. Attorneys are responsible for monitoring the content of all communications with the public, including their websites, so henceforth, attorneys who are not authorized to display the Certified Attorney seal on their websites or in other communication but do so, will be subject to appropriate discipline.
1. An attorney may display the Supreme Court Certified Attorney seal in advertising, including a website, only if the attorney has been designated by the Court as a Certified Attorney after having been found to meet the standards of the Board for professional experience, fitness, competence and education in the specified area of legal practice and after passing a written examination. The designation of an attorney as a Certified Attorney on the roll of attorneys represents a significant professional achievement and is an important symbol of professional competence in a specialized field. (pp.7-10).
2. Hyderally was not charged with violation of the specific Rules of Professional Conduct that govern attorney advertising, so the Court examines only whether there is clear and convincing evidence that Hyderally violated RPC 8.4 (c) by the inappropriate display of the seal on his website for approximately two years. In past cases, the Court has imposed discipline based on violation of this RPC when the record demonstrates intentional misconduct; in this case, there is not clear and convincing evidence that Hyderally's conduct constituted "dishonesty, fraud, deceit or misrepresentation." (pp.10-12).
3. Attorneys are responsible for monitoring the content of all their communications with the public, including websites designed by others, to ensure that their communications are always consistent with the Rules of Professional Conduct. In the future, attorneys who are not authorized by Rule 1:39 to use the New Jersey Supreme Court Certified Attorney seal, but who display it on their websites or in other communication, will be subject to discipline. Attorneys should frequently review the language and design of their websites. (p.12).
The Formal Complaint in District Docket No. XIV-2009-0329E is DISMISSED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, HOENS and PATTERSON, and JUDGE WEFING, temporarily assigned, join in the Court's Opinion. JUSTICE ALBIN did not participate.
IN THE MATTER OF TY HYDERALLY, An Attorney at Law
Argued October 24, 2011 Decided December 20, 2011
On an Order to show cause why respondent should not be disbarred or ...