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In re Tyler

Supreme Court of New Jersey

May 14, 2018

IN THE MATTER OF KIMBERLY S. TYLER AN ATTORNEY AT LAW

          Argued: April 19, 2018

         District Docket Nos. VA-2014-0032E; VA-2015-0006E; VA-2015-0008E; VA-2015-0009E; and VA-2015-0018E

          John C. Garde appeared on behalf of the District VA Ethics Committee.

          Respondent waived appearance for oral argument.

          DECISION

          Bonnie C. Frost, Chair

         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was before us on a recommendation for a three-month suspension filed by the District VA Ethics Committee (DEC). The five-count first amended complaint charged respondent with violations of RPC 1.1(a) (gross neglect), RPC 1.1(b) (pattern of neglect, [1] RFC 1.3 (lack of diligence), RPC 1.4(b) (failure to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information), RPC 1.5(b) (failure to provide a client with a writing setting forth the basis or rate of the fee) and RPC 8.4(c) (conduct involving, dishonesty, fraud, deceit or misrepresentation). For the reasons expressed below, we determine to impose a six-month suspension on respondent.

         Respondent was admitted to the New Jersey bar in 1990 and the New York bar in 1998. She maintains a law practice in Newark, New Jersey.

         In 2011, on a motion for discipline by consent, respondent was reprimanded for gross neglect, pattern of neglect, and lack of diligence in six bankruptcy matters. She also failed to communicate with the clients, and communicated with a client whom she knew or should have known had retained counsel. We considered, in mitigation, that respondent was struggling with diabetes and a mental health issue at the time of the misconduct and had an otherwise unblemished record since her admission to the bar. In re Tyler, 204 N.J. 629 (2011).

         In 2014, respondent received another reprimand, again by consent, for failure to communicate with a client in a bankruptcy matter. Despite the client's requests for information, respondent ceased communicating with the client, and never informed him that a creditor had been added to the bankruptcy schedule, the debt had been discharged, and the bankruptcy was closed. The Court ordered respondent to submit, to the Office of Attorney Ethics (OAE), proof of fitness to practice law. In re Tyler, 217 N.J. 525 (2014).

         In connection with this matter, on April 13, 2018, respondent filed a motion to supplement the record with two reports issued by Dr. Daniel Greenfield. We determined to grant respondent's motion and to receive Dr. Greenfield's reports under seal.

         This matter was before us by way of an unusual procedure. At the DEC hearing, the presenter asserted that under R. 1:20-4(e), respondent waived her right to a hearing, because she failed to request one in her answer. Thus, respondent and the presenter entered into a stipulation of facts, which the presenter read into the record. Respondent stipulated to the authenticity and admissibility of the Bates-stamped documents for each matter, which constituted her entire file in each of the matters under review. The stipulation, the documents from respondent's files in the five matters, and the presenter's and respondent's unsworn comments at the DEC hearing establish that respondent accepted fees from five clients, performed virtually no work in their matters, failed to communicate the status of the matters to the clients or misrepresented their status, was difficult to reach, and in some of the matters, failed to provide the clients with writings setting forth the basis or rate of her fee.

         Respondent offered to admit into evidence certain e-mails that she had sent to the presenter. The presenter objected, noting that he had received "literally hundreds of emails" from respondent and, further, that the individuals to whom respondent referred in the e-mails were not identified and had no bearing on the matters before the DEC. The presenter also argued that the e-mails were not submitted within the time frames set forth in the case management orders.

         Respondent maintained that the e-mails were relevant, as they constituted mitigation and represented a collection of "online reviews that clients had left" for her, which she compiled into one document. She omitted the clients' names to protect their privacy and combined the reviews that she found websites.

         The presenter objected to the admission of the "unattributed statements from unidentified clients regarding unrelated matters." Because respondent did not intend to call any character witnesses, the hearing panel chair determined to permit respondent to limit her testimony on mitigation to the eighteen mitigating factors I listed in her answer and permitted her to read into the record her "on-line" reviews and character letters.[2] Although respondent did j not do so, her various submissions were admitted into evidence.

         The Penelope Holton Matter - Docket No. VA-2014-0032E

         On August 15, 2013, grievant Penelope Holton retained respondent to convert a Chapter 13 bankruptcy proceeding into a Chapter 7 proceeding, for which she paid respondent $550. Respondent did not provide Holton with a retainer agreement or other writing setting forth the basis or rate of her fee.

         Almost seven months later, on March 6, 2014, respondent sent a bankruptcy questionnaire to Holton to complete and return. By letter dated June 25, 2014, respondent promised to inform Holton when she became aware of additional information on the bankruptcy matter. The letter also informed Bolton that respondent was "trying to stay off the phone to get more work done." Respondent added, "I have had a lot of court time so it is hard to be on the phone." Therefore, respondent directed Holton to either write to her or to e-mail her with new information.

         In a June 26, 2014 e-mail, Holton stated:

Maybe you did not understand me when I left the message on your phone [I no][3] longer will be using you as my attorney. A year is to [sic] long to sit around and [wait for] you to do something. I told you four weeks ago I needed this case to be [filed on the] 26th or the chapter 13 would be dismissed you said you would file before [then. I] checked the bankruptcy court you never even filed the case. ... I will file in small claims court to get my five hund[red] dollars back. I will also be going to the lawyer discipline agency.

[Bates stamp HOL26.]

         Respondent prepared a $1, 525 bill, dated July 4, 2014, indicating that she had spent five hours and five minutes for her services as follows: one hour for four letters; fifty minutes for five telephone calls of ten minutes each; thirty minutes for document review; thirty minutes for the preparation of the bankruptcy questionnaire; fifteen minutes for e-mails; one hour for two in-person consultations; and one hour for document preparation. The bill informed Holton that she was not entitled to a refund.

         On July 4, 2014, Holton sent an e-mail to respondent, stating that she had filed charges against her for the return of her retainer and that respondent would receive a summons and complaint within a week.

         According to the stipulation, "on or about July 2014," Holton informed respondent that she no longer wanted respondent to represent her in the bankruptcy matter. Respondent's July 12, 2014 letter to Holton confirmed that Holton had retained new counsel. Respondent's letter stated:

Enclosed please find a payment of $35.00. The balanced [sic] due to you now is $515.00.
So you are aware, I planned to file documents with the Court on June 25, 2014 in the evening. . . . I am an electronic filer, therefore, I can file documents with the Court 24/7. You panicked instead of trusting me to do what I promised I would. I listened to my messages before I filed the documents and learned that you had hired another attorney.

[Bates stamp HOL24.]

         Respondent did not refund the full amount of Holton's retainer. Her file reflected that the only work she had performed on Holton's behalf was a Schedule F bankruptcy form - Creditors Holding Unsecured Nonpriority Claims.

         The Gregory Anderson Matter - District Docket No. VA-2015--0006E

         In June 2014, Gregory Anderson retained respondent for a Trenton, New Jersey municipal court matter. The Anderson file contained no retainer agreement or other writing memorializing the terms of the engagement. Respondent did not appear for an August 7, 2014 "court date." However, by letter dated August 11, 2014, respondent notified the court that she had previously sent a notice of representation and a request for discovery to the court, but had received neither discovery nor a notice scheduling "an appearance." Respondent's letter also requested that she be sent notice of a new trial date.

         On December 16, 2014, respondent informed Anderson that she would no longer be able to represent him and advised him to retain new counsel.

         In a letter dated December 22, 2014, addressed to the "Judge of the Municipal Court" in Trenton, respondent requested an adjournment of Anderson's trial date and asserted that she had advised Anderson to retain new counsel. The letter stated:

I have mandatory continuing legal education courses to finish before the end of the year. I also have a frivolous grievance filed against me that I am in the process of responding to. Additionally, I have been working hard to finish Federal cases before the end of the year. When I was first hired, I did not anticipate all of these situations would arise.
Furthermore, continuing to work on this case would be a financial hardship. I did not anticipate that this case would go to trial.
Additionally, I have been recently made aware of a property damage issue involving the defendant. The defendant advised me on Friday that this case was dismissed. I was never made aware that this case was pending at all.

[Bates stamp AND24.]

         Anderson requested a refund of the fee. On January 20, 2015, respondent sent a letter to Anderson, with the subject line "Re: Trenton Municipal Court Case Refund due: $800.00." The letter stated "I do not have any funds to send you now but as soon as I have income I will send a payment. For your inconvenience, I will be sending you a total of more than what I owe you."

         Respondent's March 16, 2015 letter/bill, stated, however: "Dear/client: I do not owe you a refund and I do not have any funds." According to the bill, Anderson owed her $1, 700: $100 for "over" ten text messages; $200 for "over" five phone calls; $800 for a court appearance "by per diem attorney;" $100 for notice of representation to court; $100 for reviewing documents (there were no documents in the file to review); and $200 for an in-person meeting.

         At the DEC hearing, respondent claimed that a fee arbitration determination required her to reimburse Anderson $650, which she paid, in installments because she could not afford to repay him all at once. Although respondent offered no proof of the repayment, she, nevertheless, urged the hearing panel to consider it as a mitigating factor.

         The Jose Soriano Matter - District Docket ...


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