IN THE MATTER OF KIMBERLY S. TYLER AN ATTORNEY AT LAW
Argued: April 19, 2018
Docket Nos. VA-2014-0032E; VA-2015-0006E; VA-2015-0008E;
VA-2015-0009E; and VA-2015-0018E
C. Garde appeared on behalf of the District VA Ethics
Respondent waived appearance for oral argument.
C. Frost, Chair
Honorable Chief Justice and Associate Justices of the Supreme
Court of New Jersey.
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,  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.
was admitted to the New Jersey bar in 1990 and the New York
bar in 1998. She maintains a law practice in Newark, New
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
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
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.
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.
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.
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.
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. Although respondent did j not do
so, her various submissions were admitted into evidence.
Penelope Holton Matter - Docket No.
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.
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.
June 26, 2014 e-mail, Holton stated:
Maybe you did not understand me when I left the message on
your phone [I no] 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.]
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.
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.
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.]
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.
Gregory Anderson Matter - District Docket No.
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.
December 16, 2014, respondent informed Anderson that she
would no longer be able to represent him and advised him to
retain new counsel.
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
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.]
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."
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.
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.
Jose Soriano Matter - District Docket ...