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In re Boyd

Supreme Court of New Jersey

June 18, 2018


          Argued: March 15, 2018

         District Docket No. VA-2Q16-0010E

          Carla M. Silva appeared on behalf of the District VA Ethics Committee.

          Respondent appeared pro se.



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

         This matter was before us on a disciplinary recommendation for an admonition filed by the District VA Ethics Committee (DEC). We determined to treat the matter as a recommendation for greater discipline, in accordance with R. l:20-15(f) (4). The three-count formal ethics complaint charged respondent with violating RPC 1.5(b) (failure to communicate in writing the rate or basis of the fee, specifically, by failing to comply with R. 5:3-5 (a)) (count one), - RFC 1.16(c) (failure to comply with applicable law when terminating a representation, specifically, by failing to comply with R. 5:3-5(d)) (count two); and RPC 1.3 (lack of diligence) (count three).

         For the reasons set forth below, we determine to impose a reprimand.

         Respondent earned admission to the New Jersey bar in 1996. During the relevant time frame, she maintained an office for the practice of law in Newark, Essex County, New Jersey. She has no disciplinary history.

         We turn to the facts of this case. On November 19, 2013, the grievant, Raquele Strickland (then known as Raquele Strickland-Dale), retained respondent to represent her in divorce proceedings. Respondent and Strickland executed a retainer agreement that set forth the scope of services and respondent's hourly rate, and provided for billing at regular intervals; the agreement further required the advance payment of $1, 000 for all court appearances. Strickland paid respondent a $2, 500 retainer, via three installments.

         The Family Court Rules, including R. 5:3-5(a) (5), govern retainer agreements in matrimonial matters. That Rule requires' retainer agreements to include provisions regarding

when bills are to be rendered, which shall be no less frequently than once every ninety days, provided that services have been rendered during that period; when payment is to be made; whether interest is to be charged, provided, however, that the running of interest shall not commence prior to thirty days following the rendering of the bill; and whether and in what manner the initial retainer is required to be replenished[.]

         On November 18, 2014, respondent and Strickland attended an early settlement panel proceeding in the Superior Court of New Jersey, Middlesex County. There, Strickland and her spouse negotiated a settlement agreement, which was placed on the record, and the Honorable Lisa M. Vignuolo entered a Final Judgment of Divorce. The Final Judgment, however, required the parties to submit an Amended Judgment, within ten days, setting forth the terms of the settlement agreement, and further provided that "counsel of record are not released from representation of the parties until such time as the Amended Judgment incorporating the terms of the settlement has been filed with the Court."

         That same date, respondent informed Strickland that the $2, 500 retainer had been exhausted and required replenishing. Strickland did not provide respondent with additional funds.

         As of December 22, 2014, more than one month after the entry of the Final Judgment, the parties still had not submitted the Amended Judgment to the court. Upon respondent's request, the court granted the parties additional time to do so. Respondent arranged a February 11, 2015 meeting of the parties and prepared the Amended Judgment and a Property Settlement Agreement (PSA), which the parties and counsel executed at that meeting. Thereafter, respondent refused to file the Amended Judgment, because she was not willing to perform additional work for Strickland without receiving additional fees. Respondent, however, did not seek to be relieved as counsel for Strickland. At the ethics hearing, respondent testified that submitting a motion to be relieved as counsel would have been "futile," because the court would have denied it.

         Rule 5:3-5(d), which governs the termination of an attorney's representation in a matrimonial matter, provides, in relevant part

(1) An attorney may withdraw from representation ninety (90) days or more prior to the scheduled trial date on the client's consent in accordance with R. 1:11-2 (a) (1). If the client does not consent, the attorney may withdraw only on leave of court as provided in subparagraph (2) of this rule.
(2) Within ninety (90) days of a scheduled trial date, an attorney may withdraw from a matter only by leave of court, on motion with notice to all parties .• The motion shall be supported by the attorney's affidavit or certification setting forth the reasons for the application and shall have annexed the written retainer agreement. In deciding the motion, the court shall consider, among other relevant factors, the terms of the written retainer agreement and whether either the attorney or the client has breached the terms of that agreement; the age of the action; the imminence of the scheduled trial; the complexity of the issues? the ability of the client to timely retain substituted counsel; the amount of fees already paid by the client to the attorney; the likelihood that the attorney will receive payment of any balance due under the retainer agreement if the matter is tried; the burden on the attorney if the withdrawal application is not granted; and the prejudice to the client or to any other party.

         Between the November 2014 hearing and April 2015, Strickland called respondent more than ten times, requesting that respondent provide an itemized bill and that she file the Amended Judgment and the PSA with the court. In a March 30, 2015 letter, Strickland requested respondent to file the Amended Judgment and the PSA with the court. Respondent, however, neither sent Strickland an itemized bill nor filed the divorce papers with the court. According to Strickland, respondent failed to provide her with any monthly billings or invoices in 2013 or 2014.

         On April 29 and May 1, 2015, in response to Strickland's written requests, respondent represented that she would send Strickland an itemized bill, but, both times, failed to do so. At the ethics hearing, Strickland testified that respondent finally sent her an itemized bill, in October 2016, which did not appear to credit the $2, 500 retainer, and reflected a balance owed of $9, 359.60. Respondent conceded having sent the bill late, but blamed the delay on issues with her accounting software and the pressures of her practice. In May 2017, respondent provided the DEC hearing panel with an amended bill that purportedly credited the $2, 500 retainer.

         Ultimately, in June and November 2015, Strickland filed pro se motions with the court to conclude the divorce proceedings. Despite her efforts, Strickland's divorce was not finalized until January 2017, more than two years after the entry of the Final Judgment.

         The DEC determined that respondent violated RPC 1.5(b) by failing to provide Strickland with itemized billings as required in a matrimonial matter, pursuant to R. 5:3-5(a). Although respondent claimed that, in November 2014, the $2, 500 retainer had been exhausted, respondent failed to provide an itemized bill in support of that position until October 2016, despite multiple requests from the client.

         Next, the DEC found that respondent violated RPC 1.16(c). Specifically, the DEC determined that respondent, due to her fee dispute with Strickland, ceased representing her client without first having obtained an order relieving her as counsel, as required in a matrimonial matter, pursuant to R. 5:3-5(d). She, thus, failed to comply with applicable law and, instead, unilaterally and improperly terminated the representation.

         Finally, the DEC determined that respondent violated RPC 1.3, by failing to file the executed Amended Judgment and the PSA, documents that she had exclusively possessed, since February 11, 2015, and that she was required to file with the court to complete the divorce. The DEC found that respondent refused to make the filings, due solely to her fee dispute with Strickland.

         In mitigation, the DEC considered that respondent had no prior discipline; cooperated with ethics authorities; did not commit the misconduct for personal gain; could not finance respondent's case due to her own financial obligations; and took remedial measures to improve her billing processes. The DEC found no aggravating factors.

         The DEC recommended that respondent receive an admonition.

         Following a de novo review, we are satisfied that the record clearly and convincingly establishes that respondent was guilty of unethical conduct. Specifically, we determine that respondent violated RPC 1.3, RPC 1.16(c), and RPC 1.5(b). We ...

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