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In re Wladyka

Supreme Court of New Jersey

February 28, 2019

In the Matter of Agnes S. Wladyka

         District Docket No. XIV-2016-0360E

          BONNIE C. FROST, ESQ., CHAIR BRUCE W. CLARK, ESQ., VICE-CHAIR PETER J. BOYER, ESQ. HON. MAURICE J. GALLIPOLI THOMAS J. HOBERMAN REGINA WAYNES JOSEPH, ESQ. EILEEN RWERA ANNE C. SINGER, ESQ. ROBERT C. ZMIRICH

          ELLEN A. BRODSKY CHIEF COUNSEL MELISSA URBAN DEPUTY COUNSEL TIMOTHY M. ELLIS LILLIAN LEWIN BARRY R PETERSEN, JR COLIN T. TAMS KATH RYN ANNE WINTERLE ASSISTANT COUNSEL

         CORRECTED LETTER

         Dear Ms. Baker:

         The Disciplinary Review Board reviewed the motion for discipline by consent (reprimand or such lesser discipline as the Board deems appropriate) filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-10(b). Following a review of the record, the Board determined to grant the motion.

         In the Board's view, a reprimand is the appropriate measure of discipline for respondent's violations of RPC 1.1(a) (gross neglect), RPC 1.5(b) (failure to set forth in writing the rate or basis of a legal fee), and RPC 1.15(d) and R.1:21-6(a)(2) (recordkeeping violations; attorney fees must be deposited in an attorney business account).

         Specifically, in 1999, respondent assumed the representation of a seventy-four-year-old client, "J.D." J.D. resides in her own home, is widowed, and has no children. She receives social security, a pension, and a monthly annuity. Respondent was introduced to J.D. by Catherine Picut-Parker, who had been J.D.'s designated attorney-in-fact and healthcare proxy prior to Picut-Parker's departure from the State.

         Respondent conceded that, once retained, she failed to set forth the rate or basis of her fee in writing. Rather, she and J.D. had an oral agreement that respondent would be paid for legal fees after J.D.'s death, at which time respondent would serve as executor of J.D.'s estate. Although respondent kept billing records over the course of the representation, she never submitted invoices to J.D. for payment and, thus, fees accumulated from 1999 through April 2015.

         Picut-Parker had given respondent copies of previously prepared documents, including a power of attorney, and a last will and testament that named a church in Italy as J.D.'s sole beneficiary. On December 31, 1999, J.D. executed a new general power of attorney naming respondent as her attorney-in-fact.

         About seven years later, on November 22, 2007, J.D. executed a new will, naming respondent as executor and the Philharmonic-Symphony Society of New York, Inc., as her sole beneficiary.

         On April 15, 2015, respondent and J.D. met to discuss the representation, after which respondent memorialized their meeting in a letter. J.D. believed that respondent should no longer wait to be paid for her work because she was devoting much more time to J.D.'s representation than either of them had anticipated. Under their new agreement, J.D. immediately gave respondent a $ 15, 000 retainer against past and future services. Respondent's billing rate for attorney fees was set at $300 per hour, while non-attorney services were to be billed at an unspecified, reduced rate. Respondent stipulated that her failure to provide J.D. with a writing setting forth the basis or rate of her fees for attorney and non-attorney time violated RPC 1.5(b).

         In April 2015, respondent used J.D.'s power of attorney to retain a contractor, Fazal Ray Mohamed, and his company, "Rite Temp," for construction and repairs to the house. Mohamed was selected because he was the husband of Tina Rodriguez, J.D.'s home health aide.

         The initial contract called for the removal of asbestos-containing tiles in the kitchen. Respondent did not seek estimates from any other contractors before awarding the job to Mohamed. After the work was completed, respondent retained Mohamed during the period between April and October 2015 for subsequent alterations to the home's natural gas, plumbing, air conditioning, and heating systems. She failed to obtain estimates for each subsequent job. Respondent stipulated that she disbursed J.D.'s funds to Mohamed and Rite Temp "without any analysis or consideration of the reasonableness of the charges." All of the ...


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