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In re Bakhos

Supreme Court of New Jersey

March 5, 2019

In The Matter Of Bassel Bakhos An Attorney At Law

          Argued: November 15, 2018

         District Docket No. XIV-2016-0612E

          Reid Adler appeared on behalf of the Office of Attorney Ethics.

          Respondent waived appearance for oral argument.

          DECISION

          Board 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 censure, filed by the District XIII Ethics Committee (DEC). The three-count complaint charged respondent with the following violations: three counts of RPC 1.1(a) (gross neglect); three counts of RPC 1.1(b) (pattern of neglect);[1] three counts of RPC 1.3 (lack of diligence); three counts of RPC 1.4(b) (failure to communicate with the client); three counts of RPC 1.16(a)(2) (failure to withdraw from the representation); two counts of RPC 3.3(a)(1) (lack of candor toward a tribunal); one count of RPC 3.3(a)(5) (failure to disclose a material fact to a tribunal); one count of RPC 3.4(d) (failure to make reasonably diligent efforts to comply with legally proper discovery requests from an opposing party); one count of RPC 4.1(a)(1) (false statement of material fact or law to a third party); two counts of RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and three counts of RPC 8.4(d) (conduct prejudicial to the administration of justice).

         For the reasons set forth below, we determined to impose a censure.

         Respondent was admitted to the New Jersey and Maryland bars in 2002, to the District of Columbia bar in 2004, and the New York bar in 2010. He has no history of discipline in New Jersey.

         At the time of the underlying events, respondent was a senior associate with the law firm of Kaufman, Borgeest & Ryan, LLP (KBR) in Parsippany, New Jersey. At the outset of the hearing in this matter, respondent, through counsel, stipulated to all of the facts and allegations of the complaint. Therefore, the hearing was held solely for presenting mitigation. The facts are as follows.

         Count One: Jerkins v. Voorhees Pediatric Facility, et. al.

         On September 13, 2016, respondent filed a certification with the Superior Court of New Jersey, admitting the following misconduct in the course of his representation of defendant Voorhees Pediatric Facility (Voorhees), in the above matter. Subsequently, on September 30, 2016, the Honorable James P. Savio, J.S.C., sent a letter to the Office of Attorney Ethics (OAE), documenting respondent's conduct during a June 27, 2017 proceeding before him, and enclosing respondent's September 13, 2016 certification. In his letter to the OAE, Judge Savio reported that respondent made false representations to the court.

         Specifically, on November 14, 2015, the plaintiff, Jerkins, served respondent with the October 22, 2015 expert report of Barbara Darlington, RN, MS, ANP, LNHA, supporting his claims against Voorhees. Two days later, on November 16, 2015, Jerkins served respondent with the November 16, 2015 expert report of Steven E. Swartz, MD, FACS, in additional support of his claims against Voorhees. Respondent did not send a copy of either expert report to Voorhees.

         A trial in the matter was scheduled for April 28, 2016, but respondent failed to inform Voorhees of the trial date. On April 28, 2016, the court granted co-defendant Peter Turner, MD, an adjournment of the trial date to June 27, 2016. Respondent did not notify Voorhees that the trial had been adjourned, that he had consented to Turner's request for an adjournment, or that the court had scheduled a new trial date.

         On June 17, 2016, respondent attended the deposition of Jerkins' expert, Robert J. Lerer, MD. On June 22, 2016, respondent requested an adjournment of the June 27, 2016 trial date, which the court denied. On June 24, 2016, respondent attended the deposition of Dr. Turner's expert, Kimberly Kulchinski, MD. Respondent failed to notify Voorhees of any of these events.

         On June 27, 2016, respondent appeared for a trial call but, had not notified Voorhees. Respondent admitted that, through the date of the trial call, he had represented to Voorhees that the Jerkins matter was still in the early stages of discovery.

         Because respondent was not prepared for the trial, at the June 27, 2016 trial call, he asked Judge Savio for an adjournment, which was denied. Instead, Judge Savio informed the parties that a jury would be empaneled if the matter were not resolved or submitted to binding arbitration. Respondent did not so notify Voorhees. He also misled the court into believing that he would contact Voorhees to seek authority for binding arbitration.

         The plaintiff agreed to submit the matter to binding arbitration, if Voorhees consented to a high-low agreement between $450,000 and $1,500,000, and Voorhees agreed to pay the entire award.[2] Respondent did not have the authority from Voorhees to consent to the terms of any such binding arbitration or to settle the matter; yet, he misrepresented to the court that Voorhees had agreed to the terms of the binding arbitration.

         Additionally, respondent misrepresented to John Mullahy, Esq., his attorney supervisor and a partner at KBR, that the Jerkins matter was in the early stages of discovery. During a review of respondent's cases, Mullahy learned that respondent had entered into an agreement to dismiss the case, and proceeded to arbitration with a high-low agreement, without the permission of KBR or the client. Consequently, KBR filed a motion on behalf of Voorhees to vacate the settlement agreement, which was granted. KBR submitted certifications from the client confirming that respondent had not notified Voorhees that he had entered into a settlement agreement with plaintiff.

         In his September 13, 2016 certification to the court, respondent advanced a belief that his mental health issues had affected his ability to function, and had led him to neglect his professional responsibilities in this matter. Despite knowing that his condition impaired his ability to ...


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