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In re Morrissey

Supreme Court of New Jersey

May 6, 2019

In the Matter of Bruce C. Morrissey An Attorney At Law

          Argued: January 17, 2019

         District Docket No. IIA-2016-0024E

          Andrew R. Macklin appeared on behalf of the District IIA Ethics Committee. Respondent appeared pro se.

          Ellen A. Broosky Chief Counsel



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

         This matter originally was before us on a recommendation for an admonition filed by the District IIA Ethics Committee (DEC), which we determined to treat as a recommendation for greater discipline, in accordance with R. 1:20-15(f)(4). The complaint charged respondent with violations of RPC 1.4(c) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation), RPC 1.5(b) (failure to communicate, in writing, the basis or rate of the fee), and two instances of violating RFC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). For the reasons expressed below, we determine to impose a reprimand.

         Respondent was admitted to the New Jersey bar in 1976. He maintains a law office in Englewood Cliffs, New Jersey. He has no history of discipline.

         In 2010, grievant Bruce Manalio, a retired pharmacist, retained respondent to pursue tax assessment appeals on a multi-use commercial building that he owned through his company, Laurel Associates, LLC, in the Borough of Bogota (the Borough). According to respondent, although he had handled between 175 and 200 property tax appeals, the majority were for residential properties. He had handled only five or six commercial tax appeals during the relevant period.

         Although respondent did not provide Manalio with a written retainer agreement, they agreed to a contingent fee, whereby Manalio would pay respondent one-third of any tax savings or recovery. Respondent claimed that he believed no agreement was necessary. He conceded, however, that because he had not previously represented Manalio, he should have reduced their agreement to writing.

         Manalio denied that he was aware or his financial responsibilities in connection with the representation. Other than his knowledge about the contingent fee, he did not know whether he would be charged an hourly rate if the matters proceeded to trial, or who would bear the expense of an expert witness.

         Initially, respondent had been retained to challenge Manalio's 2010 taxes. If relief had been granted, it would have carried into 2011 and 2012 under the Freeze Act, N.J.S.A. §54:3-26, barring a revaluation.[1] Respondent explained his understanding of the tax appeals procedures: he believed that an appeal initially is filed with the Bergen County Board of Taxation (Tax Board), if the matter is not resolved satisfactorily or if the assessment is affirmed without prejudice (AWOPed), then an appeal must be filed with the New Jersey Tax Court (Tax Court) within forty-five days.

         On Manalio's behalf, respondent (1) timely filed a 2010 appeal with the Tax Board, which affirmed the 2009 assessment without prejudice, then he timely appealed the decision to the Tax Court; (2) filed a 2011 appeal to the Tax Board, but did not appeal it to the Tax Court; (3) filed a 2012 appeal to the Tax Board, but did not file an appeal to the Tax Court; (4) did not file any form of appeal for 2013, asserting a belief that he could not do so because of a revaluation that occurred that year; (5) filed a 2014 appeal to the Tax Board, but did not appeal it to the Tax Court; and (6) filed a 2015 appeal to the Tax Board, and filed an appeal to the Tax Court, which contested the assessments for years 2010, 2011, 2012, 2014 and 2015. For each of the years, the Tax Board had affirmed the assessments without prejudice.

         Respondent conceded that the 2015 appeal would not have revived the 2014 assessment because it was filed more than forty-five days after the AWOP. Although he admitted that he had not explained that point to Manalio, respondent maintained that he had sent Manalio a copy of the 2015 appeal, and that Manalio "wasn't bashful about asking questions."

         Respondent had not filed Tax Court appeals for the years 2011, 2012, and 2014 because, he claimed, such appeals were not required based on an informal understanding with the Borough attorneys that the appeals would be deemed AWOPed, his client's rights would be preserved, and the matters would be reviewed by the Tax Court without a Tax Court filing. Respondent conceded that, in hindsight, he should have filed a Tax Court appeal each year.

         At the ethics hearing, the new Borough attorney, Craig Bossong, testified that, in 2015, he took the position that appeals had to be filed with the Tax Court each year, contrary to an alleged informal agreement. Respondent did not notify Manalio of Bossong's position, but, thereafter, as noted above, he filed an appeal with the Tax Court for only 2015 because he was precluded from doing so for the years 2011, 2012, and 2014 as untimely.

         Further, Bossong testified that he had significant experience in tax appeal matters. He served as the municipal attorney for the Borough since 2015, and as the attorney for the Borough of Waldwick. Bossong's practice concentrated on municipal government work, property tax appeals, land use, and zoning law, and he represented land use boards. As of the date of the DEC hearing, he had been involved in approximately 1, 000 tax appeals. Contrary to respondent's claim, and based on his experience, Bossong was not aware of any industry standard whereby a property owner's rights were preserved without a direct appeal filed with the Tax Court. He explained that an appeal must be filed to preserve the right for a reduction for the year under consideration. Under the Freeze Act, any settlement or judgment in 2010 would have protected only two years - 2011 and 2012.

         When Bossong assumed the role as Borough attorney, he met with the tax assessor and the Borough's expert to review the outstanding tax appeals. The Laurel Associates' file contained an appeal only for 2010 and notes from predecessor counsel about settlement negotiations involving years where no appeals to the Tax Court had been filed. Other than 2010, no other years were "in play" until respondent filed an appeal for 2015.

         According to Bossong, even though respondent informed him that other appeals had been filed, he supplied Bossong only with documentation for appeals to the Tax Board for years 2011, 2012, and 2013, [2] which had been AWOPed. Bossong confirmed that, because respondent had not filed appeals with the Tax Court, other than for 2010, no relief was available for 2011, 2012, 2013, or 2014. Respondent never divulged that information to Manalio.

         Bossong noted that, in 2013, a Borough-wide revaluation took place. Just as in a non-revaluation year, an appeal was required. According to Bossong, typically, the number of appeals filed in revaluation years ...

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