Opinion
Docket No. DRB 12-025 Docket No. DRB 12-026
07-18-2012
IN THE MATTER OF WILLIAM T. DICIURCIO, II AN ATTORNEY AT LAW IN THE MATTER OF JOHN DAVID DICIURCIO AN ATTORNEY AT LAW
HoeChin Kim appeared on behalf of the Office of Attorney Ethics. Respondents appeared pro se.
Disciplinary Review Board
District Docket No. XIV-2010-0272E
District Docket No. XIV-2010-0273E Decision HoeChin Kim appeared on behalf of the Office of Attorney Ethics. Respondents appeared pro se.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
These matters came before us on recommendations for an admonition filed by the Committee on Attorney Advertising (CAA). The formal ethics complaint charged respondents with having violated RPC 7.1(a) (prohibiting false or misleading communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement), Attorney Advertising Guideline 2(a) (March 2, 2005) (Guideline 2(a)) (requiring the phrase "ATTORNEY ADVERTISEMENT" to be at least two font sizes larger than the largest size used in the advertising text), and Opinion No. 35 of the Committee on Attorney Advertising, 182 N.J.L.J. 792 (November 21, 2005) (Opinion 35) (requiring attorney advertising letter to state: "If you are already represented by counsel in this matter, please disregard this advertisement").
We decided to treat the recommendation for an admonition as a recommendation for greater discipline, pursuant to R. 1:20-15(f)(4). Following oral argument, and for the reasons set forth below, we determine to impose a reprimand on each of the respondents for their misconduct.
Respondent William T. DiCiurcio, II (William DiCiurcio) was admitted to the New Jersey bar in 1987. Respondent John David DiCiurcio (John DiCiurcio) was admitted in 1997. At the relevant times, respondents were partners in a law office in Cherry Hill. Neither respondent has a disciplinary record.
At issue are three solicitation letters sent by respondents, on their firm's letterhead, to individuals who were purportedly charged with making an illegal U-turn (N.J.S.A. 39:4-215), speeding (N.J.S.A. 39:4-98.09), and disorderly conduct (N.J.S.A. 2C:33-2(b)).
N.J.S.A. 39:4-98 does not contain a section ".09." However, the .09 extension may represent the number of miles per hour by which the driver was exceeding the speed limit.
According to the complaint, the first letter, dated November 6, 2007, violated RPC 7.1(a), in that it referred to the possibility of "jail" and the possible loss of the recipient's driver's license for a traffic ticket. In addition, the font size of the words "ATTORNEY ADVERTISEMENT" violated Guideline 2(a) because they were not in a font size two times larger than the largest size used in the text. Finally, the notices prescribed by RPC 7.3(b)(5)(ii) and (iii) violated Guideline 2(a) because they were in a font size smaller than the size used in the text.
The complaint alleged that the second letter, dated June 3, 2008, violated RPC 7.1(a) because it referred to the possibility of "jail" for a traffic ticket. Further, the font size of the words "ATTORNEY ADVERTISEMENT" did not comply with Guideline 2(a) because they were not in text that was two font sizes larger than the largest text used in the letter. Finally, the letter violated Opinion 35 because it did not contain the following required language: "If you are already represented by counsel in this matter, please disregard this advertisement."
The second count of the complaint also referred to a letter dated June 6, 2008. That letter was not admitted into evidence.
The third letter, dated September 2, 2009, also allegedly violated Guideline 2(a) and Opinion 35, for the same reasons that the June 3, 2008 letter violated the guideline and the opinion.
In their answer to the complaint, respondents admitted that all three letters violated Guideline 2(a) and Opinion 35.
A one-day hearing before a CAA panel took place on July 25, 2011. The Office of Attorney Ethics (OAE) presented no witnesses, choosing instead to rely on the letters at issue and correspondence between the CAA and respondents.
The documentary evidence established that, on November 6, 2007, respondents sent a letter to an individual who had received a summons for making an illegal U-turn in East Greenwich Township. The letter stated, in pertinent part:
I will be honored to have the opportunity to speak with you regarding your tickets and how I can attempt to help you Save Points and costly surcharges, avoid possible jail, and Save your drivers [sic] license.
[Ex.P1.]
Under the masthead, the words "ATTORNEY ADVERTISEMENT" appeared in bold-face type. The last sentence of the disclaimer at the bottom of the letter read, in very small print: "In the event you already have an attorney, or have resolved this matter, we thank you for your time."
On February 28, 2008, the CAA wrote to respondents and informed them that a complaint about this letter had been filed with the CAA. The CAA ordered them to "cease and desist using this solicitation letter." Among other things, the CAA pointed out the following improprieties:
Specifically, the Committee found that the letter violates RPC 7.1(a) because its references to "avoid[ing] possible jail" and
"save your drivers [sic] license" are misleading. The offense at issue is failure to obey signals, signs, or directions, and unless extraordinary circumstances exist, which are not mentioned in your letter, jail time or loss of license is not a probable consequence for this offense. In addition, Attorney Advertising Guideline 2 requires that the font size of the notice required by RPC 7.3(b)(5)(iii) must be no smaller than the font size generally used in the advertisement. The font in your letter is too small. Attorney Advertising Guideline 2(a) also requires that the font size of the word "advertisement" at the top of the page must be at least two font sizes larger than the largest size used in the advertising text. The font in your letter is too small.
[Ex.P2.]
The letter advised respondents that no formal action would be taken against them for these violations, if they would take "immediate steps to discontinue use of this solicitation letter" and submit a certification formalizing their agreement to comply with the rules and a copy of a revised solicitation letter.
On July 22, 2008, the CAA sent a follow-up letter to respondents, as it had not received the certification and the revised letter. The CAA letter warned respondents that, in the absence of the certification, formal discipline could be instituted against them.
On July 30, 2008, respondents wrote to the CAA and enclosed "a new advertisement letter," which they had been using "for the past few months." Respondents represented to the CAA that they had made the changes immediately after they had received the CAA's February 28, 2008 letter to them. Attached to their July 30, 2008 letter was an actual solicitation letter, dated June 6, 2008, which, respondents claimed, "addressed the issues" raised by the CAA.
Notwithstanding respondents' representations in their July 30, 2008 letter, another solicitation letter, dated June 3, 2008, was brought to the CAA's attention. The letter stated, in pertinent part: "I will be honored to have the opportunity to speak with you regarding your tickets and how I can attempt to help you Save Points and costly surcharges, and in the most serious offences avoid possible jail and or suspension of your driver's license."
The words "ATTORNEY ADVERTISEMENT" appeared under the masthead. The disclaimer at the bottom of the letter, which was in a font slightly larger than the body of the text, omitted the following sentence: "In the event you already have an attorney, or have resolved this matter, we thank you for your time."
On October 15, 2008, the CAA wrote to respondents, informing them that it had received a complaint about the June 3, 2008 letter and that neither the June 3, 2008 letter nor a June 6, 2008 letter, which was attached to respondents' July 30, 2008 letter to the CAA, complied with the attorney advertising rules. Specifically, the CAA noted that both June 2008 letters mentioned the possibility of jail. Moreover, the June 3, 2008 letter omitted the language required by Opinion 35. The CAA directed respondents to stop using this letter, to certify to the CAA that all future solicitation letters would comply with the advertising guidelines and rules, and to submit a copy of a revised solicitation letter.
As of April 2, 2009, respondents had not replied to the CAA's letter of October 15, 2008. Accordingly, another letter was sent to them on that date, reiterating that neither the June 6, 2008 letter, which was submitted to the CAA as an example of the revised letter, nor the June 3, 2008 letter, which formed the basis of the second complaint filed with the CAA, complied with the rules and regulations governing attorney advertising. The April 2, 2009 letter cautioned respondents that they risked the institution of formal disciplinary proceedings against them, if they did not comply with the requirements set forth in the October 15, 2008 letter.
On April 30, 2009, John DiCiurcio wrote to the CAA, apologizing for the late response and stating that he believed the issues identified in the CAA's October 2008 letter "had been addressed previously" and that a reply had been provided to the CAA. The letter enclosed a copy of the revised solicitation letter, which was in the form of an actual letter, dated April 22, 2009, to an individual charged with a weapons offense.
On June 10, 2009, the CAA wrote to John DiCiurcio and informed him that it had dismissed the matter. The CAA's letter also suggested certain changes to the solicitation letter, such as clarifying that the firm's thirty-six years of experience was a "combined 36 years of experience."
On September 2, 2009, respondents sent a letter to an individual who had been charged with disorderly conduct. The words "Attorney Advertisement" appeared in font that was obviously not in compliance with Guideline 2(a). Also, the disclaimer omitted the language required by Opinion 35. On February 18, 2011, the OAE filed a formal ethics complaint against respondents.
In a March 17, 2011 letter to the CAA, which, the CAA determined, respondents sent before they filed an answer to the complaint, they attempted to explain why their solicitation letters repeatedly failed to comply with Guideline 2(a) and Opinion 35. They wrote:
Please allow this letter to serve as a response to the Committee's Complaint of February 24, 2011 regarding improperly formatted advertising letters sent to prospective new clients by our marketing firm. Preliminarily, we would like to inform the Committee that as of late 2009 we permanently replaced our marketing company and changed our advertising letter to the one attached hereto and marked as exhibit "A". We believe this advertising letter addresses all of the concerns that the Committee referenced in its complaint and, in fact, is the advertising letter we have been using since the later part of 2009.
By way of history, from 2005 thru 2009, our office employed two different direct mail marketing firms to design, research, print and mail advertising solicitations to people who received certain traffic citations and criminal charges. The marketing firms were Courtlist and Courtclerk both of who [sic] were at least partially owned and operate [sic] by licensed New Jersey attorneys. As part of their service, each company utilized in house graphic designers who created for our approval the advertising letters. Whenever an issue would arise regarding our letters not complying with our Rules of Court or Ethics Guidelines we immediately consulted with both Courtlist and Courtclerk requesting that they make the appropriate
changes to our letter to bring it in compliance with our Rules. Since attorneys themselves ran both Courtlist and Courtclerk, we incorrectly assumed that when these changes were made they were sufficient to satisfy the Committee's concerns. Although part of the marketing firm's sales presentation to us was the fact that they knew the rules of conduct regarding advertising and would create appropriate advertising letters, we realize that ultimately it was our responsibility to follow up and verify that the letters were in fact in compliance with our Rules.
While we recognize our responsibility in this matter, we wish to convey to the Committee that we did not prepare, create or send the letters, which would suggest that we simply ignored the Committee's concerns on a daily basis. Each time we received a recent complaint from the committee, we went to our provider which is now only Courtclerk and they have assured us that the letter was changed to reflect the proper font size for the word "ADVERTISEMENT". Moreover, our letter specifies that jail time is possible only in serious cases by placing the phrase that "certain serious matters may result in jail sentence" to address the committees [sic] complaints. In addition, the letter which we [sic] is attached hereto as Exhibit "A" is the same letter that was used by Courtclerk from 2005 thru 2009 who did 80% of our marketing at that time. All of the letters that the Committee referred to in the complaint, on the other hand, were those sent by Courtlist, which we [sic] was used much less frequently and the firm with whom [sic] we no longer use.
It was never the intention of this office to ignore the Committee's concerns in
their previous request to modify our letter. We recognize it was an error on our part to rely on the representations from our marketing firm that the appropriate changes had been made without personally verifying this fact.
Should the Committee need any additional information please let us know as we wish to cooperate with the Committee to conclude this matter.
[Ex.P11.]
In respondents' undated answer to the complaint, they admitted to the Guideline 2(a) and Opinion 35 violations charged in all three counts. They denied that the letters' references to possible jail time and saving drivers' licenses were misleading and, therefore, in violation of RPC 1.7(a). They explained:
[I]n Respondents' experience there are a myriad of ways that a prospective client may be sentenced to jail for even traffic violations. For example, in several municipalities in Atlantic County where Judge Switzer sits, a Defendant will be sentenced to jail for one day for each mile over 100 mph that Defendant is convicted. To illustrate, if a person with no significant driving history admits to traveling 115 mph on the Parkway that person will receive a 15 day County jail sentence. Further Defendants are routinely sentenced to jail for driving while suspended with multiple prior convictions which our office routinely handles as well as jail being sentenced for refusing to pay fines and
other contempt type matters. Respondents overwhelmingly and consistently receives [sic] feedback from prospective clients who appreciate being made aware of the possible consequences of traffic matters and how Respondents can help them. However, it was never Respondents [sic] intention to mislead any prospective clients.
[A, First Count, ¶8(a); A, Second Count, ¶15(a).]
"A" refers to respondents' undated, amended answer to the formal ethics complaint. --------
Although respondents spoke at the ethics hearing, they did not testify. Nevertheless, William DiCiurcio conceded that compliance with the attorney advertising regulations was "not a duty that we can delegate," that respondents were "ultimately responsible" for the content of their letters, and that they "relied too heavily" on their providers to ensure compliance. He also acknowledged that there was "no excuse" for the Opinion 35 required language "not being in there" and that the language "should have been in there."
The CAA found that the November 6, 2007 and the June 3, 2008 letters' references to possible jail time were misleading and, therefore, a violation of RPC 7.1(a). The CAA noted that "jail time is not a probable consequence" for either offense, absent "extraordinary circumstances."
With respect to the November 6, 2007 letter, specifically, the CAA found that it also violated Guideline 2(a) and Opinion 35. The CAA also found that the June 3, 2008 letter violated only Opinion 35 and that the September 2, 2009 solicitation letter violated Guideline 2(a) and Opinion 35.
Prior to reaching its determination on the quantum of discipline for respondents' misconduct, the CAA considered, as a mitigating factor, that they ultimately took responsibility for their misdeeds. In aggravation, the CAA noted that, although respondents had been informed twice that their solicitation letters were non-compliant, they continued to mail letters that violated the regulations.
The CAA recommended that respondents be admonished.
Following a de novo review of the record, we are satisfied that the CAA's finding that respondent's conduct was unethical is fully supported by clear and convincing evidence.
RPC 7.1(a) prohibits a lawyer from making "false or misleading communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement." That rule further provides:
A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
(3) compares the lawyer's service with other lawyers' services[.]
The rule also governs statements about certain kinds of legal fees.
RPC 7.3(b)(5)(i) requires solicitation letters to have "the word 'ADVERTISEMENT' prominently displayed in capital letters at the top of the first page of text and on the outside envelope, unless the lawyer has a family, close personal, or prior professional relationship with the recipient." Guideline 2(a) standardizes the size of the text to ensure that it meets the "prominently displayed" requirement of RPC 7.3(b)(5)(i), by mandating that the word "ADVERTISEMENT" be "at least two font sizes larger than the largest size used in the advertising text."
Opinion 35 requires solicitation letters to contain the following language within the text of the letter in the same font size: "If you are already represented by counsel in this matter, please disregard this advertisement."
As stated previously, respondents admitted that all three letters violated the requirements of Guideline 2( a) and Opinion 35. With one exception, the CAA agreed. Without explanation, the CAA found that the June 3, 2008 letter did not violate Guideline 2 (a).
Although there was no evidence presented that identified the size of the font used in the text of the June 3, 2008 letter and the size of the font used for the words "ATTORNEY ADVERTISEMENT," undoubtedly the size of the words violated Guideline 2( a). The words "ATTORNEY ADVERTISEMENT" are obviously no larger, or not much larger, than the words that appear next to the bullet marks at the end of the letter. Thus, we find that all three letters violated Opinion 35 and Guideline 2 (a).
As to the RPC 7.1(a) violation, the OAE asserted that the November 6, 2007 letter's reference to possible jail time for a minor motor vehicle violation (illegal U-turn) was misleading advertising because incarceration "is not a stated possibility in sentencing." While this may be the case in practice, the language of the statute is to the contrary. N.J.S.A. 39:4-215 provides:
Any person who fails to obey the directions of a police officer or fails to obey the directional signals or signs provided hereunder shall be subject to a fine of not more than one hundred dollars ($100.00) or imprisonment for ten days in jail, or both.
The November 6, 2007 letter referred only to the possibility of jail. The plain language of the statute demonstrates that, if one is convicted of making an illegal U-turn, incarceration is a possibility. There is no evidence supporting the OAE's claim that incarceration "is not a stated possibility in sentencing." In the absence of that proof, we are unable to agree with the CAA's finding that respondents' November 6, 2007 letter violated RPC 7.1(a).
The CAA did not address the allegation that the November 2007 letter's reference to "[s]ave your drivers [sic] license" violated RPC 7.1(a). Yet, this claim in the letter did violate the rule. N.J.S.A. 39:4-15 contains no reference to the loss of one's driver's license as a possible consequence to making an illegal U-turn. Thus, the suggestion in the letter that respondents could "attempt to help" the recipient save his or her driver's license is misleading and, therefore, a violation of RPC 7.1(a).
We are also unable to agree with the CAA's finding that respondents' reference to the possibility of incarceration for speeding was misleading. Incarceration is a possibility for speeding. N.J.S.A. 39:4-104 provides:
A person violating a section of this article shall, for each violation, be subject to a fine of not less than $50.00 or more than $2 00.00, or imprisonment for a period not exceeding 15 days, or both, except as herein otherwise provided.
Moreover, N.J.S.A. 39:5-31 permits a court to revoke the license of the guilty party if the traffic violation was "willful."
To conclude, respondents' November 2007 letter violated RPC 7.1(a)(1). In addition, the November 2007 and September 2009 letters violated Guideline 2(a). Finally, the November 2007, June 2008, and September 2009 letters violated Opinion 35.
There remains for determination the appropriate measure of discipline for respondents' violations of RPC 7.1(a)(1), Guideline 2(a), and Opinion 35.
Admonitions are typically imposed on attorneys whose solicitation communications fail to include the word "ADVERTISEMENT." See, e.g., In the Matter of Jay Edelstein, DRB 03-092 (May 22, 2003) (admonition for omission of the word "ADVERTISEMENT" from a single solicitation letter, as well as other notifications required by RPC 7.3(b)(5); the attorney wrote the letter after a third party had informed him that the recipient was involved in a motor vehicle accident and suggested that the attorney "drop [him] a line;" in mitigation, we found that the attorney's conduct was distinguishable from that of attorneys who sent targeted direct mail solicitation letters to numerous individuals containing statements that were false or otherwise improper; the attorney also committed a "technical violation" of the bona fide office rule, which did not warrant additional discipline) and In the Matter of Brad J. Spiller, DRB 97-262 (October 28, 1997) (admonition for a targeted direct-mail solicitation letter prepared by an independent contractor that did not have the word "ADVERTISEMENT" prominently displayed in capital letters on the top of the first page of the text and on the face of the envelope; the letter also failed to point out the "downside" of bankruptcy or available alternatives; violations of former RPC 7.3(b)(4)(i), RPC 7.1(a)(1), and RPC 5.3(a)).
Because an admonition is the measure of discipline imposed on attorneys whose solicitation letters fail to include the word "advertisement," an admonition is also sufficient discipline for a letter that contains the word "ADVERTISEMENT" not in a size required by Guideline 2(a). Moreover, by analogy, an admonition is sufficient discipline for respondents' failure to include the Opinion 35 language in the solicitation letters.
As to misleading statements in direct mail solicitation communications, attorneys who have done so have typically received admonitions or reprimands. See, e.g., In the Matter of Ernest H. Thompson, Jr., DRB 97-054 (June 5, 1997) (admonition for misleading statements in a targeted direct mail solicitation flyer sent to an individual whose residence was about to be sold at a sheriff's sale); In the Matter of Bryan R. Ferrick, DRB 97-307 (October 28, 1997) and In the Matter of Ronald Kurzeja, DRB 97-308 (October 28, 1997) (companion cases) (admonition for targeted direct mail solicitation letters sent to New Jersey residential property owners that contained three separate misleading statements, contrary to RPC 7.1(a), in addition to two statements that violated other provisions of the rule); In re Anis, 126 N.J. 448 (1992) (reprimand imposed on attorney who, in violation of RPC 7.3(b)(1), wrote a solicitation letter to the parents of a victim of the 1988 Pan American Flight 103 terrorist bombing over Lockerbie, Scotland, at a time when he "knew or should have known that they could not exercise reasonable judgment about in employing an attorney;" the letter was sent to the parents the day after their son's remains were identified and fewer than two weeks after the incident; the letter misrepresented that the attorney was experienced in litigating aircraft accidents and falsely implied that other attorneys routinely charged a one-third contingent fee in certain matters, despite the graduated fee provisions of 1:21-7); and In re Caola, 117 N.J. 108 (1989) (reprimand imposed on attorney who sent a targeted direct-mail solicitation letter misrepresenting the number of years he was in practice, his status in the law firm, and the number and types of cases he handled).
In the absence of aggravating factors, respondents' overall conduct would warrant no more than an admonition, as it was mostly limited to violations of rules governing font size and disclaimer language. Respondents did not target victims of horrific tragedies or misrepresent their credentials and experience (with the exception of their combined years of practice). However, there are aggravating factors that call for the imposition of greater discipline, namely, respondents' repeated failure to correct the violations in the letters. Specifically, the CAA notified respondents, in February 2008, that the November 2007 letter violated RPC 7.1(a) and Guideline 2(a) and ordered them to cease and desist using that letter. The letter directed respondents to revise the letter and to submit it to the CAA for its review.
Upon the CAA's prompting, on July 30, 2008, respondents submitted a revised solicitation letter, which was a copy of one that had actually been sent to a prospective client on June 6, 2008. Shortly thereafter, the CAA received a complaint about a solicitation letter that respondents had mailed on June 3, 2008.
On October 15, 2008, the CAA notified respondents of the violations in both June 2008 letters, which included the continued reference to "possible jail" and the omission of the required Opinion 35 language. The CAA sent a follow-up letter to respondents on April 2, 2009.
Notwithstanding respondents' April 30, 2009 claim to the CAA that they had complied with the CAA's directives, they continued to send letters that violated Guideline 2(a) and Opinion 35, as evidenced by the letter dated September 2009, which was more than a year-and-a-half after the CAA first approached respondents about the content of their solicitation letters.
Respondents claimed that they utilized the services of independent contractors, who assured them of their expertise in compliance issues. Although it was not entirely unreasonable for respondents to rely on those contractors to get the letters right, respondents themselves acknowledged that their duty to comply with the rules and guidelines governing attorney advertising may not be delegated. Moreover, after the CAA brought the compliance problems to respondents' attention -- not once, but twice -- they continued to rely on the contractors to bring the letters in line with the rules and regulations. Their failure to take control of the content of the letters resulted in continuous violations of RPC 7.1(a), Guideline 2(a), and Opinion 35 for almost two years. In our view, this justifies the imposition of a reprimand on each respondent.
Member Jeanne Doremus did not participate.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.
Disciplinary Review Board
Louis Pashman, Chair
By:/s/_________
Julianne K. DeCore
Chief Counsel
VOTING RECORD
Argued: March 15, 2012 Decided: July 18, 2012 Disposition: Reprimand
| Members | Disbar | Suspension | Reprimand | Dismiss | Disqualified | Did notparticipate |
|---|---|---|---|---|---|---|
| Pashman | X | |||||
| Frost | X | |||||
| Baugh | X | |||||
| Clark | X | |||||
| Doremus | X | |||||
| Gallipoli | X | |||||
| Wissinger | X | |||||
| Yamner | X | |||||
| Zmirich | X | |||||
| Total: | 8 | 1 |
/s/_________
Julianne K. DeCore
Chief Counsel
VOTING RECORD
Argued: March 15, 2012 Decided: July 18, 2012 Disposition: Reprimand
| Members | Disbar | Suspension | Reprimand | Dismiss | Disqualified | Did notparticipate |
|---|---|---|---|---|---|---|
| Pashman | X | |||||
| Frost | X | |||||
| Baugh | X | |||||
| Clark | X | |||||
| Doremus | X | |||||
| Gallipoli | X | |||||
| Wissinger | X | |||||
| Yamner | X | |||||
| Zmirich | X | |||||
| Total: | 8 | 1 |
/s/_________
Julianne K. DeCore
Chief Counsel