Opinion
Docket No. DRB 14-009
06-24-2014
IN THE MATTER OF JEFFREY R. POCARO AN ATTORNEY AT LAW
Glen J. Vida appeared on behalf of the District XII Ethics Committee. Respondent appeared pro se.
Disciplinary Review Board District Docket No. XII-2012-0039E Decision Glen J. Vida appeared on behalf of the District XII 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 recommendation for a three-month suspension filed by the District XII Ethics Committee (DEC). The five-count complaint charged respondent with having violated RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), RPC 1.4, presumably (b) (failure to communicate with a client), RPC 1.5, presumably (b) (failure to provide a client with a writing setting forth the basis or rate of the fee), RPC 3.2 (failure to expedite litigation), RPC 8.4(c) (misrepresentation), and RPC 8.4(d) (conduct prejudicial to the administration of justice). For the reasons expressed below, we concur with the DEC's recommendation for a three-month suspension.
Respondent was admitted to the New Jersey bar in 1982. He maintains a law office in Fanwood, New Jersey.
In 1995, respondent received a one-year suspension for violating RPC 8.4(b) (criminal conduct) and RPC 8.4(c) (misrepresentation). There, he misrepresented that a racehorse was not encumbered by a bank lien, in order to obtain a loan for a client through a "sale lease back" transaction. In re Pocaro, 142 N.J. 423 (1995). A federal complaint charged respondent with a "scheme to defraud another person by use of interstate wire," 18 U.S.C. 1343, whereupon respondent entered into a "deferred prosecution program." As part of the deferred prosecution agreement, respondent was required, among other things, to repay funds to his client, report the matter to the Office of Attorney Ethics and, if so directed by the U.S. Pretrial Services Office, to continue participation in Gamblers' Anonymous. Respondent blamed his compulsive gambling for engaging in the conduct "to reduce the 'crushing debt burden that the disease had brought about.'" Mitigating factors advanced by respondent were his financial burden and the measures he had taken to combat his gambling problem. He was reinstated to the practice of law in December 1996. In re Pocaro, 146 N.J. 576 (1996).
In 2006, respondent was censured for misconduct in a civil rights action, which took place in late 1990. He was found guilty of gross neglect, lack of diligence, failure to expedite litigation, and failure to communicate with his client. In imposing discipline, we considered that, once respondent's employer was suspended from the practice of law, respondent was left with the responsibility of overseeing 400 cases; that only one client matter had been involved; that he admitted his wrongdoing; and that he appeared truly remorseful for his conduct. In re Pocaro, 187 N.J. 411 (2006).
In 2013, respondent received another censure for requesting that his adversary in a lawsuit withdraw the ethics grievance filed against him, in exchange for refraining from instituting a defamation action against the adversary's client. We determined that the censure was warranted by respondent's significant ethics history and his propensity to violate the Rules of Professional Conduct. In re Pocaro, 214 N.J. 46 (2013).
This case involves respondent's representation of Trudy Miranda, whose horse was injured while being trained. Although respondent filed a lawsuit against the trainer, thereafter he failed to properly handle the case. The Honorable Peter A. Buchsbaum, J.S.C., dismissed the plaintiff's case, without prejudice, upon respondent's failure to produce Miranda's expert witness for a hearing.
At the DEC hearing, following Miranda's successor attorney's testimony, respondent withdrew "his plea of not guilty" to the five counts of the complaint and offered mitigating circumstances. Miranda, thus, did not have an opportunity to testify. Respondent told the hearing panel that he intended to go through "each line [of the complaint] line by line with an explanation, and then, for lack of a better term, throw myself at the mercy of the panel." He did not, however, admit all of the allegations of the complaint. Only respondent and Miranda's new attorney, William Berman, testified at the hearing.
Prior to the DEC hearing, the parties had entered into a stipulation of facts, as follows:
In January 2011, Miranda retained respondent to recover damages from Cesar Parra, a horse trainer, for "mis-training" and injuring a stallion. Respondent admitted, both in the stipulation and at the DEC hearing, that he did not provide Miranda with a signed "written retainer," thereby violating RPC 1.5(b).
On June 13, 2011, respondent filed a complaint on Miranda's behalf, in Hunterdon County Superior Court. He admitted that he neither served any non-party deposition notices nor interviewed any witnesses, despite having named them in Miranda's answers to interrogatories. He spoke to three expert witnesses, but not to any non-expert witnesses.
On July 24, 2012, the court dismissed Miranda's complaint, without prejudice, for failure to produce an expert's testimony. As a condition to reinstating it, the court ordered respondent to pay compensatory fees to defense counsel and defense experts.
At the August 6, 2013 DEC Rearing, respondent revealed that he had not yet paid the court-ordered sanction. Therefore, Miranda's matter remained dismissed without prejudice.
According to respondent, Miranda had signed a "pre-release" agreement that prohibited her from suing Parra, if her horse were injured while Parra trained it. As seen below, respondent and Miranda each took credit for discovering case law that permitted the filing of such a suit.
Although defendant Parra filed a counterclaim, respondent failed to propound interrogatories or seek other discovery on the counterclaim. He contended that, after Parra filed the answer and counterclaim, in early May 2012, the judge prohibited any further discovery extensions beyond May 17, 2012. The transcript of the July 24, 2012 hearing before Judge Buchsbaum, however, establishes the contrary, that is, the judge would have entertained motions to extend discovery. The judge stated to Miranda:
I am concerned with a number of anomalies in this case . . . . [W]hen the Court denied a further extension of discovery past May seventeenth, it did so only because no schedule was provided. It was a simple matter at that point to — and I have had it happen tens of times, for someone to just simply say: Okay, here's another motion, here's the scheduling. And then what would have happened is almost certainly I would have granted the motion and there would have been the opportunity for more discovery. It's a piece of cake really. . . . you pointed out in your reply to [respondent's] papers, that he claimed that I had forbidden any further discovery motions. That was just, as you pointed out, flatly inaccurate.
. . . .
[T]here would have been an opportunity for further discovery which never took place.
[Ex.R2 at 16-3 to 18-16.]
Respondent admitted that the counterclaim "sounded" in defamation, but alleged that the specifics were not pled. Nevertheless, he failed to file a motion to dismiss or otherwise "screen" the adequacy of the pleadings, asserting that it was his litigation strategy to file a motion in limine, on the morning of the trial, to dismiss the counterclaim for lack of specificity. Respondent claimed that, if he had filed such a motion earlier, it would have alerted Parra that the counterclaim was deficient, which could have prompted the filing of an amended and more specific counterclaim. Respondent reasoned that his approach in the matter would have limited Parra to the original pleadings.
Respondent admitted knowing that Miranda's "horse training agreement" was not only with Parra, but also with Piaffe Performance, LLC. He asserted that he had not included Piaffe as a party defendant because Parra, the trainer, carried the insurance.
Respondent denied that he had failed to submit the defendant's expert's liability report to his own expert, for evaluation. He claimed that he had submitted it to expert Michael Poulin, a member of the U.S. Olympic Equestrian Team. He also denied that he had not contested the defendant's motion to strike Miranda's expert report, as a "net opinion." He admitted that, after he had received Poulin's report, he had not sought to "expand it" because he believed it was adequate. Despite respondent's opposition to the motion to strike the report, the motion was granted.
Respondent sought to replace Poulin with expert Edward Alan Buck, who had prepared an earlier expert report. However, respondent did not provide Buck with any of the discovery that he had prepared or received and did not discuss the defense's report with him. Respondent again claimed that, because the time for discovery had passed, he could not submit "anything else," including a supplemental report from Buck. Buck, therefore, did not prepare a supplemental report. Respondent relied on Buck's original report, which he had used to defend an earlier motion to dismiss the complaint.
Parra's motion to dismiss the complaint for failure to state a cause of action was based on the pre-release agreement, in which Miranda had waived her right to sue Parra. According to respondent, the courts have upheld those types of agreements, for example, for injuries sustained at gyms. Respondent claimed that, although Miranda's agreement was similar, his research revealed that "you cannot contract away a claim for gross negligence." According to respondent, Judge Buchsbaum denied the defendant's motion, relying extensively on Buck's expert report that asserted that Parra had been grossly negligent. Respondent stated that it was a question of fact for a jury to decide.
Miranda's grievance asserted, however, that respondent wanted to settle or give up on her case, based on a clause in the release waiving "any and all negligence." She claimed that she "had to inform [respondent] that a defendant cannot 'contract away' Gross Negligence," sent him several cases as proof, "and he finally decided there was credibility to that. He should know this himself since it is federal statute" [sic].
At some point not clear from respondent's testimony, Buck, without consulting him or Miranda, filed criminal charges with the ASPCA, the Hunterdon County Sheriff, and the Hunterdon County Prosecutor's Office, charging Parra with animal cruelty. According to respondent, the charges were dismissed because the one-year statute of limitations on animal cruelty had expired. Because Buck had filed the charges, respondent was concerned that Buck would be viewed as biased. Respondent, therefore, thought about using Poulin as an expert. However, as a result of Poulin's report having been stricken as a net opinion, Miranda was forced to rely on Buck, as her expert witness.
Buck did not appear for the July 23, 2012 hearing. Respondent denied that he had failed to make arrangements for Buck's appearance. He claimed that there were numerous emails and telephone calls between them, before the July 23, 2012 hearing, in which Buck confirmed that he would appear. Respondent accused Miranda of directing Buck not to appear.
At the hearing, Buck was to be qualified as an expert witness, prior to the trial (a Rule 104 hearing).
At the July 2012 hearing, Judge Buchsbaum asked Miranda whether she had "head[ed Buck] off." Buck had been en route to the trial, from Utah. Although she replied in the negative, she admitted that she had told Buck that it was unlikely that the trial would take place that day and that, if it did, he could be sitting in a hotel room for several weeks, before his testimony was necessary. At the hearing, Miranda added:
MS. MIRANDA: May I explain? On advisement of some potential counsel, they basically said that this trial most likely would not go forward, that this was an issue that had to be addressed because of the deceptive practices of [respondent].
So, you know, to ask Mr. Buck to come out here -- and I do apologize to the defendants, for the people who had to come out for them, but for Mr. Buck to come out here and possibly cost thousands of dollars and lose days of work for himself to find out that this attorney, you know, has not been working on cases, has been extremely deceptive, and with all the motions that he has pretended to file to [sic] the judge, it really didn't look likely that there could be a trial based on this information.
Not only that, but, you know, this is the most excitement that [respondent] has shown. For this man to come here and -- you know, I am not going to say what perceptions are, but it just didn't make sense for all of this to go forward when we have very serious issues with my attorney.
THE COURT: Did you advise [Buck] not to come, is that what I am hearing?
MS. MIRANDA: I told him what the issue was. I told him what another counsel -- you know, that the other counsel said it wasn't likely that, you know, there was going to be a trial based on the fact that I do need to relieve my attorney of his duties.
THE COURT: Okay. And the basis for your request to relieve your attorney is? ....
MS. MIRANDA: Extreme deception. In the last week he has told me three motion filings at least, maybe four, that he never filed [sic]. And I did confirm that this morning with the motions clerk, that there has been nothing filed since June twenty-seventh of this year.
[R2 at 7-3 to 8-23.]
Respondent claimed that, later that day, Miranda had admitted to him that, the day before the hearing, she had instructed Buck not to attend the hearing because "I gotta do what I gotta do." Respondent understood that to mean that she would do whatever was necessary to get a continuance, even if that meant telling her expert not to appear, and that she would either file a legal malpractice claim or ethics grievance against him.
At that same hearing, dissatisfied with respondent's services, Miranda sought to have him relieved as counsel and to have the judge recuse himself from the case.
As noted previously, the judge dismissed Miranda's complaint, without prejudice, and conditioned its reinstatement on respondent's payment of compensatory fees to defense counsel and defense experts, totaling almost $15,000.
Respondent admitted that he caused the court to expend resources and significantly delayed the adjudication of the matter by failing to (1) conduct adequate discovery; (2) obtain necessary experts reports; and (3) file timely motions (to strike, to adjourn the trial, or to extend discovery), resulting in the defendants' "appearing ready for trial;" as well as by filing an unauthorized appeal.
As discussed below, respondent appealed the court's imposition of sanctions against him.
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The formal ethics complaint charged that respondent's conduct, as described above, violated RPC 1.1(a), RPC 1.3, and RPC 3.2. Respondent admitted these violations.
The complaint also charged that, although respondent informed Miranda that he had filed various motions in her case, including motions to adjourn the trial, to extend discovery, and to have the judge recuse himself, no such motions had been filed. Respondent reiterated that, because the filing of motions on short notice was not permitted without leave of court, he had written to the judge asking for the above relief, which had been denied. After he informed Miranda of the judge's position, she filed her own motion seeking the same relief and, as mentioned above, to have respondent removed from the case. At the July 24, 2012 hearing, Judge Buchsbaum confirmed that he had received respondent's letter.
The complaint also alleged that, following a settlement conference, respondent had told Miranda that the judge did not want the case in his courtroom and that the judge had stated that she should "stop the bleeding . . . shoot the horse and get on with her life." According to Miranda's grievance, she had a witness to respondent's statement.
Respondent, in turn, accused Miranda of misquoting him and denied that Judge Buchsbaum had made the statement about putting her horse down. Respondent pointed out that, at the July 24, 2012 hearing, the judge had assured Miranda that he had not prejudged the case and that, if the case went to trial, the defendant could argue that she could have mitigated her damages by putting the horse down. Reiterating the judge's comments, respondent stated that the failure to mitigate damages was a legal theory that the defendant had a right to pursue.
Respondent admitted, however, that he had not informed Miranda that he had failed to conduct adequate discovery, that he was not prepared for trial, and that he lacked the necessary experts to proceed with her case. He claimed that he had informed Miranda that, if they did not prevail at the Rule 104 hearing, there would be no trial.
After the case was dismissed without prejudice and Miranda retained a new attorney, respondent filed an appeal with Miranda's name in the caption, without her knowledge or consent. He did so, even though he knew that another attorney had taken over the case. The complaint charged that the appeal delayed the Law Division action and "impaired the ability of succeeding counsel to expedite litigation."
Respondent explained that he had filed the appeal not to delay the Law Division case, but (1) to overturn the judge's decision imposing sanctions on him so as to permit Miranda to go forward with her case; (2) to have the appellate court reduce his sanction; or (3) if the appeal was denied, to give him more time to raise funds to pay the sanction.
As mentioned before, respondent failed to pay the sanction within the forty-five day deadline. As a result, the defendant filed a motion to dismiss the complaint, with prejudice. That motion was stayed by respondent's appeal.
William Berman took over Miranda's representation, in early August 2012, and contacted respondent several times, the first time before respondent filed the appeal. Berman testified that he would not have consented to the appeal, because respondent was no longer representing Miranda and the appeal would have delayed her case.
Berman filed a motion to restore Miranda's case. According to Berman, the motion was denied on the basis that the court lacked jurisdiction to consider it, because of respondent's pending appeal. Berman testified that respondent's appeal had been recently decided, thereby enabling Miranda to re-file her case. As of the date of the DEC hearing, Miranda's action against Parra had not yet been restored.
In mitigation, respondent testified that, in the past, he had practiced law with his father for twenty-five years, specializing in horse-racing law, his passion. As a result of this case, he sold all of his horses and cut back on his practice, because he did not know what the future held. He asserted that this ethics matter had been a humiliating experience for him.
As to the sanction, respondent claimed that he intended to borrow money to pay it, but that the individual lending him the money would not do so if respondent were suspended or disbarred, a circumstance that would make him unable to repay the loan.
Respondent apologized to Miranda, her attorney, and the defendant's attorneys. He argued that he deserved a reprimand or a censure.
The presenter noted, both at the DEC hearing and at oral argument before us, that respondent had cooperated during the course of the investigation. He asked the DEC to specifically consider Exhibits C20 and C22 to "put flavor" to this matter. The presenter noted that Exhibit C20, respondent's reply to the defendant's motion to strike the expert's opinion as a net opinion, did not discuss the merits of the application, but only requested oral argument on the motion and attempted to supplement the record. Exhibit C22 is Miranda's letter/motion to Judge Buchsbaum, to which she attached a certification of a "witness" confirming respondent's comments to her.
The DEC remarked that respondent had denied only six of the allegations of the complaint and admitted having violated all of the charged RPCs. The DEC, thus, accepted the admitted allegations as facts. Based on the testimony of the witnesses and the documentary evidence, the DEC found that respondent's conduct violated RPC 1.1, RPC 1.3, RPC 1.4(b) and (c), RPC 1.5(b), RPC 3.2, and RPC 8.4(c) and (d). The DEC concluded that any error or omission on respondent's part was not an isolated incident, but the result of a pattern of misconduct. The DEC considered respondent's ethics history (two censures and a one-year suspension) and recommended the imposition of a three-month suspension.
In his April 2, 2014 letter-brief to us, respondent claimed, among other things, that, shortly after he was retained by Miranda, he began researching the issue of releases and found New Jersey case law for the proposition that gross negligence was a defense to a pre-release clause. He pointed out that the judge had denied the defendant's motion for summary judgment, based on his research and the expert witness report of Alan Buck.
As to the issue of Buck's failure to appear at the "special hearing or the trial," respondent pointed out that, because Miranda did not testify, his statement that Miranda told Buck not to appear was not disputed. Respondent stated that he has paid the sanction in the Miranda case and, that, on October 25, 2013, her complaint was reinstated. He argued that the payment of the monetary sanction in the Miranda case and reimbursement of the disciplinary costs for this matter are sufficient sanctions for him, considering his use of "out of the box thinking" (1) to successfully defend a summary judgment motion that kept the case alive in its early stages and (2) to file an appeal, in order to give himself more time to earn money to pay the sanction and to permit Miranda's complaint to be reinstated.
At oral argument before us, the presenter underscored that respondent was involved in a continuing course of conduct and that he showed no remorse for his actions. Respondent disagreed with the presenter's assessment. He claimed that he was remorseful, apologized to us, and requested our compassion and leniency. He asserted that at his age, sixty-three, a three-month suspension would be equivalent to disbarment.
Following a de novo review of the record, we are satisfied that the DEC's finding that respondent's conduct was unethical is fully supported by clear and convincing evidence.
Although respondent did not admit all of the allegations of the complaint, he admitted that he violated all of the charged RPCs. He made a tactical decision to withdraw his "guilty plea," at the eleventh hour, thereby eliminating the testimony of Miranda and Judge Buchsbaum.
The record establishes that respondent failed to provide Miranda with a writing setting forth the basis or rate of his fee, a violation of RPC 1.5(b). The evidence also demonstrates, and respondent admitted, that respondent violated RPC 1.3 and RPC 3.2 in connection with the counterclaim that Parra filed against Miranda. Although respondent claimed that, for tactical reasons, he had not moved to dismiss the counterclaim for lack of specificity, the fact remains that he failed to serve any non-party deposition notices, interview any witnesses, file timely motions, and add Parra's employer as a party-defendant. We find that respondent's excuse for not filing any motions strains credulity, given Judge Buchsbaum's comments, at the July 24, 2012 hearing. At that time, the judge made it clear that he would have granted such motions.
On the other hand, respondent's conduct in this context, although negligent, did not rise to the level of gross neglect. Miranda did not lose her cause of action and her complaint has been reinstated, according to respondent. We, therefore, dismiss the charged violation of RPC 1.1(a).
The complaint also charged respondent with failure to communicate with the client for not having informed Miranda that he was preoccupied with personal matters (another ethics matter and his financial difficulties) that "impaired and distracted [him] from devoting the required time and attention" to her case. Respondent, in turn, correctly pointed out that he was under no obligation to inform Miranda about his personal finances or the ethics matter. We agree. But his failure to tell Miranda that he had not conducted adequate discovery, that he did not have proper experts for the case, and that he was not prepared for trial violated RPC 1.4(b), a transgression that respondent admitted.
Additionally, respondent violated RPC 8.4(c) for misrepresenting to Miranda that he had filed various motions to adjourn the trial, to extend discovery, and to have the judge recuse himself.
Although respondent admitted the allegations of paragraph thirty-eight, charging him with misrepresenting to Miranda the judge's comments about her case, respondent claimed that Miranda had misquoted him. He pointed out, in his brief to us, that Miranda had not testified at the DEC hearing. However, respondent's lack of preparation for the trial that was to start on July 24, 2012; Miranda's belief that he was attempting to strong-arm her into a settlement; Miranda's letter-motion to the court requesting that the judge recuse himself from her case and the accompanying certification of a witness; the judge's comments to Miranda, at the July 24, 2012 hearing, and his characterization of respondent's assertions as being "flatly inaccurate," together with respondent's admissions, all support a finding that he violated RPC 8.4(c) and (d).
He further violated RPC 8.4(d), when he did not obtain Miranda's consent to file an appeal from Judge Buchsbaum's order, an appeal that further delayed her case.
In all, respondent is guilty of having violated RPC 1.3, RPC 1.4(b), RPC 1.5(b), RPC 3.2, RPC 8.4(c), and RPC 8.4(d).
It is well-settled that misrepresentations to clients require the imposition of a reprimand. In re Kasdan, 115 N.J. 472, 488 (1989). A reprimand may still result, even if coupled with other, non-serious infractions, as here. See, e.g., In re Singer, 200 N.J. 263 (2009) (attorney misrepresented to his client, for a period of four years, that he was working on the case; the attorney also exhibited gross neglect and lack of diligence and failed to communicate with the client; no ethics history); In re Wiewiorka, 179 N.J. 225 (2004) (attorney misled the client that a complaint had been filed; in addition, the attorney took no action on the client's behalf and did not inform the client about the status of the matter and the expiration of the statute of limitations); In re Onorevole, 170 N.J. 64 (2001) (attorney made misrepresentations about the status of the case; he also grossly neglected the case, failed to act with diligence, and failed to reasonably communicate with the client; prior admonition and reprimand); and In re Till, 167 N.J. 276 (2001) (over a nine-month period, the attorney lied to the client about the status of the case; the attorney also exhibited gross neglect).
Here, respondent is also guilty of failing to communicate his fee in a writing to the client. Such conduct, even when accompanied by other, non-serious ethics offenses, as in this case, typically results in an admonition. See, e.g., In the Matter of A. B. Steig a/k/a A. Bret Steig, DRB 13-127 (October 25, 2013) (attorney did not provide a client in a landlord-tenant dispute with a writing setting forth the basis or rate of the fee; prior admonition for negligent misappropriation, which was deemed unrelated and not an indication of a failure to learn from prior mistakes); In the Matter of Gerald M. Saluti, DRB 11-358 (January 20, 2012) (attorney failed to communicate his fee in writing with respect to a post-conviction relief application); In the Matter of Myron D. Milch, DRB 11-110 (July 27, 2011) (attorney did not memorialize the basis or rate of the fee in writing, lacked diligence, and failed to communicate with the client); In the Matter of Joel C. Seltzer, DRB 09-009 (June 11, 2009) (attorney failed to memorialize the basis or rate of his fee and, in another client matter, failed to promptly deliver funds to a third party); and In the Matter of Alfred V. Gellene, DRB 09-068 (June 9, 2009) (in a criminal appeal, the attorney failed to furnish the client with a writing setting forth the basis or rate of his fee and lacked diligence in the matter).
If this were respondent's first brush with the disciplinary system, a reprimand or a censure for the totality of respondent's infractions might be sufficient. But he has a significant disciplinary record: a one-year suspension and two censures. The matter that led to his one-year suspension also included a misrepresentation, as here; in the matter that resulted in his first censure, he displayed, among other things, lack of diligence, failure to communicate with the client, and failure to expedite litigation, as here; and in the matter that culminated in his second censure, he was found guilty of conduct prejudicial to the administration of justices, as here. We, therefore, determine that nothing less than a three-month suspension is justified in this matter.
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
Bonnie C. Frost, Chair
By: /s/_________
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Disposition: Three-month suspension
| Members | Disbar | Three month Suspension | Reprimand | Dismiss | Disqualified | Did not participate |
| Frost | X | |||||
| Baugh | X | |||||
| Clark | X | |||||
| Gallipoli | X | |||||
| Hoberman | X | |||||
| Singer | X | |||||
| Yamner | X | |||||
| Zmirich | X | |||||
| Total: | 8 |
/s/_________
Ellen A. Brodsky
Chief Counsel