Friday, January 22, 2016

Bergen County lawyer who serves as a member of a local borough council cited in attorney ethics case.

In a December 28, 2015 formal complaint, the Office of Attorney Ethics accused a partner in a Tenafly law firm who also serves as a member of the Cresskill Borough (Bergen County) Council with a conflict of interest and failure to properly supervise an associate.

The ethics complaint is against Gregory K. Mueller, a partner in the Tenafly law firm of Sclar Adler, LLP and the Founding Partner of the Mueller Law Group.  Both Sclar Adler and the Mueller Law Group list their address as 19 Engle Street, Tenafly.

The case against Mueller centers on the Ocean County Superior Court case of Patriot Settlement Resources, LLC v. Richard Heckel, Docket No. OCN-L-1925-14.  This was a "structured settlement" case in which Heckel sought to transfer a string of monthly payments to Patriot in exchange for a single lump sum payment.  The Structured Settlement Protection Act, N.J.S.A. 2A:16-63, enacted in New Jersey in 2001, requires that a judge find that such a transfer is "in the best interest of the payee, taking into account the welfare and support of the payee's dependents" as a prerequisite to approval.

In the Ocean County case, Patriot was represented by Vincent Chirico of Chirico Law, PLLC which also maintains its offices at 19 Engle Street, Tenafly. Chirico is listed as being "of counsel" to both Sclar Adler, LLP and the Mueller Law Group.  According the ethics complaint, Heckel was represented in the Ocean County matter by the Mueller Law Group and Mueller is alleged to be "of counsel" to Chirico Law, PLLC.  Mueller allegedly assigned a new attorney named Paul Egert who had no experience in structured settlements to be "the primary attorney responsible for handling Heckel's matter" before the Ocean County court. (Update 04/18/16: I have placed on-line a separate by related complaint against Mr Chirico as well as his answer.)

Superior Court Judge Craig L. Wellerson was asked to approve an arrangement under which Heckel would get a $300,000 lump sum payment in exchange for assigning over twenty years of monthly payments that, according to the ethics complaint, had a present value of $1,744.501.17.  When Egert asked Mueller about the valuation of the transfer, Mueller allegedly directed Egert to Chirico without telling him about his business relationship with Chirico or that the case was referred by Chirico to the Mueller Law Group.  According to the ethics complaint, Chirico effectively ran both sides of the case and "coached" Egert and gave him a "cheat sheet" to help him prepare for a hearing before Judge Wellerson.

At the hearing, Judge Wellerson rejected the deal calling it "shocking to the conscious" and "abhorrent."  Judge Wellerson then referred the matter to the Office of Attorney Ethics.

The Office of Attorney Ethics served Mueller's attorney, Scott P. Piekarsky of Wyckoff, with the ethics complaint on January 14, 2016.  Mueller has 21 days from that date to file his answer.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on either the Mueller or Chirico matter may complete and send a hearing request form to the Office of Attorney Ethics in care of Barbara Cristofaro via fax to 609-530-5238. 

Thursday, January 14, 2016

Sussex County municipal lawyer cited by ethics authority for sexual harassment.

04/26/16 Update:  Based on Michael S. Garofalo's stipulation of facts, the Disciplinary Review Board will conduct a hearing on Thursday, June 16, 2016 to determine the quantum of discipline to impose.  State ethics officials "contend that the appropriate discipline is a reprimand based upon the facts of the instant matter and the applicable case law."  The hearing, which is open to the public, will take place at 10 a.m in the Supreme Court Courtroom on the eighth floor of the Hughes Justice Complex at 25 West Market Street, Trenton.  Those who wish to attend should call 609-530-4008 the day prior to the hearing to ensure that it hasn't been postponed.  Refer to Docket No. XIV-2014-0318E.
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On December 8, 2015, the Office of Attorney ethics served a formal complaint upon an attorney who serves as counsel for two Sussex County municipalities.  The complaint charges the attorney with sexually harassing two women who worked at a law firm where the attorney was a partner.

The complaint in Docket No. XIV-2014-0318E charged attorney Michael S. Garofalo, a former partner in the Sparta firm of Laddey, Clark and Ryan, LLP, of stalking one woman and sending inappropriate e-mails to another.  According to telephone conversations with the Sandyston and Montague Township Clerks' offices, Garofalo presently serves as municipal attorney for both.

The first woman, who was employed briefly at Garofalo's law firm in 2005, had "a brief sexual encounter" that year with him and stayed friends with him until 2009.  After that, Garofalo allegedly continued to call and e-mail the woman after she had told him to stop in 2011.  According to the complaint, the e-mails were sexually suggestive and referred to the woman as "love doll," "sex toy" and sweet cheeks."  After his e-mails weren't returned, he allegedly referred to the woman as a "bitch" and an "asshole."  He allegedly told the woman that he loved her and constantly pestered her for sex and to out with him for lunch, drinks after work or on vacation to the Caribbean.

When he realized that the woman was not responding to his advances, Garofalo allegedly ratcheted up the harassment by threatening to send revealing e-mails to her friends unless she agreed to have lunch with her.  The abuse finally caused the woman to file a report with the Parsippany Police Department who told him to cease communicating with the woman.  A little more than two months after having been warned by the police, Garofalo allegedly sent the woman another e-mail.  This e-mail caused the woman to report Garofalo to his law firm which conducted an internal investigation.   The firm ordered Garofalo to not have any further contact with the woman and told Garofalo that unless he reported himself to the Office of Attorney Ethics, the law firm would file an ethics grievance against him.

On May 16, 2014, Garofalo, through his attorney Louis Griscuoli, reported his conduct to ethics authorities.  Yet, Garofalo allegedly used his Sandyston Township e-mail address to contact the woman again on June 26, 2015.  When confronted by ethics authorities about this e-mail, Garofalo allegedly denied sending it but then admitted to having sent it after ethics authorities said they would subpoena Sandyston Township for the e-mail.

The investigation also revealed that Garofalo harassed another firm employee in 2011 by sending her e-mails that referred to her as "sweet cheeks." Although the employee thought that Garofalo's conduct was inappropriate, she elected not to report it.

Wednesday, January 13, 2016

Former Morris Township judge faces ethics charge.

On October 6, 2015, the District XA Ethics Committee filed a formal ethics complaint against a Morris Township attorney who, while representing a buyer in a $2.5 million dollar real estate transaction, allegedly deceived the seller's attorney by not informing him that he had returned the buyer's $50,000 deposit check two weeks after the contract of sale had been signed.

The matter is captioned District XA Ethics Committee v. Robert J. Nish, Docket No. XA-15-0010E.  The attorney for the ethics committee, William C. Mack of Lake Hopatcong, wrote that Nish, who used to be the Morris Township municipal court judge, received a $50,000 check from his client, Kurien Chacko, as the initial deposit on Chacko's purchase of a $2.5 million Bernardsville home owned by John and Jane Petrillo.  The $50,000 deposit check was tendered to Nish's law firm on April 6, 2013 and the contract called for Chacko to make an additional $50,000 deposit on April 15, 2013 with the full cash balance being paid at the May 15, 2013 closing.

According to the ethics complaint, Nish "did not immediately deposit the check in his attorney trust account" and instead gave it back to Chacko while the contract was still under attorney review.  On April 19, 2013, Chacko allegedly came to Nish's office and "insisted that [he] return the initial deposit" and promised that he would wire funds to Nish when attorney review was completed. Chacko, however, never did wire Nish any money and the real estate deal ultimately fell through.

The thrust of the case against Nish is that after attorney review was completed, he never told the Petrillos' attorney, Eric S. Wasser of Somerville, that the original $50,000 had been returned to Chacko.  Rather, Nish allegedly let the Petrillos and Wasser believe that he had the $50,000 in his trust account and advised them only that the second $50,000 had not been paid.  It was only after the Petrillos hired a litigation attorney, presumably to recover the $50,000 deposit as damages due to Chacko's breach of contract, did Nish finally admit that he didn't have the $50,000.

In his answer, which is also at the above link, Nish claimed that his failure to advise Wasser that Chacko's deposit had been returned "was an oversight, not intended to mislead."  He also said that after the attorney review period was over, he typically has paralegals in his office handle correspondence and that "the entire file was not properly reviewed by the paralegal to confirm the retention of the initial deposit." He also said that he was distracted during that time period because of his wife's serious illness and that he regretted having a client--Chacko--"who apparently duped everyone."

The matter will now be be heard by a hearing panel consisting of two lawyers and one non-lawyer member.  After hearing evidence, the panel will, if it recommends that Nish be disciplined, make its report to the Disciplinary Review Board which will in turn report its findings to the New Jersey Supreme Court.  While the hearing before the panel is public, the public rarely attends because hearing dates, hours and locations are not readily made public.  Anyone who wishes to attend the hearing should contact Mr. Mack at the address or phone number listed on the complaint.

Friday, January 8, 2016

Salem moves to prohibit future public employment for convicted former City Housing Authority head.

On November 16, 2015, I wrote a blog article about Dr. Isaac A. Young, the former head of the Salem City Housing Authority, and Terri Gross, a clerk of the Salem Police Department, being sentenced for publicly releasing confidential DYFS records in an alleged attempt to derail the campaign of Salem City Mayor Charles Washington, Jr.

When I compared Gross' Judgment of Conviction to Young's, I noticed that Gross was required to forfeit her ability to hold future public office while Young's Judgment of Conviction did not contain this requirement. I felt that since Young held a higher office than Gross, he should have also forfeited his right to hold public office.  On November 16, 2015, I wrote to First Assistant William J. Brennan to ask why Gross was required to forfeit when Young was not.  After not hearing from Brennan, I sent an OPRA request on January 4, 2016 seeking further information on the forfeiture of office disparity.

In response, I received a copy of a January 5, 2016 court filing in which First Assistant Brennan sought to amend Young's sentence to include public office forfeiture.  In the response to my OPRA request, Brennan wrote:
You are correct that there should have been an Order of Forfeiture despite [Young's] termination.  That was not addressed at sentence; however, I have filed an immediate motion that the sentence be amended to include that order.  I am attaching a copy of the motion which I filed with the Court.  
I appreciate Mr. Brennan's responsiveness and cooperation.

Brennan also informed me that Young will be tried on February 8, 2016 before Judge Benjamin C. Telsey on a separate matter where Young was charged with, among other things, directing housing authority maintenance workers in 2012 to maintain his rental properties.  Young's first trial on this matter, held on April 30, 2015, ended in a mistrial.

Saturday, January 2, 2016

Cumberland seeks relief from a "default" entered against it.

On Friday, January 8, 2016, Cumberland County Superior Court Judge David W. Morgan will determine the county's motion for relief from the consequences of a default entered against the County, the County Prosecutor and the Board of Chosen Freeholders in a sexual harassment lawsuit filed by a female detective in the Prosecutor’s Office.  At the same time, Morgan will also determine Plaintiff Lynn Wehling's motion to have final judgment entered in her favor.

According to a screenshot from the Superior Court's computer, the County defendants "defaulted" in the lawsuit while Wehling is shown to be the "prevailing party."  According to a court order issued by Morgan on August 12, 2015, the County defendants were apparently placed in default because of Wehling's successful motion to strike the County's defendants' failure to comply with discovery rules.  The August 12th order also compelled the County to pay Wehling's lawyer, Kara A. Mackenzie of the Chatham law offices of Gina Mendola Longarzo LLC, $2,216.30 in fees and costs for having to enforce the County's breach of the discovery rules.  In earlier orders dated May 12, 2015 and June 4, 2015, Morgan ordered the County to pay Mackenzie $1,185.07 and $1,093.54 respectively.

The attorney handling the matter for the County defendants when the three orders were entered was Kimberly A. Procopio.  When the lawsuit was filed in 2013, Procopio was associated with the Egg Harbor Township firm of Nehmad Perillo & Davis.  On September 8, 2015 Procopio advised the court that she became affiliated with the Leonard Law Group of Atlantic City.  On October 29, 2015 A. Michael Barker of the Linwood firm of Barker, Gelfand & James became the County defendants' attorney.

In her lawsuit, Wehling claimed that her supervisor, George Chopek, sexually harassed her with inappropriate comments dealing with gender and sexual orientation.

Friday, January 1, 2016

Despite expert's evaluation, court dismissed charges against man accused of being "under influence."

On November 7, 2015, I blogged about a $7,000 settlement that Manuel Alvarez reached with Fairview Borough (Bergen County) after having claimed that the Fairview police falsely arrested him. What interested me about this case was that the man was charged with being under the influence of marijuana on the basis of a "Drug Recognition Expert's" evaluation of him.

In response to my Open Public Records Act (OPRA) request, I learned that Lieutenant Robert F. Ryan, a lieutenant of the River Vale Police Department, was certified as a "Drug Recognition Expert" by the International Association of Chiefs of Police.  In that capacity, Ryan was called upon on December 8, 2013 to evaluate whether Alvarez was impaired by marijuana ingestion after he blew a zero reading on an Alcotest 7110 breathalyzer.

In his "Drug Influence Evaluation" report, Ryan determined that "Alvarez is Under the Influence of Cannabis and unable to operate a motor vehicle safely."  Ryan based his determination on Alvarez's failure to properly complete various dexterity and balance tests, the inability of his pupils to normally converge and because his tongue was green and his "upper nasal area was red and raw on both the left and right sides."  Ryan also noted "eyelid tremors" and a white substance up Alvarez's nostrils.

Despite Ryan's report, both the Driving While Intoxicated and being under the influence of a CDS charges were dismissed on the state's motion.  Of the seven summonses issued, Alvarez was found guilty of "maintenance of lamps" and a seatbelt violation.