Wednesday, May 24, 2017

Ethics complaint arising out of 2007 transaction filed against New Brunswick attorney in 2017.

A New Brunswick attorney is facing ethics charges for allegedly misleading a judge during a September 17, 2007 hearing regarding the identity of the payee of a $160,000 settlement check.  The attorney is claiming that his "constitutional right to due process is compromised" because length of time that has passed since the hearing and because of malfunctions of the tape recorder that recorded the hearing.

Frank J. Shamy, who maintains an office at 22 Kirkpatrick Street, New Brunswick, is the subject of March 29, 2017 complaint being prosecuted on behalf of the District VI Ethics Committee by attorney Daniel P. D'Alessandro of the Newark law firm of McCarter & English, LLP.  According to the complaint, Shamy successfully negotiated a $240,000 settlement in July 2007 that resolved his client's lawsuit against its insurance carrier.  Although the policyholder was Belov Technology, a dormant corporation that was founded by Dr. Valery Belov, Shamy allegedly remitted $160,000 of the settlement to Dr. Belov personally, rather than the corporation, after having retained his $80,000, one-third share. 

The underlying lawsuit was not initiated by Shamy.  Rather, it was filed by another attorney named Robert Kenny who, according to the complaint, filed the lawsuit but withdrew as counsel in 2006.  The complaint was brought in the name of Sunstone, Inc., another dormant corporation founded by Dr. Belov.

Despite having withdrawn from the matter, Kenny believed that he was entitled to be paid for the work he put into the case.  In order to collect for his work, he filed suit against Dr. Belov, Belov's son and the two corporations (Sunstone and Belov Technology) in February 2007--prior to the $240,000 settlement being negotiated.  Shamy represented the defendants in the fee lawsuit and claimed that Kenny was due nothing because of he withdrew from the case.

Shamy's alleged ethics infraction arose out of what he said and did not say during a September 17, 2007 hearing where Kenny sought to prevent Shamy from distributing the settlement so that Kenny could collect his fee, as determined by the court, from the settlement proceeds.  Even though Shamy had already disbursed the settlement funds to Belov personally, the complaint, referring to the hearing's transcript, quotes Shamy as having told the judge that he disbursed the funds "to the corporations."  This, according to the complaint, misled the court into believing that an order preventing the corporations from disbursing the funds would benefit Kenny when in fact the corporations were merely empty shells with no assets. 

The crux of the complaint against Shamy is that he did not "correct the Court or clarify any confusion that may have been caused by [Shamy's] statement that the settlement proceeds were disbursed to Belov Technology or Sunstone and not Dr. Belov."  D'Alessandro claimed that Shamy's alleged concealment was a "knowing and intentional misrepresentation" that violated several of the Rules of Professional Conduct.

Shamy, in his answer (at the link above, following the complaint), admitted that he disbursed the $160,000 to Dr. Belov personally rather than the corporations and that the transcripts did record him saying "Judge, it was disbursed to the corporations."  But, he noted that immediately prior to his statement to the judge, the transcript reflects that "Tape begins to malfunction."  Shamy wrote that he "had misspoken" but that he never intended to mislead the Court or Kenny.

In his defense, Shamy wrote that he went into the September 17th hearing believing that the critical issue for the court to determine was whether he still had the money in his trust account or whether he disbursed it.  He wrote that he "did not believe whether the check was written to Dr. Belov or the corporations was material to" the hearing.  Since the Court dissolved all restraints that protected the settlement funds at the conclusion of the hearing, Shamy argued, "I don't understand how my statement could have materially misled the Court." "The Court lifted all restraints," he wrote. "Therefore, even if I had written the check to the corporations, at the conclusion of the hearing, those entities were free to disburse the monies as they saw fit."

Shamy is being represented by Donald M. Lomurro of Freehold.

On April 15, 2008, Shamy was admonished by ethics authorities in a separate matter for signing his client's name to a release and for making small, interest-free loans to three clients without first advising them to consult with independent counsel.

What is written above is just a summary and the complaint and Shamy's answer, should be read in their entirety in order to obtain the best understanding of the case.  The ethics charges are only allegations--nothing has been proven. Shamy has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on Shamy's matter may complete and send a hearing request form to the District VI Ethics Committee Secretary Jack Jay Wind via fax to 201-333-1110.

Tuesday, May 23, 2017

Ex-Belleville cop to appear on May 30th for shoplifting charge.

On Tuesday, May 30, 2017, a former Belleville police officer will appear before Essex County Superior Court Judge Martin G. Cronin for a "Plea Disposition Conference" regarding a summons-complaint that charged her with shoplifting a $50 bottle of tequila on December 31, 2015.

Background on this matter is on-line here.

The complaint-summons that charged Wanda I. Posada was issued on March 22, 2017, nearly fifteen months after the alleged offense.  Both the Belleville Municipal Court and the Essex County Criminal Division Manager's office, during phone calls today, said that the May 30th conference is the first scheduled event on this matter and that the matter is still active.

The public may attend this conference but should call the Criminal Division Manager's office at 973-776-9300 ext 56575 the day before the conference to ensure that it has not been postponed.  Refer to State v. Posada, Complaint/Summons No. 0701-S-2017-000212.

Sunday, May 21, 2017

Ethics Committee charges Sussex County municipal prosecutor for prosecuting electric theft case while his brother was electric company's chairman.

On March 2, 2017, the District IX Ethics Committee filed a formal complaint against a municipal prosecutor in Sussex County who prosecuted a Wantage man for allegedly stealing electricity from the Sussex Rural Electric Cooperative while the Cooperative's chairman was the prosecutor's brother.  The ethics complaint alleges that the prosecutor was under a duty to disclose this relationship and that his failure to do so "is reasonably certain to mislead" the municipal court.

The complaint is against William T. Haggerty who serves as prosecutor of a joint municipal court covering Sussex Borough and Wantage and Stillwater Townships.  According to the complaint, David Zukowski of Wantage, who was on trial for allegedly stealing electricity from the Cooperative, asked Charles Tate, the Cooperative's witness, during cross-examination whether the Cooperative's Board of Directors Chairman--Jack Haggerty, Jr.--was related to Prosecutor Haggerty.  In response, Tate said that he had just become aware that day that the prosecutor and chairman were brothers. According to an excerpt from trial trial transcript set forth in the ethics complaint, Municipal Court Judge Craig U. Dana immediately declared a mistrial.

Paperwork supplied by Zukowski shows that he was ultimately found not guilty of the theft of services charge on October 7, 2013.

Zukowski had previously accused Judge Dana of being conflicted because he had previously been appointed judge by the Wantage Township Committee while the Township attorney's law firm served as the Cooperative's general counsel and because F. Parker Space, currently a member of the New Jersey Assembly, previously appointed Dana while Space served on the Cooperative's Board of Directors.  (These allegations are taken from Zukowski's November 4, 2011 letter to Presiding Municipal Court Judge Frank J. Zinna and have not been verified.)  Judge Dana ruled, however, that he was not conflicted from the matter because he was appointed as the joint court's judge by the governor and not by either the Wantage Township Committee or the Sussex County Board of Chosen Freeholders.

In his April 6, 2017 answer to the charges (available at the link in the first paragraph), Haggerty admits that his brother Jack was the chairman of the Cooperative's Board of Directors at the time of the trial but that he "did not consider [his] brother's position as Director to be relevant to the proceeding in municipal court since [he] had never spoken to him about the incident."  He also wrote that he was never "personally close" to his brother and sees him only at Thanksgiving dinner and when he "bumped into him at the grocery store in Newton."

"I regret not having contemplated that the relationship with my brother could present a concern for the Court," Haggerty wrote.  "I would urge that this was not due to any intent to mislead the Court through failure to provide material information to the Court but rather only due to my failure to appreciate that the information might be deemed as material to the proceeding before the Court."

In addition to being prosecutor, Haggerty also serves as attorney for Stillwater Township's Planning and Zoning Boards and may also serve in similar positions in other area municipalities.

The ethics matter is being presented (i.e. prosecuted) by Westfield lawyer Marcie L. Mackolin and Mr. Haggerty is representing himself.

What is written above is just a summary and the complaint and Haggerty's answer, should be read in their entirety in order to obtain the best understanding of the case.  The ethics charges are only allegations--nothing has been proven. Haggerty has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on Haggerty's matter may complete and send a hearing request form to the District IX Ethics Committee Secretary Joseph M. Casello via fax to 732-751-1866.

Friday, May 19, 2017

Commercial Township sues former mayor. Claims he violated Memorandum of Understanding that resolved four harassment complaints against him..

On Monday, June 26, 2017, at 9 a.m., Cumberland County Assignment Judge Georgia M. Curio will hear argument on whether or not a temporary injunction should issue that would prevent former Commercial Township Mayor Judson Moore from violating a Memorandum of Understanding (MUA) that he entered into with the Township on May 16, 2016.  In the underlying March 29, 2017 lawsuit filed by Commercial Township Solicitor Thomas E. Seeley, the Township alleged that Moore had intentionally breached the MUA by running for public office in the Township and for causing the distribution of a letter that named the four employees who had filed harassment complaints against him. 

While the MUA expressly states that "Moore shall not seek a public office in the Township of Commercial, County of Cumberland, State of New Jersey hereinafter," it does not explicitly prevent Moore from publicly disclosing the identities of the four employees who had brought complaints against him.  Rather, the lawsuit states that "[t]he 'good faith' spirit of the agreement was to keep the victims of the harassment anonymous" and refers to a September 1, 2016 decision in Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16 where Judge Curio "indicated on the record that she wanted to protect the disclosure of these employees' names."

The lawsuit does not identify the public office for which Moore allegedly filed a petition.  But, the context suggests that it was for a commissioner's seat on one of the three fire districts in the Township.  The suit alleges that Moore attended a Fire District meeting where he publicly stated that the MUA "does not hold water" and that "he, Judson Moore, can hold any position in the township that he wanted in complete defiance of his earlier signed agreement."

The lawsuit also alleges that Moore rejected the Township's attempt to use mediation to resolve the conflict thus requiring the litigation.  The suit asks Curio to, among other things, enjoin Moore from violating the anonymity of the harassment complainants and to pay the court costs and attorney fees incurred as a result of the lawsuit.  Moore has until May 26, 2017 to file and serve his opposition.

Thursday, May 18, 2017

Middlesex County lawyer in ethics hot water for allegedly threatening legal action against "lemon law" client who refused to give Ford Motor a copy of her driver license.

A Metuchen lawyer has been formally charged with violating several Rules of Professional Conduct for threatening legal action against a client who, having twice executed title documents to Ford Motor and having dropped off her "lemon" at a Ford dealership, refused to provide Ford with her driver license so that the company could get a duplicate title.  Apparently, Ford needed to get a duplicate title because the dealership either misplaced the title documents or, as the lawyer suggests, refused to turn those documents over to Ford because the client did not use her "lemon law" settlement proceeds to purchase another vehicle from the dealership.

Mark Silber, a lawyer since 1973 who maintains an office at 10 Station Place, Metuchen, took over a "lemon law" case for Lois Krupowies against Ford Motor Company and a local Ford dealership after Krupowies' former lawyer was unable to continue the case.  Silber was able to settle the case.  As part of the settlement, Krupowies returned the vehicle to the dealership and delivered the executed title and other documents to Silber.  According to the complaint, Krupowies, at Silber's request, executed additional documents "because [the dealership] had misplaced the documents" she had signed earlier. 

The trouble began when in July 2013 Silber asked Krupowies for a copy of her driver license that Silber said Ford Motor Company needed to obtain a new title to the vehicle she had turned in to the dealership six months earlier.  Krupowies refused to provide Silber with a copy of her license because, according to the complaint, Silber wasn't able to explain to her satisfaction why he or Ford Motor Company needed it.  Things turned ugly, according to the ethics complaint, when Silber, in August 2013, sent Krupowies "two threatening text message" telling her that "he was filing an Order to Show Cause seeking his legal fees and costs as well as 'a legal penalty asking for $100/day for each day' she refused to [provide a copy of her driver license]."  Despite the pressure and threats, Krupowies stood firm on her refusal to provide a copy of her license, according to the complaint.  Silber reportedly told Krupowies "that she was jeopardizing his reputation of integrity with Ford and that he needed 'to jealously protect' his reputation with Ford."

The complaint states that Silber then billed Krupowies "for his time spent as a result of her non-cooperation" and "sent monthly bills, adding interest to the amount due, through December [2013]."  Silber then threatened to sue Krupowies in January 2014 for her refusal to pay the legal bills, according to the ethics complaint.

The ethics presenter (i.e. prosecutor), Patricia M. Love of Hendricks & Hendricks, New Brunswick, said that Silber's conduct violated several Rules of Professional Conduct.  Among them: a) Silber's personal interest in "protect[ing] his reputation with Motor Company" conflicted with his duty to his client Krupowies; b) Silber should have recognized the conflict and withdrawn from representing Krupowies; c) Silver failed to protect Krupowies interests "after he effectively terminated their attorney-client relationship in his adversarial threats;" d) Silber violated ruled requiring legal fees to be reasonable by billing Krupowies for services that she didn't ask for and e) Silber's September 25, 2013 letter to Ford divulged confidential information about Krupowies without her consent. 

In his answer, Silber assigned some of the blame to the Ford dealership.  He wrote that it was unlikely that the dealership misplaced the title documents but that "it was more likely that [the dealership] wilfully refused to return the title papers to Ford."  He wrote that in his experience, it was routine for auto dealerships to "make it difficult for any customer to return a vehicle for a refund without then using the money to buy another vehicle at that dealership."  According to Silber's answer, "it is the customer's obligation to guarantee the dealer does its part to get clear vehicle title back to Ford" and that the "[d]ealer's failure to participate falls on the customer."

Silber admits that his actions may have gone too far.  He insists, however, that his actions, although "aggressive," were justified because Krupowies "obligated herself to convey good title to Ford, even if the dealer did not cooperate" and because her settlement gave her a full refund of a the purchase price (which Silber stated was $33,000) of the vehicle plus "$8,000 of shifted legal fees and costs."  Ultimately, he said, Krupowies gave Ford a copy of her license after Ford threatened to sue her.  "While my actions were aggressive, my advice proved to be correct. We were at odds over what she needed to do, and I grew angry with her," Silber wrote.

Silber also admitted that billed Krupowies for his time spent trying to get her to give a copy of her driver license but denied that the fee was unreasonable.  He wrote that if wished he had "canceled her small bill" but that he "grew angry with her and the position she took, and [he] allowed [his] anger to weigh too heavily in [his] decision making."  Silber denied divulging any confidential information to Ford stating that he provided Ford with only the "nature" of his communication with Krupowies.

Silber wrote that he was concerned that he might become personally liable to Ford because he disbursed the settlement funds to Krupowies before she had satisfied her duty to ensure that clear title documents were in Ford's hands.  When he was preparing file a motion against Krupowies, Silber wrote that "it suddenly hit me I was taking an adverse position to my client."  He wrote that after he studied the ethics complaint, he felt "more and more foolish."

Silber had a few things to say about the ethics process itself.  First, he wrote that a previous grievance had been filed against him but it was not docketed.  He said that he "believed the matter was over" and that he "did not foresee it ever coming back to life."  Second, he wrote that he later was approved for a diversion of the ethics matter but that the diversion was later rescinded.  He wrote, "I feel I've been treated unfairly, or at least without the benefit of adequate explanation."

In mitigation, Silber pointed to his unblemished ethics record and his devotion to consumer protection and pro bono work.  He recited acts of charity of buying groceries and train tickets for impoverished clients, including buying steaks for a double amputee client. He also wrote that he disarmed a gunman shooting up a bus in San Antonio, Texas and was awarded a medal for that act of heroism.  He said that even though he was chosen to receive the 2016 Pro Bono award by New Jersey Legal Services, he was "ashamed of being called to the podium to accept an award knowing that at any time my name could be published as an ethics violator."

"I grew angry and impatient with [Krupowies] which infused bad judgment, and maybe some arrogance which, when added to the mix, made me feel I was right when I was wrong," Silber wrote. "I wish I could do it over."

The ethics matter is captioned District VIII Ethics Committee v. Mark Silber, Esq., Docket No. VIII-2014-0023E.  What is written above is just a summary and the complaint and Silber's answer, which are on-line here, should be read in their entirety in order to obtain the best understanding of the case.  The ethics charges are only allegations--nothing has been proven. Silber has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on Silber's matter may complete and send a hearing request form to the District VIII Ethics Committee Secretary Barry Muller via fax to 609-896-1469.

Thursday, May 11, 2017

Attorney disciplinary officials claim lawyer practiced law two years after his law license was revoked.

A Red Bank attorney is in trouble with ethics authorities for allegedly continuing to practice law two years after his law license was revoked and after ethics authorities explicitly told him to stop.

According an April 5, 2017 ethics complaint, the Supreme Court revoked William John Bowe's law license on August 18, 2014 due to his failure to file his attorney registration statements and pay annual registration fees for 2009 through 2014. 

On May 6, 2016, the Office of Attorney Ethics was alerted to the fact that Bowe, despite the revocation order, was still practicing law when it was notified by Bank of America that Bowe's attorney trust account was overdrawn. A resulting investigation disclosed several alleged record-keeping violations pertaining to Bowe's trust account including an allegedly improper commingling of personal funds relating to Bowe's mother's estate.

According to the complaint, Bowe, despite knowing that his license was revoked, continued to do legal work for his clients and send them legal services invoices.  According to ethics authorities, Bowe deposited $7,526.29 and $19,056.16 into his attorney business account on July 29, 2016 and September 30, 2016, respectively.  Both dates are after Bowe's June 23, 2016 interview with ethics officials.

The complaint goes on to allege that Bowe, in a January 26, 2017 certification in support of his attempt to have his license restored, misled the Board of Bar Examiners.  Bowe had stated in his certification that in mid-May 2016 he "panicked from the shock of the news" that his law license was revoked and "tried to wind-down certain pending real estate matters with the intent to avoid causing the clients to experience delays or undue prejudice." The complaint alleges that Bowe's certification "deceitfully omits facts and circumstances regarding [Bowe's] unauthorized practice of law, which continued despite multiple notifications from [ethics authorities]."

The ethics charges are only allegations--nothing has been proven. Bowe has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct. Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on Bowe's 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. 

Sunday, May 7, 2017

Lawsuit: Burlington municipal court clerks claim they were terminated because they criticized an incompetent judge.

Two former officials of the Burlington City (Burlington County) Municipal Court are suing City officials and the court's former judge for retaliating against them for complaining about the judge's alleged incompetence.  According to the two female plaintiffs, the judge suffered from confusion, improperly incarcerated people and made remarks from the bench such as "Don't trust the prosecutor, he's a democrat."

The plaintiffs in the two consolidated lawsuits are Elizabeth Fitzpatrick and Mary Penny who served, respectively, as the Burlington City Municipal Court's Administrator and Deputy Administrator until their employment with the court terminated in October 2013.  The two lawsuits, on-line here and here, contain similar and sometimes nearly identical allegations.  Both lawsuits allege that the trouble began when Thomas J. Scattergood was appointed as judge on August 5, 2010.  Both women said that it was clear that Scattergood could not properly discharge his duties because of "memory issues, dementia symptoms, confusion, administrative incompetence, and a lack of understanding of laws and/or procedures."  The women claimed that Scattergood improperly jailed defendants, would sometimes "create in his head events and conversations that never took place" and would handle cases where "he had a clear and admitted conflict of interest."  The women said that Scattergood began to rely on them for making judicial decisions, such as whether or not to issue a warrant or how to rule on cases.  They claimed that when Scattergood made an error, he would yell at them for not watching him closely enough. 

The women said that they complained to City Business Administrator David Ballard, Meg Boice, an Administrative Specialist with the New Jersey Administrative Office of the Courts, Burlington County Municipal Division Manager David Young and other court officials.  They both said that Boice screamed at them in February 2012 for making complaints against Scattergood and forbade them from making any more complaints.  Boice also allegedly told the women that their complaints had angered Young as well as Presiding Municipal Court Judge Bonnie Goldman and Superior Court Assignment Judge Ronald Bookbinder.

Both women said that their normally positive evaluations turned negative after they complained against Scattergood.  They claimed that Boice "manufactured" their falsely negative reviews in retaliation against them and said that disciplinary charges were brought against them for abusing breaks and overtime pay and for causing budget errors.  Fitzpatrick said that Young, Boice, Goldman and Bookbinder were "directly involved" in the disciplinary action against her while Penny said that only Young was directly involved in disciplining her.  Both woman said that Ballard "directly participated in retaliatory action against" them.

Both women said that the stress of the retaliation caused them to take sick leave in 2013.  Both said that while on leave, they were suspended and charged with disciplinary violations.  Both women said that no hearings were ever held on on the charges against them, that their employment was terminated on October 14, 2013 and they were told that they were being "laid off."

On March 8, 2016, Scattergood was reprimanded by New Jersey Supreme Court and was "permanently barred from holding future judicial office."  The Supreme Court took its action in response to a December 14, 2015, 30-page presentment filed against Scattergood by the Advisory Committee on Judicial Conduct.  The presentment, which identified Penny as one of the two grievants who initiated the case, claimed that Scattergood engaged in conflicts of interest, had an improper judicial demeanor, violated rules regarding plea bargaining and engaged in what the presentment called "ticket fixing."

Earlier this year, the City and Scattergood formally offered the two women a total of $90,000 to resolve their complaints. The Offers of Judgment, on-line here and here, offer Penny $50,000 and Fitzpatrick $40,000--the majority coming from Scattergood.  The matters are still pending, however, as the offers have apparently not been accepted. 

The Administrative Office of the Courts, Boice and Young were named as defendants but were dismissed from both cases.  The cases continue against the City, Ballard and Scattergood.