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.