Most people have heard or had experience with an attorney who’s behaviors were, one could say, questionable.  What most have not considered is what implications an attorney’s unethical or questionable behaviors could have on them.

The New Jersey Supreme Court has provided some guidance on this very topic in the recent decision of Brundage v. Estate of Carl V. Carambio.  Carol Brundage hired her attorney to represent her in her claim for palimony against the estate of her deceased paramour.  She probably had very little knowledge of what other matters her attorney was handling in his office.  Little did she know that her attorney, just months before beginning his representation of Carol Brundage, represented another woman, Jeanette Levine, in a different county, but also for a claim of palimony.  Carol Brundage also is likely not to have known that in Ms. Levine’s case, the trial court determined that she would not succeed on her claim for palimony because cohabitation was an essentail element for success on a palimony claim, and those parties had not lived together.  Her attorney filed an appeal raising the question of whether cohabitation is an indispensible element of a cause of action for palimony.  (Click here for  Eric Solotoff’s blog entry above on the recent Supreme Court decision in that regard).  Carol Brundage never lived with her now deceased paramour.

Her attorney went on to represent Carol Brundage with his appeal on the Levine matter pending. The Estate filed an application to dismiss Ms. Brundage’s Complaint claiming that cohabitation was an essential element.  In his representation of Ms. Brundage, her attorney convinced the trial court that cohabitation was not essential and thus the Estate’s application was denied.  In his argument, her attorney failed to mention his experience with the trial court in Ms. Levine’s case nor did he mention that the issue was pending on appeal.

The Estate then filed a motion for leave to appeal with the Appellate Division.  In opposing that motion, the attorney did not disclose the contrary conclusion reached by the trial court in Ms. Levine’s matter or the fact that an appeal was pending.  The Appellate Division denied the Estate’s motion and eventually the parties’ settled.

Just prior to the payment to Ms. Brundage being due and owing from the Estate, the Appellate Division published its’ opinion in the Levine matter. The Estate filed an application to set aside the agreement reached with Ms. Brundage based upon the concealment of a material fact, same being that the attorney was aware of the pending Levine matter and did not disclose it. The trial court declined the relief sought by the Estate on the grounds that the trial court’s decision in Levine would not have been binding upon another trial court and was not required to have been disclosed by the attorney. The Estate filed an appeal.

This time around the Appellate Court heard the matter and determined that pursuant to the Rules of Professional Conduct, which is the code of ethics that govern attorneys practicing law in this state, the Estate would be entitled to relief if the existence of the Levine appeal was a material fact. Because the parties must file a statement with the Appellate Court, which asks specific information and disclosure of existing similar appeals, public policy would have favored granting the Estate’s initial motion for leave to appeal. Further, the court held that the existence of the Levine appeal was a material fact, which created an ethical duty for the attorney to have disclosed it and was a duty that he violated.

The Supreme Court in reviewing the record below held that while the attorney “approached but did not exceed the bounds of acceptable behavior identified by our ethical rules. It was a course of conduct the Court neither applauds nor encourages, but one that our rules do not prohibit. Thus, the imposition of a litigation sanction on the attorney’s client cannot be condoned.”

While attorneys always want to be zealous advocates for their clients, there is a fine line between zeal and inappropriate conduct. In the end, it turned out that the attorney’s behavior, which resulted in lengthy, costly and most likely stressful litigation, could have easily been avoided and the disclosure of the Levine appeal would not have hurt Ms. Brundage’s case.

Sometimes clients ask or want their attorneys to cross the line because they so desire a certain result. The reality is that not only is the risk not worth it for the client but it is certainly not worth it for the attorney, who faces severe punishment.