SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Carole Brundage v. Estate of Carl V. Carambio (A-56-07)
Argued April 8, 2008 -- Decided July 15, 2008
HOENS, J., writing for a unanimous Court.
In this appeal, the Court considers the scope of the authority of the courts to visit upon a client the burden of a penalty imposed because of his or her attorney’s violation of the obligation of candor to a tribunal.
Carol Brundage was represented by Patrick T. Collins in a family law matter. Prior to his filing a complaint in the Brundage matter, Collins represented Jeanette Levine, the plaintiff in a pending matter in Essex County where the critical issue was whether cohabitation was an essential element of a palimony claim. In June 2004, the Family Part judge in the Levine matter issued an unpublished decision granting defendant’s motion to dismiss the complaint, concluding that because the cause of action rested on the existence of a marital-type relationship, no palimony claim could proceed without evidence of cohabitation. Collins appealed to the Appellate Division, raising the question of “whether cohabitation is an indispensable element of a cause of action seeking palimony support.”
While the Levine appeal was pending, Brundage retained Collins to represent her in a palimony claim against defendant, Estate of Carl Carambio (Estate). In October 2004, Collins filed a complaint on behalf of Brundage in the Family Part, Union County. Similar to the parties in the Levine matter in the Essex County, Brundage and Carambio had not cohabitated at any time during the course of their relationship. In her complaint, Brundage alleged that Carambrio had made an oral promise to support her for the rest of he life and had instructed his attorney to draft changes to his estate plan to effectuate that promise, but that his wishes had been thwarted by Carambio’s family who had prevented him from executing the revised will during the last days of his life. Brundage argued that, notwithstanding the failure of the parties to cohabitate, those facts evidenced a promise sufficient to support a right in contract that survived Carambio’s death as a claim against his estate.
Following discovery, in April 2005, the Estate moved to dismiss the complaint, contending that cohabitation was an essential element of a palimony cause of action and that Brundage’s stipulation that she and Carambrio had not cohabitated was a fatal flaw warranting dismissal. In opposition to that motion, Collins filed a brief in which he argued, as a matter of law, that cohabitation was not an essential element of the palimony cause of action. Although the argument was consistent with the position taken in the Levine matter, Collins did not disclose to the trial court the existence of that matter, that the trial judge in Levine had decided the issue against him, or that the question was then pending on appeal.
Collins opposed the Estate’s motion, making four carefully worded statements in his brief regarding published and reported decisions in New Jersey that have since become the focus of these proceedings because of Collins’ failure to reveal the existence of the Levine matter. In July 2005, the Family Part judge denied the Estate’s motion to dismiss, concluding that there was a sufficient factual basis on which to deny the motion to dismiss.
The Estate then moved before the Appellate Division for leave to appeal. In opposing that motion, Collins did not disclose to the Appellate Division judges either the contrary conclusion in the unreported decision in the Levine matter or the fact that an appeal was pending. The Appellate Division denied the Estate’s motion for leave to appeal. Thereafter, in October 2006, the parties reached a settlement, wherein the Estate agreed to pay Brundage $175,000 by February 1, 2006.