(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).
Argued October 14, 1998 -- Decided December 4, 1998
PER CURIAM
This is an attorney disciplinary matter, which arises from a recommendation for discipline filed by
the Committee on Attorney Advertising (CAA) against respondent, Patrick M. Pajerowski.
Pajerowski, who was admitted to practice in 1978, maintains a law office in Newark, New Jersey.
He entered into a Stipulation of Facts and Discipline in which he admitted that he had violated numerous
Rules of Professional Conduct (“RPCs”) , the most serious of which included RPC 1.8(e)(acquiring
proprietary interest in client's cause of action); RPC 5.4(splitting fees with nonlawyer); RPC 5.5(assisting in
unauthorized practice of law); RPC 7.2(c)(giving something of value for recommending legal services); RPC
7.3(b)(soliciting client unable to exercise reasonable judgment); and RPC 7.3(d)(providing compensation for
recommending lawyer's services). The Stipulation detailed respondent's misconduct, which can be grouped
into four categories: the Runner cases, the Loan cases, the Failure to Communicate case, and the Conflict of
Interest case.
In the runner cases, between 1991 and 1994, Pajerowski solicited clients through his office manager
and investigator, who contacted accident victims either at their homes or in hospitals on the same day that
the accidents occurred or shortly thereafter. In most of those cases, Pajerowski did not know the physical,
emotional or mental state of many of his prospective clients and therefore could not know whether they
could exercise reasonable judgment in retaining his services. Moreover, in one of those cases, respondent
undertook to represent both driver and passenger in a vehicle, without disclosing the circumstances of the
multiple representation and without obtaining their consent thereto. In addition, in many of these cases, the
runner had either directed the victims to a particular medical provider for treatment or offered to do so,
regardless of whether the victims had complained of injury. Finally, respondent had paid the runner wages
far in excess of the reasonable value of his services as an office manager and investigator.
Pajerowski also stipulated that in ten separate matters, he had provided financial assistance to
individual clients in connection with their pending or contemplated litigation by advancing sums of money up
to the amount he thought would be the net settlement or recovery on the particular claim. Moreover,
Pajerowski failed to explain to those clients the potential conflicts that could arise from advancing money and
did not suggest that those clients execute any written agreement for the loan transactions.
The stipulation further provided that throughout the five years during which a particular personal
injury matter was pending, Pajerowski failed to communicate with his client in any form whatever.
Pajerowski settled that matter without any input from or communication with his client.
In the Stipulation of Facts and Discipline, the CAA recommended a three-year suspension.
However, a majority of the Disciplinary Review Board (“DRB”) recommended disbarment, concluding that
Pajerowski's misconduct was so unsavory and repugnant to the profession and harmful to the victims that
the public would be effectively protected only by his disbarment. The majority further indicated that it
“[would] not hesitate to recommend disbarment when a pattern of pervasiveness is proven by the requisite
standard of proof.”
The dissenting members of the DRB believed that Pajerowski's misconduct did not rise to the level
of misconduct that would justify disbarment. Focusing on Pajerowski's cooperation with the disciplinary
authorities and his acceptance of the impropriety of his conduct, the dissenting members concluded that he
should be suspended for three years.
The matter was before the Supreme Court pursuant to R. 1:20-16(a).
HELD: Pajerowski is disbarred for his serious and numerous acts of misconduct with respect to the runner
cases, together with his other ethical transgressions.
1. Although Pajerowski may have been unaware of each solicitation at the time it occurred, by previously
authorizing such conduct and by subsequently ratifying it by accepting the clients and paying the runner,
respondent encouraged the runner to engage in similar future misconduct, and therefore violated RPC 5.3;
RPC 7.1(a); RPC 7.3(b); RPC 8.4(a); and RPC 8.4(d). (pp. 8-9)
2. By giving the runner such a substantial salary, Pajerowski was compensating him to recommend or secure
his employment by clients and thus engaged in unethical fee-splitting with a non-lawyer and assisted him in
the unauthorized practice of law, in violation of RPC 5.4; RPC 5.5; RPC 7.2 and RPC 7.3(d). (pp. 9-10)
3. By representing both driver and passengers without disclosing the potential conflict of interest or
obtaining his clients' consent to the multiple representation, and by continuing to represent the passengers
after terminating the representation of the driver, Pajerowski violated RPC 1.7(a) & (b) and RPC 1.9(a).
(p.10)
4. By failing to communicate with his client over the five year period during which her claim was pending,
and by failing to consult with her prior to settlement of her claim, Pajerowski violated RPC 1.2(a); RPC 1.3,
and RPC 1.4(a). (p. 10)
5. In advancing sums to clients, Pajerowski violated RPC 1.7(b)&(c) and RPC 1.8(e)&(j). (pp. 10-11)
6. When an attorney pays a runner to solicit clients, numerous problems arise that adversely affect the
public, the bar and the judicial system, presenting an opportunity for fraud, undue influence, intimidation,
overreaching, and other forms of vexatious conduct. (pp. 15-17)
7. Although the public needs to be protected from the solicitation of legal business by runners, every
“runner” case will not call for disbarment. Rather, the circumstances surrounding each case will be
considered in determining the appropriate measure of discipline. (pp. 17-18)
8. Pajerowski's knowledge and countenance of the runners' conduct in assisting his clients to file false
medical claims poisons the well of justice and constitutes grave misconduct that goes to the heart of the
administration of justice. (pp. 18-19)
Patrick Pajerowski is DISBARRED and is to reimburse the Disciplinary Oversight Committee for
appropriate administrative costs.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN, and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
224 September Term 1997
IN THE MATTER OF
PATRICK M. PAJEROWSKI,
An Attorney at Law.
Argued October 14, 1998--Decided December 4, 1998
On an Order to Show Cause why respondent should
not be disbarred or otherwise disciplined.
Robert J. De Groot argued the cause on behalf
of the Office of Attorney Ethics.
Lewis P. Sengstacke argued the cause for
respondent (Davis, Saperstein & Salomon,
attorneys).
PER CURIAM
This matter arises from a recommendation for discipline
filed by the Committee on Attorney Advertising ("CAA") against
respondent, Patrick M. Pajerowski. Respondent and the CAA
executed a Stipulation of Facts and Discipline in which
respondent admitted that he had violated the following Rules of
Professional Conduct: RPC 1.2(a) (failing to abide by client's
decision); RPC 1.3 (failing to act with diligence); RPC 1.4(a)
(failing to communicate); RPC 1.7(a), RPC 1.7(b), and RPC 1.7(c)
(representing clients with conflicts of interest); RPC 1.8(e)
(providing financial assistance to client); RPC 1.8(j) (acquiring
proprietary interest in client's cause of action); RPC 1.9(a)
(representing client with interest adverse to former client); RPC
5.3 (failing to properly supervise nonlawyer); RPC 5.4 (splitting
fees with nonlawyer); RPC 5.5 (assisting in unauthorized practice
of law); RPC 7.1(a) (providing misleading communication about
lawyer's services); RPC 7.2(c) (giving value for recommending
legal services); RPC 7.3(b) (soliciting client unable to exercise
reasonable judgment); RPC 7.3(d) (providing compensation for
recommending lawyer's services); RPC 8.4(a) (violating Rules of
Professional Conduct); and RPC 8.4(d) (engaging in conduct
prejudicial to the administration of justice).
In seventy-three paragraphs, the Stipulation detailed
respondent's misconduct. It proposed a three-year suspension. A
majority of the Disciplinary Review Board (DRB) voted to disbar
respondent. Three members voted to impose a three-year
suspension. Based on our independent review of the record, we
are persuaded that the evidence clearly and convincingly
establishes that respondent should be disbarred.
Respondent, who was admitted to the bar in 1978, maintains a law office in Newark, New Jersey. His misconduct can be grouped into four categories: the Runner cases, the Loan cases, the Failure to Communicate case, and the Conflict of Interest case.
The Runner cases present respondent's most serious ethical transgressions. From February 16, 1991 through December 29, 1994, respondent employed Kenneth Burgess as a runner to solicit business for him.
The DRB decision summarized the stipulated facts with regard to the runner cases as follows:
The Bartee Matter
On December 28, 1994, a vehicle driven by Kimberlee Bartee was involved in an accident. Her brother, John Bartee, Jr., and a friend, Chanel Churchwell, were passengers in the car. The next day, Burgess and an unidentified man visited the Bartee home and left a solicitation letter for Kimberlee Bartee. Upon receiving a call from her, Burgess returned to the Bartee residence with retainer agreements. He directed Kimberlee to complete a form, in which she complained of back and head pain. Burgess told Kimberlee that she should visit a particular doctor for treatment. The doctor was an internist selected by respondent's office. Burgess also told Kimberlee that she should obtain treatment two or three times per week to bolster the claim. When John Bartee indicated that he also had been involved in the accident, Burgess directed him to complete a form as well, in which John complained of back and head pain.
Although not injured in the accident,
Kimberlee and John Bartee obtained treatment
from the doctor recommended by Burgess.
According to a statement given by Kimberlee
to Home Insurance Company, which was
investigating possible insurance fraud, all
of the patients in the doctor's waiting room
had indicated that they had been referred by
respondent. Kimberlee told Home Insurance
Company that neither she nor her brother had
suffered any pain until after they were
treated by the doctor. The pain disappeared
only after they discontinued the treatment.
At 6:00 P.M. on the day of the accident, December
28, 1994, Burgess and an unidentified individual
also went to Chanel Churchwell's home to solicit
her representation. Burgess obtained Chanel's
consent to retain respondent as her attorney.
Although respondent was engaged to
simultaneously represent the driver of the
vehicle and its passengers, he failed to
disclose to his clients the circumstances of
the multiple representation and to obtain
their consent thereto. According to
Kimberlee, she never met respondent or went
to his office.
On February 2, 1995, respondent notified
Kimberlee that he would not be representing
her, ostensibly because the police report and
other investigation demonstrated that she had
caused the automobile accident. Respondent
continued to represent the passengers, who
filed claims against Kimberlee, without
disclosing to all of them the circumstances
of the representation or obtaining their
consent to continue as their attorney.
The Lewis Matter
Tracey Lewis was treated at a hospital for
injuries sustained in an automobile accident
on October 3, 1993. The next day Burgess
appeared at Lewis's residence, gave her
respondent's business card and solicited
respondent's professional employment. At the
time of the solicitation, respondent did not
know if Lewis's physical, emotional or mental
state was such that she could exercise
reasonable judgment in employing a lawyer.
In fact, according to the investigative
report, Lewis was very upset that Burgess
went to her home. She had been traumatized
by the car accident and had not yet obtained
a copy of the police report. Despite making
it clear to Burgess that she was not
interested in retaining respondent, two weeks
later she received in the mail a t-shirt with
the logo of respondent's law firm on it.
The Santos Matter
On February 16, 1991, Eileen Santos was taken
to the emergency room of a hospital for
treatment, following a car accident. The
next day Burgess went to the Santos residence
and introduced himself as respondent's "legal
assistant." Burgess gave Santos a copy of
the police report, a retainer agreement and
other documents. Burgess told Santos that he
would arrange for examination and treatment
by a doctor as soon as she signed the
retainer agreement. At the time of Burgess's
solicitation, respondent did not know whether
Santos's physical, emotional or mental state
was such that she could exercise reasonable
judgment in employing a lawyer.
The Graves Matter
Regetta Graves was injured while riding as a
passenger on a New Jersey Transit bus on
September 21, 1993. On the same day Burgess
and another individual went to the Graves
residence. Burgess told Graves that
respondent represented other bus passengers.
He offered to refer her to doctors and to
assist her in obtaining compensation for her
injuries. Later that day a solicitation
letter from respondent was taped to Graves's
mailbox.
The Quarles Matter
On September 10, 1991, Andrew and Lucille
Quarles suffered injuries as a result of an
automobile accident. On the same day Burgess
went to the Quarles residence. Although he
was not able to see them, Burgess left
respondent's business cards, which listed
Burgess's name under the law firm's name.
This attempt to contact Mr. and Mrs. Quarles
occurred prior to the filing of police
reports. At the time of the attempted
solicitation, respondent did not know whether
the Quarleses' physical, emotional or mental
state was such that they could exercise
reasonable judgment in employing a lawyer.
The Harris Matter
George Harris, Jr. sustained injuries in an
automobile accident on December 5, 1991.
Later that day, Burgess left respondent's
business card at Harris's residence. The
business card listed Burgess's name under the
law firm's name. Burgess's attempted
solicitation took place before the filing of
police reports, at a time when respondent did
not know whether Harris's physical, emotional
or mental state was such that he could
exercise reasonable judgment in employing a
lawyer.
The Green Matter
On July 20, 1993, Janet Green was taken to a
hospital after being injured in an automobile
accident. Burgess approached her in the
emergency room, gave her one of respondent's
business cards and told her that respondent
would obtain a larger monetary award for her
than any other attorney. At the time of this
solicitation, respondent did not know whether
Green's physical, emotional or mental state
was such that she could exercise reasonable
judgment in employing a lawyer.
The Gonzalez Matter
Adelaida Gonzalez was injured in an
automobile accident on July 20, 1993.
Burgess visited her at the hospital emergency
room, handed her respondent's busines card
with Burgess's name on it and solicited her
to retain respondent as her attorney. Later
Burgess contacted Gonzalez by letter and
telephone to persuade her to retain
respondent. At the time Burgess approached
Gonzalez, respondent had no knowledge of
whether her physical, emotional or mental
state was such that she could exercise
reasonable judgment in employing a lawyer.
Respondent stipulated that in ten separate matters, he had provided financial assistance to individual clients in connection with their pending or contemplated litigation by advancing sums of money up to the amount he thought would be the net settlement of their particular claim. Respondent failed to explain to those clients the potential conflicts that could arise from advancing money and did not suggest that those clients execute any written agreement for the loan transactions. Respondent stipulated that he was unaware that such financial assistance to clients was prohibited.
The DRB decision summarizes the Evans case as follows:
According to the stipulation, on March 4, 1991 respondent undertook to represent Dora Evans after she was involved in an automobile accident. Respondent received and accepted a settlement offer from one insurer and rejected a settlement offer from another. After respondent submitted to the first insurer a release executed by Evans, the insurer withdrew the offer. On July 22, 1993 respondent filed a complaint naming as defendants the drivers of both automobiles involved in the accident and the first insurer. On February 6, 1995, respondent obtained a default and then consented to vacate the default and to permit the insurer to file an answer. After respondent's motion to enforce the settlement was granted, he sent the net settlement proceeds to Evans on February 21, 1996. Respondent subsequently settled the litigation with the second insurer for $1,500. Throughout the five years during which the matter was pending, respondent failed to communicate with Evans. He did not return her telephone calls or send her any correspondence about the case.
As previously set forth in the Bartee matter, supra at ___ (slip op. at 3-4), respondent, without disclosing multiple representation or obtaining an informal consent from the parties, represented both the passengers, John Bartee, Jr. and Chanel Churchwell, and Kimberlee Bartee, the driver. When respondent terminated his representation of Kimberlee, he continued to represent the passengers without securing their consent.
Respondent has cooperated with the disciplinary authorities and has accepted the impropriety of his conduct. He has no prior disciplinary record. He also claims as a mitigating factor that his alcoholism impaired his ability to make ethical judgments. He has been in treatment for that disease and claims he has not consumed any alcoholic beverages since May 1997.
The DRB found that respondent had violated the Rules of Professional Conduct. Based on our independent review of the record, we are persuaded that the evidence clearly and convincingly establishes that respondent has committed the eighteen violations of the Rules of Professional Conduct with which he has been charged.
Respondent solicited clients through his runner, Kenneth Burgess, who contacted accident victims either at their homes or in hospitals on the same day that the accidents occurred or shortly thereafter. Burgess would speak to the victims or their relatives and attempt to persuade them to retain respondent to represent them in connection with their claims. He would bring retainer agreements with him. If he was unable to see the victim or their relatives, he would leave respondent's card, and then follow up in some instances by posting letters in the prospective clients' mailboxes. In many cases, respondent was not aware of the extent of the victims' injuries. He did not know the physical, emotional or mental state of many of his prospective clients. Consequently, he did not know whether they could exercise reasonable judgment in retaining his services.
In his brief, respondent claims that he did not preauthorize the gross improprieties committed by Burgess, such as soliciting clients in emergency rooms on the days of their accidents, or at their homes shortly after their accidents. Nonetheless, the Stipulation recites that although respondent was unaware of each solicitation at the time it occurred, he had previously authorized such conduct and subsequently ratified it by accepting the clients and paying Burgess. As a result, respondent encouraged Burgess to engage in similar future misconduct. Accordingly, respondent in the Runner cases violated Rule 5.3, Rule 7.1(a), Rule 7.3(b), Rule 8.4(a) and Rule 8.4(d).
Moreover, respondent paid Burgess wages far in excess of the reasonable value of his services as an office manager and investigator. Burgess' salary was $1200 per week in 1992, for an annual salary of $62,400, but was increased to $3500 per week in 1994, or $182,000 per year. During the Board hearing, it was observed that Burgess' earnings exceeded those of the average attorney in New Jersey. Respondent stipulated that by giving Burgess such a substantial salary he was "compensating him or giving him something of value to recommend or secure respondent's employment by clients, or as an award for having made recommendations resulting in respondent's employment by clients." Respondent engaged in unethical fee-splitting with Burgess, a nonlawyer, assisted him in the unauthorized practice of law and compensated him monetarily for recommending his services to prospective clients. By so doing, respondent violated Rule 5.4, Rule 5.5, Rule 7.2(c) and Rule 7.3(d).
In the Bartee matter, respondent engaged in a conflict of interest situation. As previously observed, respondent represented Kimberlee Bartee, the driver of an automobile involved in an accident, at the same time that he represented the two passengers who had been in Bartee's vehicle. By representing both the driver and passengers without disclosing the potential conflict of interest or obtaining his clients' consent to the multiple representation, respondent violated Rule 1.7(a) and Rule 1.7(b). In addition, by continuing to represent the passengers after terminating the representation of Bartee, respondent violated Rule 1.9(a).
Respondent also acted unethically in the Evans matter. He filed a complaint against an insurance company to enforce a settlement. In the five years during which that complaint was pending, respondent did not communicate with Evans, return her telephone calls or send her copies of any correspondence. Also, he did not consult with her about the settlement of her case and took almost two years to obtain a default against the insurance company that had withdrawn a settlement offer. Respondent's conduct in the Evans matter violated Rule 1.2(a), Rule 1.3 and Rule 1.4(a).
Respondent also admitted that he advanced sums of money to clients in ten instances and that he did not explain to them the inherent conflict of interest resulting from such loans. Respondent neither prepared loan documents nor suggested that his clients sign any documentation regarding the transactions. In advancing sums to clients, respondent violated Rule 1.7(b), Rule 1.8(e), and Rule 1.8(j). Although the Stipulation did not specifically correlate Rule 1.7(c) to any particular act of misconduct, respondent's simultaneous representation of the driver and passengers of the same vehicle, as well as his advancing of sums to ten clients, constituted violations of that rule.
The DRB agreed that respondent had violated the eighteen Rules of Professional Conduct but disagreed on the appropriate discipline to be imposed with respect to the Runner cases. The majority of the DRB recommended disbarment. It stated:
In these matters, respondent took gross advantage of accident victims almost immediately after the accidents occurred, disregarding their right to privacy. Through his agent, Burgess, respondent attempted to take advantage of individuals when they were most vulnerable. Sadly, in many cases he succeeded. Burgess's actions in visiting accident victims at their homes, and particularly at hospital emergency rooms, constituted the practice of "ambulance-chasing" that is so unsavory and repugnant to the legal profession. The effect upon an accident victim cannot be understated. Victims must have a right to be insulated from those who would attempt to prey upon their vulnerability. Although it is not the primary purpose of discipline to punish, it is a primary purpose of discipline to protect the public. The public needs protection from this respondent and any others who might pursue the same course.
The DRB further observed:
Respondent's misconduct was not only
unprofessional and intrusive, but also
regrettably contributes to the negative image
that some members of the public associate
with attorneys. Respondent's misconduct not
only dishonored himself but also the
profession whose reputation this Board is
charged to protect. Respondent's ethics
violations damaged not only the prospective
clients he solicited, but also the entire
bar.
Indeed, the majority of the DRB found that "there is no
penalty short of disbarment appropriate for this fact pattern."
Accordingly, the DRB suggests that it "will not hesitate to
recommend disbarment when a pattern of pervasiveness is proven by
the requisite standard of proof."
The dissenting members of the DRB view respondent's
misconduct differently. They believe that it does not rise to
the level of conduct that would justify disbarment. They found
that respondent had not engaged in a continuous course of
misconduct that demonstrates an attitude wholly inconsistent with
and indifferent to ethical standards (thus warranting the label
"incorrigible"). Nor did they find that respondent committed an
offense of so gross a nature, such as bribery of a public
official, theft, or embezzlement, that no other penalty but
disbarment would be suitable. They particularly focused on
respondent's cooperation with the disciplinary authorities and
his acceptance of the impropriety of his conduct in determining
that appropriate discipline would be a three-year suspension.
Since In re Frankel, 20 N.J. 588 (1956), the seminal case on "runners," this Court has held that attorneys using "runners" to solicit clients are guilty of unethical misconduct. In Frankel, the respondent used a runner to solicit personal injury clients. He compensated the runner at the rate of twenty-five percent of his net fee. The Court found that Frankel had violated Canon 28, soliciting clients, and Canon 34, dividing fees with a nonlawyer. In imposing a two-year suspension rather than disbarment, the majority of the Court observed that Frankel was the first attorney to be prosecuted for this violation. Id. at 598. The Court also observed that Frankel had a previously unblemished professional reputation. Ibid. Nevertheless, the Court expressed its strong disapproval of the practice:
Frankel's offense is classed by the canon itself as one justifying disbarment. It is accounted a serious transgression of the ethical principle that is the sworn obligation of every practitioner of the law, the more reprehensible and vicious because the solicitation is had through agents and runners. See Chresle v. Commonwelath, 171 Ky. 77, 186 S.W. 919 (Ct. App. 1916); Drinker's Legal Ethics, p. 28 et seq. Quite apart from its own inherent vice and its contaminating influence as a competitive factor, it is a practice that tends to corrupt the course of justice, and so the more abominable and evil in its incidence, although it is but fair to say there is no suggestion of that here.
Further, the Court observed that "[f]or such infractions in
the future more drastic measures may be expected." Id. at 599.
In a strong dissent Justice Brennan, then of the New Jersey
Supreme Court, joined by Chief Justice Vanderbilt, advocated
Frankel's disbarment:
I do not think we can fail to emphasize the
seriousness of the offense committed by the
respondent. In the vernacular, it is 'ambulance
chasing,' * * * Three decades ago this pernicious
practice was rampant in many sections of the
country and led to numerous investigations which,
for a time at least, cleansed the profession of a
number of practitioners guilty of the most
flagrant abuses.
The next "runner" case was In re Introcaso,
26 N.J. 353, 359
(1958). There, the Court found that the respondent had violated
Canons 22, 27, 28 and 34, by employing a runner to solicit
clients in three criminal matters, by improperly dividing legal
fees, and by testifying with a lack of candor. However, because
Introcaso's conduct had occurred before the Court's decision in
In re Frankel, supra, and due to his unblemished reputation, the
Court imposed only a three-year suspension.
In 1972, the Court held that a three-month suspension from
the practice of law was appropriate discipline for a respondent
who accepted referrals and who had remitted part of his fees to
his runner. In re Bregg,
61 N.J. 476 (1972). In that case the
Court observed that the case was different from the "kind of
studied and hardened disregard for ethical standards, accompanied
by a total lack of candor, that was present in both In re
Frankel, supra, 20 N.J. at 588, and In re Introcaso, supra, 26
N.J. at 353." Id. at 478-79.
In In re Shaw,
88 N.J. 433 (1982), however, the Court
disbarred an attorney who represented both passenger and driver
involved in an accident suit, used a runner to solicit a client
in a personal injury case, "purchased" the client's cause of
action for $30,000, settled the case for $97,500 and then had his
runner forge the client's name on the check. In that case the
DRB recommended a suspension of three years. Observing that
["i]t is difficult to imagine a more sinister threat to a
professional relationship than the conduct so painstakingly
portrayed in the DRB's report," the Court held that respondent
must be disbarred. Id. at 442.
As recently as 1998, we voiced our strong disapproval of the
employment of a runner to solicit legal business. In re Ravich,
Koster, Tobin,
155 N.J. 357, 374 (1998). In observing that one
of the attorney's actions bordered on the "unethical practice of
running," we stated:
In In re Frankel,
20 N.J. 588,
120 A.2d 603
(1956), we disciplined an attorney for
entering into a monetary agreement with a
photographer who would visit accident scenes
and solicit negligence cases for the
attorney. We characterized the conduct as
"reprehensible and vicious" and a "serious
transgression of the ethical principle[s]."
Id. at 598,
120 A.2d 603. Misconduct based
on "running" remains a public and
professional concern. See, e.g., Assembly
Bill No. 1829 (reflecting view that the
hiring of a runner to solicit professional
services on behalf of an attorney should be
subject to criminal sanctions).
We recognize that when In re Frankel, supra,
20 N.J. 588 and
In re Introcaso, supra,
26 N.J. 353, were decided attorneys were
forbidden from soliciting business, either directly or through
employees or runners. See Canon 28 (then in effect); Canon 27
(forbidding "touters."). Today lawyers are allowed to advertise
and solicit business subject to reasonable regulations. Ohralik
v. Ohio State Bar Ass'n,
436 U.S. 447, 462,
98 S. Ct. 1912, 1921,
56 L. Ed.2d 444, 457 (1978). Nonetheless, when an attorney pays
a runner to solicit clients, numerous problems arise that
adversely affect the public, the bar and the judicial system.
Soliciting accident victims so soon after their injuries presents
an opportunity for "fraud, undue influence, intimidation,
overreaching, and other forms of vexatious conduct." Ibid. As
is evident in this case, Burgess was fabricating false medical
claims and respondent authorized such communications. For
example, with respect to the Bartee matter, respondent stipulated
the following:
7. Kenneth Burgess advised Kimberly Bartee
that Respondent's office would send her to a
doctor and that she would receive treatments
for her back two or three times a week. He
then directed her to fill out a form
indicating that she was suffering from back
and head pain.
8. When John Bartee, Jr. entered the room
and advised him that he too had been in the
car, Mr. Burgess directed him to fill out a
form indicating that he was suffering from
back and head pain.
9. Respondent authorized Kenneth Burgess to
communicate this information to prospective
personal injury clients such as Kimberly
Bartee and have them execute retainer
agreements and, in some instances, forms
indicating that they were suffering from back
and head pain.
Indeed, the dangers Justice Brennan discussed in his dissent in
In re Frankel, supra, 20 N.J. at 610 are amply demonstrated in
this case. Quoting from the 1929 Report of the Special Committee
on Professional Abuses in Accident Litigation, chaired by Henry
S. Drinker, Jr., Justice Brennan stated:
Such organized solicitation of accident
claims, conducted by such type men,
inevitably results in the manufacture of fake
claims, in the gross exaggeration of
scratches and bruises to the appearance of
major injuries, and in the fraudulent attempt
to attribute real injuries or ailments to
accidents which really had no causal relation
to them -- all by means of perjured
testimony, usually in collusion with one or
more of a class of physicians who make a
practice, for a contingent compensation, of
giving such expert testimony as will meet the
necessities of the case.
'The practice of 'ambulance chasing' is so
well known and so obviously improper as to
require no extensive comment. It is most
prevalent in large communities, and
comprehensive investigations and drives to
stamp it out have been held, with more or
less success, usually but temporary, in many
such jurisdictions.'
The primary purpose of discipline is to protect the public, and not to punish the attorney. In re Rutledge, 101 N.J. 493, 498 (1986). In In re Anis, 126 N.J. 448, 457, cert. denied subnom. Anis v. New Jersey Committee on Attorney Advertising, 504 U.S. 956, 112 S. Ct. 2303, 119 L. Ed.2d 225 (1992), a case involving direct-mail solicitations and not in-person solicitation, we "emphasized that one of the central goals of attorney discipline is to maintain public confidence in the bar and in the professionalism of its members." It is important that we preserve the confidence of the public in the integrity of the legal system.
Although the public needs to be protected from the solicitation of legal business by runners, we do not find that disbarment is called for in every "runner" case. In determining the appropriate discipline to be imposed in prior "runner" cases, supra, at ___ (slip op. at 14-17), we have considered the circumstances surrounding each case. We intend to adhere to that approach in such cases.
In examining respondent's conduct, we recognize that he has cooperated with the disciplinary authorities and has acknowledged the impropriety of his conduct. Respondent's misconduct with regard to the Loan cases, his failure to communicate in the Evans case, and his representation of both driver and passengers in Bartee would not require respondent's disbarment. However, respondent knew and condoned Burgess' conduct in assisting his clients to file false medical claims. Such misconduct "poisons the well of justice," and constitutes "grave misconduct that goes to the heart of the administration of justice." In re Verdiramo, 96 N.J. 183, 185 (1984); see also In re Edson, 108 N.J. 464 (1987) (disbarring attorney who counseled his client to fabricate evidence to meet elements of defense to legal action); In re Conway, 107 N.J. 168, 180 (1987) (corrupting judicial process by suborning perjury or tampering with witnesses merits disbarment).Indeed, one of the most serious problems associated with "runner" cases is that runners in order to increase their own compensation induce clients to exaggerate their claims and, in many instances, to file fraudulent claims.
Burgess' continued contact with the prospective clients, together with the very substantial annual salary of $182,000 paid to him, shows how pervasive and extensive were his solicitations for respondent. Respondent acted out of economic greed and took advantage of persons who were vulnerable. Respondent's actions harmed the public and cast the profession in a negative light. Considering the serious and numerous acts of misconduct committed with respect to the Runner cases, together with his other ethical transgressions, we find that no discipline short of disbarment is justified.
Respondent is disbarred. He is to reimburse the Disciplinary Committee for appropriate administrative costs.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in the Court's opinion.
NO. D-224 SEPTEMBER TERM 1997
Application for
Disposition Disbar
Decided December 4, 1998
Order returnable
Opinion by PER CURIAM