Let Me Be Not Very Clear About This

In 2005, Angel Jimenez was indicted on a charge of murder.  His family retained Richard Simon, a lawyer of long experience who'd known the family for many years, to defend Angel.  And he did.

I've written before what every lawyer worth her salt knows.  The correct answer to every legal question is

It depends.

It depends on all sorts of things.

• It depends on all the facts and circumstances, not just the ones that you (or I) think matter or that the client tells the lawyer or that the lawyer thinks to ask about or that turn up in investigation.
• It depends on who gets to decide the answer.  Will it be a judge or a jury or a panel of judges or a whole court and who's going to decide it last?  And which individual judge or judges and who will those jurors be?  And what did they have for breakfast? or Lunch? or at the Bar?  And did they get lucky last night?
• It depends on whether the Moon is in the seventh house and Jupiter aligns with Mars (look it up).
• It depends on what the judge down the hall did - and whether the judge in this case likes the judge down the hall.
• It can even depend (though never in Ohio because the Mark Gardner rule makes that clear) on whether the judge or judges are honest and who made a really good campaign contribution.
• It can depend on precedent (though far less often than law school faculty pretend it does).

Sometimes it even depends on whether there's a rule or a law.  And what it says.

And sometimes not.

Richard J.Simon, a lawyer in New Jersey, got himself caught up in that space between what the rules do and don't say, and whether they need to, and what it means when they do or don't, but also in speculation about whatever he really meant and why and just how damned desperate things were/are/could become.

Simon, no newbie here, has been practicing law for over 31 years.  He'd known Angel's family for years, and in particular believed Angel's brother to be financially responsible and to have the means to pay him.

Simon took a retainer of $10,000 with the understanding that the family would pay him, as Angel's case developed, at his hourly rate of $325.  The retainer agreement the family signed specifically said that if Simon didn't get paid, he could withdraw from the case.

You know the next part of the story.  Simon got stiffed.  Tens of thousands of dollars worth stiffed.  (At one point the outstanding balance came to just short of $87,000.  And that was before trial.

Simon asked to withdraw.  The judge said no.  So Simon, obeying all the preliminary steps New Jersey says you have to go through, sued the family for the money.  He named Angel, too, even though he knew Angel had no money and wasn't really going after him.  the thing is, if he didn't sue Angel, he'd have been thrown out of court.

Simon said he saw no problem in this.  He was prepared to go to trial and defend the client he was suing.  He said.

The judge said no.  Threw him off the case.  And turned him in to the New Jersey legal disciplinary system.  Which did its thing.

The law, the rules, all that stuff on which we rely, Simon said, it's unclear.  There's nothing like this in New Jersey law.  Maybe there should be a rule, but there isn't.  No flies on me.

Yeah, right.

Because, you see, there only have to be actual rules in place when we want that result.

Simon lost before the District Ethics Committee.  The Disciplinary Review Board (this is New Jersey which operates however it operates) agreed.

It determined "that the DEC's conclusion that respondent's conduct was unethical [to be] fully supported by clear and convincing evidence."

Well, maybe, though Simon disagreed.

The DRB stated that, “[o]bviously, by suing an existing client, respondent placed himself in an adversarial position vis-à-vis the client, a situation that jeopardized his duty to represent [defendant] with the utmost zeal.”

Yeah, that makes sense.  But there's still that question about whether there's a rule and what it says if it exists and whether Simon actually violated it.  Or maybe it doesn't matter.

[The DRB] also rejected the notion that guidance was necessary because no guidance is needed for something so “axiomatic.” Thus, for the DRB, “despite the paucity of rule or law on the subject -- or precisely because of it -- the basic truth is that lawyers cannot sue present clients without immersing themselves in an untenable conflict of interest.”

You know.  You should have guessed.

Let's be clear.  It was a bozo move.  If Simon's telling the truth when he says that he wasn't suing in order to get off the case, and thought, really, that there would be no problem with him staying on to defend Angel while suing him, then he's delusional.  (Which is not to say that it would be delusional to imagine that the judge might force him to do that - the delusion would be in believing it proper.)  And if he knew better, if he understood what he was doing and lied to the disciplinary folks about it, then he's got a couple of problems.

In any event, he asked the New Jersey Supremes to review, which they did.  

The case is In the Matter of Richard J. Simon, An Attorney at Law, and while acknowledging the rules aren't clear ("Mitigating respondent’s conduct is the OAE’s concession concerning a perceived lack of clarity in the RPCs"), it agreed that Simon violated them.

Respondent first sought unsuccessfully to withdraw in the face of mounting unpaid fees. However difficult respondent’s situation may have been, the clear inference from the record is that, having been unsuccessful in his efforts to withdraw from his representation of Jimenez, respondent engaged in what amounts to “self help” and filed suit against his client for the purpose of forcing his withdrawal. By filing suit, respondent knowingly created an irreconcilable conflict of interest for that purpose, and that conduct cannot be tolerated.

Or maybe his "knowing creat[ing] an irreconcilable conflict of interest" wasn't really the problem. Maybe the rule is, as we say in the law, strict liability.  At least now that it maybe exists.

Whether or not the OAE’s concern is legitimate, we hold, consistent with the mandate of RPC 1.7(a), that attorneys shall not sue a present or existing client during active representation.

But maybe not.

We emphasize that an attorney may not seek a remedy against a client for the purpose of creating a conflict under our RPCs in order to withdraw from a case.

Frankly, I don't know whether it's an absolute prohibition or not, and I've just read the opinion four times.  Fortunately, I don't practice law in the Garden State.  But enough about me.  The NJ Supremes reprimanded Simon.

Though not without dissent.

Justice Rivera-Soto agreed that Simon acted unethically.  He agreed that Simon should be found to have acted unethically.  His dissent?  There should have been no punishment, no consequence.  He wrote:

To the extent that the majority reaches the truly unremarkable conclusion that, save for very limited circumstances not relevant here, a lawyer cannot ethically sue a current client, I concur. However, to the extent, in imposing discipline, the majority gives far too little weight to the insoluble quandary in which lawyers find themselves when, already in a financial hole, they are forced to hopelessly continue to dig themselves into a yet deeper and potentially bottomless financial abyss, I must dissent. 

And then he laid it out.

Through no fault of his own, respondent Richard J. Simon found himself in precisely that quandary: he already was owed tens of thousands of dollars in fees, with no reasonable prospect of payment; he was facing the likelihood of defending an all-consuming and lengthy murder trial also without hope of payment of his fees; and his entirely proper application to withdraw as counsel had been denied, seemingly without full and complete consideration of those very real and grave concerns. That combination of events was deadly and guaranteed that respondent’s financial position would only deteriorate further. For a lawyer in a large firm, those concurrent events would be onerous but perhaps ultimately bearable; for a sole practitioner like respondent -- who must bear that burden alone -- that combination is likely ruinous.

Which is why we in the criminal law biz generally want all the money up front.  What we don't get then, we mostly never get.  But that's a digression from the real point.

Which is that Simon got punished for a violation that isn't clearly a violation even though everybody (except maybe Simon) thinks it should be.  And then the Supreme Court made it a violation. Absolute and complete. Or not.

Which means that we still don't know.  And neither will the next guy.  Or the one after that.

Because the remedy for uncertainty is uncertainty.