It's rare indeed that a New Jersey district ethics committee recommends a sanction and the state Disciplinary Review Board disagrees, but it happened June 18 in the case of a Rockaway solo accused of dragging his feet in an estate case and then refusing to cooperate with substituted counsel.
Not only had Jeffrey Grow not neglected the case, but he actively tried to assist the client even after being discharged, the DRB found.
"In sum, we find no clear and convincing evidence that respondent's actions failed to protect the estate in any way," the board held, dismissing all charges.
Arthur Hoffman died on Feb. 22, 2007, leaving his estate in equal shares to his four sisters, including his executrix, Helen Mantooth. She retained Grow.
In April 2007, Grow supervised the sale of Hoffman's house for $425,000. The buyer's attorney held $67,000 of the proceeds in escrow, pending receipt of an inheritance tax waiver. In May, Grow filed an inheritance tax return. That November, after receiving the tax waiver, Grow asked the buyer's attorney to return the $67,000, but the funds were not received until February 2008.
On April 28, 2008, Grow received a letter from New Providence solo Juan Ryan, who said he was hired by the estate to recover the proceeds from the home sale. Ryan accused Grow of "inexcusable delay," asserting that he had ignored requests by Mantooth for an accounting and distribution of the proceeds. Ryan threatened to sue Grow and to report him to disciplinary authorities.
Grow replied on April 30 that he had not yet distributed the proceeds because of the late discovery of a second bank account belonging to Hoffman -- necessitating the filing of an amended tax return -- and the belated receipt of the buyer's escrow.
On June 30, sister Evelyn Whitley filed a grievance, accusing Grow of not complying with numerous written requests for information, and in July, Mantooth terminated him.
On July 15, Ryan wrote Grow to ask about what he saw as errors in a proposed final accounting sent to Mantooth. On Sept. 23, Grow sent Ryan an amended version of the accounting. On Nov. 24, Ryan wrote to Grow about checks from a pension plan and a life insurance company that did not appear in the final accounting, and on Dec. 18, complained to the District XB Ethics Committee investigator that Grow did not respond to his inquiry about the checks.
In testimony before the committee, Ryan said Grow overreported the estate's income by $100,000 on a tax return by failing to use a $25,000 deduction for each sister and overpaid estate taxes by $9,000. In addition, Grow's accounting lumped together assets, liabilities and expenses, Ryan said.
During his testimony, Grow, who appeared pro se, admitted he made the tax return error but said it was rectified when he obtained a refund.
He disputed the characterization of his accounting methods as improper and said he had sent Mantooth copies of all relevant documents. He also said he eventually realized that the sisters were not on speaking terms with each other and that was hampering communication in the case.
In addition, he said that before he was contacted by Ryan, he heard from at least two other attorneys on behalf of the sisters, but those attorneys were never heard from again and he assumed Ryan would "disappear" as well.
He said after Ryan contacted him, he called Mantooth to find out whether his representation was terminated, but was unable to reach her, Grow said.
The committee found Grow made "numerous mistakes" in his accounting and stuck his "head in the sand" when avoiding Ryan. The committee alleged that he violated New Jersey Rule of Professional Conduct 1.1(a), gross neglect, and RPC 1.16(d), failure to turn over a client's file to subsequent counsel, and it recommended censure.
But despite Grow's failure to respond to many of Ryan's requests for information, he performed the job expected of an attorney administering a will, the DRB concluded.
Grow did not neglect the case, "as evidenced by all that he accomplished during his tenure for the estate," the DRB wrote.
Grow presided over the sale of Hoffman's house, probated the will, prepared and filed numerous documents for tax purposes and "generally marshaled the assets of the estate," the DRB said.
While Grow should have replied to Ryan's November 2008 letter about the checks not included in the estate accounting, Ryan also could have investigated that matter with his client or the bank, the DRB said.
Grow says the committee members could have seen that the allegations were unfounded "but they chose not to. Thank God the central ethics committee saw it for what it is," Grow says.
"One thing is very clear -- in this day and age, people are way too aware that the way to control their attorney's behavior or to keep from paying them is to simply file an ethics charge," says Grow.
Ryan says he is not surprised that the charges were dismissed. He says Grow's acts were "clumsy" but "not particularly egregious."
http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202462918536&NJ_Disciplinary_Review_Board_Rejects_Sanction_Recommendation_for_Estate_Lawyer
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