New Jersey's Committee on Attorney Advertising held a hearing Monday to decide whether legal ethics rules were violated by the placing of a lawyer's advertising leaflet on the windshield of a rape victim's car.
The victim, known in court papers as K.D., claims an orange flyer from Fred Zemel's Newark, N.J., firm appeared on her car on or about Feb. 19, 2007 -- two months after the sexual assault occurred. It touted the firm's services to anyone who had been the victim of "rape and assault in your building or apartment." No other car parked nearby had such a flyer on it, leading K.D. to assume the flyer was directed at her, she says.
In a formal complaint stemming from a grievance lodged by K.D.'s lawyer, the committee charges Fred Zemel with violating Rule of Professional Conduct 7.3(b)(5), which prohibits unsolicited direct contact with a prospective client except by a mailing that must include certain notices and disclosures, and RPC 7.3(b)(1), which bars communicating with someone whose physical, emotional or mental state might impair the decision to hire a lawyer.
On Dec. 14, 2006, K.D. was sexually assaulted during an inspection of her federally subsidized apartment, while one of her children was home. Albert Foster, a Newark Housing Authority employee since 1993, turned himself in to the Essex County Prosecutor's Office in January 2007. He was charged with second-degree sexual assault and second-degree official misconduct. He pleaded guilty to the charges and was sentenced to concurrent terms of nine years for official misconduct and seven years for the sexual assault.
K.D. sued the Newark Housing Authority last December in state court, alleging it knew of prior sexual attacks by Foster and covered them up.
Though most news accounts identified K.D. only by her initials, her name was disclosed on television, says Richard Pompelio, whose firm, Pompelio Foreman & Gray in Whippany, N.J., represents K.D. in the tort claims case. K.D. was referred to the firm by the Newark Rape Crisis Center.
Pompelio's law partner, David Gray, says K.D. called him about the flyer, "upset and crying," thinking Zemel's firm must have investigated her and feeling her privacy had been violated. Gray says he felt obligated to report what he saw as an egregious ethics infraction.
The matter, Committee on Attorney Advertising v. Zemel, CAA Docket No. 14-2007, was heard Monday by Hackensack, N.J., solo Cynthia Cappell, the chairwoman; Sheryl Mintz Goski of Herold Law in Warren, N.J.; and Elizabeth Fuerst, the public member.
Zemel testified at the hearing, as did Dozier, Gray and K.D.
Zemel, in his answer filed July 10, denied that he deliberately targeted K.D. or that he even knew about her case, where she lived or whether she had a motor vehicle.
He admitted that he "did cause a Mr. Dozier, who was employed by a company other than Respondent's law practice to generally circulate flyers" but said he gave him Dozier no directions about specific areas in which to do so.
He says his lack of intent to target K.D. is shown by the fact that "similar flyers had been circulated in the same format long prior to the alleged crime."
Zemel also denies that the flyers constituted a direct contact and noted that when distributed, more than 60 days had passed since the rape and more than 30 days since the first newspaper accounts were published.
Zemel's attorney, S.M. Chris Franzblau, of Franzblau Dratch in Livingston, N.J., says, "there was absolutely no evidence presented that Mr. Zemel or any member of the Zemel law firm ever contacted the complainant or ever attempted to contact the complainant and never made any inquiry about the complainant's identity, address, car ownership or otherwise. The only evidence presented was that an advertisement was placed on a windshield owned by the complainant while parked on the public street in Newark, New Jersey."
The ethics presenter, Lambertville, N.J., solo William Flahive, declines comment.
Zemel, a graduate of Touro College's Jacob D. Fuchsberg Law Center who was admitted to the New Jersey bar in 1987, has no disciplinary history,
The ethics complaint, filed on Oct. 9, 2008, originally named as the respondent Zemel's sister, Margo Zemel, a Newark solo who once practiced with Fred as Zemel & Zemel. Fred Zemel says that when the complaint arrived naming his sister, "we sent a letter saying she was not with the law firm." The complaint was amended in June.
After the attack on K.D. was reported, four other female tenants of federally subsidized housing came forward with claims of groping and other criminal sexual contact by Foster in 2004 and 2005. Their charges were subsumed in the K.D. plea, according to Assistant Essex County Prosecutor Walter Dirkin. Gray says the other women will testify for K.D. in the civil suit.
