In the Matter of Hyderally, D-134 September Term 2010; Supreme Court; per curiam opinion; decided December 20, 2011. On an order to show cause why respondent should not be disbarred or otherwise disciplined. DDS No. 04-1-4627 [17 pp.]

Respondent Ty Hyderally was admitted to the New Jersey bar in 1994. He maintains a practice in Montclair, with several attorneys and a paralegal, known as “Hyderally & Associates, P.C.”

In 2005, respondent asked his cousin, Yusuf Asgerally, a California website designer and not an attorney, to create a website for his law practice. Asgerally added the seal of the New Jersey Board on Attorney Certification on 16 pages of respondent’s website, including those containing biographical information about respondent, his associates and his staff, none of whom has been certified in accordance with Rule 1:39. The seal remained on the site for more than two years.

In 2007, the Supreme Court Committee on Attorney Advertising received a grievance about respondent’s display of the seal. It referred the issue to the Office of Attorney Ethics (OAE), which filed a complaint charging respondent with violating Rule of Professional Conduct (RPC) 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

At the District V-C Ethics Committee (DEC) hearing, Asgerally testified that when he designed the website, he had no familiarity with legal terminology. He said that in reviewing websites of New Jersey attorneys to find “imagery related to law in New Jersey,” he noticed the seal. Assuming that “if you practice in New Jersey, that means you’re a certified attorney,” he added the seal to respondent’s website.

Respondent testified that he did not direct Asgerally to include the seal, he was unaware of its inclusion, and that had it been brought to his attention, he would not have permitted it. He said that he directed Asgerally to remove the seal immediately on being advised of its presence. He testified that the seal’s presence on his site had been unintentional and inadvertent, he had no intention of holding himself or his associates out as certified under Rule 1:39, he did not include any reference to attorney certification on his business cards or letterhead, and he did not receive any referral fees from attorneys.

The DEC hearing panel concluded that respondent had a duty to monitor his website to ensure that no improper content appeared on it and his failure to do so violated RPC 8.4(c) and Rule 1:39-6(b), warranting a reprimand.

The Disciplinary Review Board conducted a de novo review of that recommendation. It concluded that respondent had improperly displayed the seal on his website, but concluded that the complaint should be dismissed because a violation of RPC 8.4(c) requires intent and there was no clear and convincing evidence that respondent intended to include the seal on his website or knowingly ratified its display.

The Court determined on its own motion to review the DRB’s determination and issued an order to show cause.

Held: In the absence of clear and convincing evidence that respondent intentionally included the New Jersey Supreme Court certified attorney seal on his website or approved its continued presence, there is no basis for finding that his conduct violated RPC 8.4(c) and the complaint against him is dismissed.

The Court says the New Jersey Supreme Court certified attorney seal represents a significant professional achievement by the lawyers who earn it. Rule 1:39 defines the exacting requirements that an attorney must satisfy to earn this designation. An attorney who has met this high standard may make dignified use of the area of practice designation as provided in the regulations of the board.

The Court says discipline has been imposed on the basis of RPC 8.4(c) in various settings in which the record demonstrates intentional misconduct. Absent evidence supporting a finding of intentional misconduct, the Court has declined to impose discipline pursuant to 8.4(c).

Applying those principles, the Court concludes that there is no clear and convincing evidence showing that respondent either intentionally included the seal or approved its continued presence on the website. Accordingly, there is no basis for a finding, under the applicable standard of proof, that his conduct constituted dishonesty, fraud, deceit or misrepresentation and the complaint should be dismissed.

However, the Court reminds the bar that attorneys are responsible for monitoring the content of all communications with the public — including their websites — to ensure that those communications conform with the RPCs. No attorney who has not complied with Rule 1:39 should display the New Jersey Supreme Court certified attorney seal on a website, in other advertising, or in any other form of communication, or otherwise state or imply that he has been certified pursuant to Rule 1:39.

Prospectively, attorneys who are not authorized by Rule 1:39 to use the seal, but who display it on their websites or in other communication will be subject to appropriate discipline. All language and design that appears on a website should be reviewed frequently for compliance with Rule 1:39 and the RPCs.

Chief Justice Rabner and Justices Long , LaVecchia , Hoens and Patterson and Judge Wefing , temporarily assigned, join in this opinion. Justice Albin did not participate.

— By Judith Nallin

For the Office of Attorney Ethics — Walton W. Kingsbery III, Assistant Ethics Counsel. For respondent — Frederick J. Dennehy (Wilentz, Goldman & Spitzer).