The New Jersey Supreme Court has censured a defense lawyer for failing to obtain a videotape that could have led to a client’s acquittal on a charge of drunken driving.
It could have been worse for the attorney, Stuart Felsen of Cedar Knolls, had the Disciplinary Review Board been able to prove that he lied to ethics investigators when he said he was told that there was no video of the traffic stop.
The court on Nov. 5 adopted the findings of the DRB and censured Felsen, for whom this is not his first brush with discipline.
The DRB found he violated Rules of Professional Conduct 1.1(a), gross neglect, 1.3, lack of diligence, and 1.4(c), failure to communicate. The DRB said it could not determine, based on the record, whether he breached RPC 4.1(a), which prohibits making a false statement of material fact or law.
In February 2010, Felsen was retained by Cinderella Eboh to defend her against drunken driving charges in Parsippany. In his initial discovery demand, he demanded any videotape of the arrest but was told by the municipal prosecutor that none existed, according to his testimony to the District XA Ethics Committee.
The prosecutor, however, told the DEC that he told Felsen in October 2010 that there was, in fact, a videotape of the arrest and that the judge told Felsen to obtain it, since it contained exculpatory evidence. Felsen never did.
In her ethics grievance, Eboh said Felsen did not meet with her, discuss discovery, prepare a defense and or explain the case to her. She said that even though she claimed innocence, Felsen told her to plead guilty, that there was no videotape and no defense to the DWI charge.
Eboh then retained another lawyer who did obtain the videotape and the DWI conviction was later vacated.
The DRB, in its Oct. 1 decision, said there was clear evidence that Felsen failed his client and added that he effectively admitted liability by not answering the ethics charges. “Respondent’s failure to ascertain the existence of the video and defend his client against the DWI charge amounted to gross neglect and lack of diligence,” the DRB said.
The DRB said it would make some sense that Felsen would have told Eboh that there was no videotape if he did not know there was one. “There was no reason to lie to the client about it,” the DBR said. “It is impossible to know who in this regard — respondent or the prosecutor — is more credible on the issue of respondent’s knowledge.”
Because of that, the DRB said it could not conclude that Felsen made a false statement.
Ordinarily, a case like this would warrant an admonition, but Felsen has a prior ethics history that the DRB said warranted a more severe sanction.
In April 2002, the DRB found that Felsen’s full-page ads in the 2000 Passaic and Paterson telephone books for a consortium of solo practitioners he called the Law Advisory Group were unethical because they did not include the full names of the lawyers.
He also violated ethics rules by falsely implying that the other lawyers were partners and had certain expertise and bar memberships. The ads also failed to include an office address.
He was suspended for three months in 2007 following his conviction and 90-day jail sentence for third-degree charges of attempting to obtain a prescription drug, Percoset, and forgery.
“His prior brushes with disciplinary authorities should have served as a warning that any future misconduct would be looked upon harshly,” the DRB said. “There is the additional element of the default, for which greater discipline is required. In a default matter, the appropriate discipline for the found ethics violation is enhanced to reflect the attorney’s failure to cooperate with disciplinary authorities as an aggravating factor.”
A telephone number in Cedar Knolls for Felsen was not working, and he could not be reached for comment.
The case is In the Matter of Felsen, D-15-12.