A lawyer who allegedly tried to bargain his way out of an ethics grievance by agreeing to forestall a defamation suit against the client is facing discipline.
The Advisory Committee on Professional Ethics has only recently proscribed negotiating a grievance’s withdrawal, and Jeffrey Pocaro claims he was unaware of the stricture.
But the Disciplinary Review Board urged a censure in a March 8 opinion, saying the "totality of respondent’s admissions … supports a finding that he knew that his conduct was improper."
Pocaro, one of a small circle of equine lawyers in New Jersey, represented Bulletproof Enterprises Inc. of New York, the owner of a racehorse stable, in various matters beginning in October 2008, including collection cases.
During that time, Pocaro referred Bulletproof’s principal, Jeffrey Brooks, to a lawyer in Canada in connection with a lawsuit there over a disputed horse boarding fee.
In November 2010, Bulletproof fired Pocaro over a fee dispute in litigation over horse sales.
The next month, Pocaro undertook representation of veterinarian Barrey Danvers — a client for 30 years who also cared for Pocaro’s horses — in a federal declaratory judgment action filed by Bulletproof, which was disputing a $275,000 bill for veterinary services and seeking refunds.
Pocaro called Malcolm Seymour of New York’s Garvey Schubert Barer, Bulletproof’s lawyer in the Danvers matter, asking about a settlement and noting — based on gripes he’d heard from Brooks — that the Canadian litigation had been very costly.
Bulletproof moved to disqualify Pocaro from Danvers and later filed an ethics grievance alleging conflicts based on the conversation. The Danvers case later settled without a ruling on the disqualification motion.
In March 2011, while the ethics grievance was pending, Pocaro filed a complaint in the Monmouth County Special Civil Part against Bulletproof and Brooks on behalf of Colts Neck Equine Associates, which also claimed owed Bulletproof owed money for veterinary services.
Bulletproof moved for Pocaro’s disqualification in that case as well. That case also ultimately settled — Bulletproof agreed to pay half of the alleged outstanding bill of $15,000 — and the motion never was decided.
After that settlement — at the suggestion of the mediator in the Colts Neck matter, Pocaro claims — Pocaro contacted Seymour again and asked if he would contact the District XII Ethics Committee on Bulletproof’s behalf and withdraw the grievance.
Seymour later claimed Pocaro suggested that, in exchange for a withdrawal, he would refrain from filing a defamation action against Bulletproof based on its inclusion of the ethics grievance in the Colts Neck motion for disqualification.
Seymour told Pocaro he took the proposition as threatening and unethical, but agreed to relay the message to Brooks. Brooks said it bordered on blackmail and directed Seymour to report the conversation to the DEC.
Pocaro denied threatening to file suit.
As for the charge that Pocaro exploited his prior relationship with Bulletproof in attempting to settle the Danvers matter, Pocaro contended that his knowledge of the company’s finances came not from Brooks but primarily from Tony Monica, a former Bulletproof trainer who came to co-own horses with Pocaro.
Pocaro also claimed that Brooks, when he fired Pocaro, threatened to kill him, and he wanted to get back at Brooks and make the ethics matter go away.
The DEC found that Pocaro acted unethically in each conversation with Seymour, and recommended a three-year suspension.
The DRB instead urged a censure. It found Pocaro’s proposal violated Rule of Professional Conduct 8.4(d), for conduct prejudicial to the administration of justice, and ACPE Opinion 721, 204 N.J.L.J. 928 (June 27, 2011), which prohibits conditioning settlement on withdrawal of a grievance.
The opinion, which was issued about two months before Pocaro’s second conversation with Seymour, states that attorney discipline "is not a private cause of action or private remedy for misconduct that can be negotiated between an attorney and the aggrieved party," and the disciplinary process "furthers public, not private" interests.
The DRB noted that Pocaro admitted wanting to get back at Brooks and eliminate his ethics matter, and acknowledged that he must "face the music" and had no defense for his conduct.
The DRB cited just two precedents: one in which an admonition was issued; in another, a reprimand. The board increased Pocaro’s discipline to a censure based on his "significant ethics history" and "propensity to violate the Rules of Professional Conduct."
The DRB dismissed a charged violation of RPC 1.9(c)(1), which prohibits using information relating to the representation of a former client to the client’s disadvantage.
Pocaro’s knowledge of the costliness of Bulletproof’s Canadian litigation flowed at least partly from his representation of it, but "the record is devoid of any evidence" that the knowledge disadvantaged Bulletproof.
"In fact, the settlement may have been advantageous to [Bulletproof], in that it avoided the additional expense of litigation and eliminated the possibility of … losing at trial," DRB chairman Louis Pashman wrote.
Of the board’s nine members, six voted for a censure, two for a reprimand, and one did not participate.
The state Supreme Court will determine final discipline.
Pocaro says he won’t challenge the recommendation. "I’m very satisfied with what the [DRB] did with their decision," he says. "I asked them to be reasonable and fair, and they were."
Presenter Elizabeth Weiler, of Weiler & Brandman in Cranford, declines comment.
Pocaro, a Fanwood solo, admitted in 1982, has been disciplined twice before. In 1995, he was suspended for one year for criminal conduct in lying about a racehorse on which a bank lien had been placed in order to obtain a loan for a client. He entered a deferred-prosecution program and underwent treatment for compulsive gambling to resolve the criminal charge.
In 2006, Pocaro was censured for gross neglect, lack of diligence and other shortcomings in connection with a client’s civil rights case.