Stiff discipline is being recommended for a New Jersey municipal public defender who talked some of his indigent clients into paying for his services as private counsel.
Douglas Del Tufo "converted the assigned representation to one of a private attorney — and not because the clients had so requested, but because he, dishonestly, had either suggested or persuaded the clients to do so," the state Supreme Court's Disciplinary Review Board said in an opinion on Monday.
To boot, Del Tufo — Roxbury Township's public defender for five-and-a-half years — kept the town's presiding judge in the dark about his arrangements, the DRB said, unanimously urging the court to order a three-month suspension.
In 2011, Del Tufo was appointed to represent Brittany Stone, who was charged with driving while intoxicated and other offenses and paid the $200 public defender fee to the court.
Del Tufo later collected $350 from Stone, filed a letter of representation on her behalf as a private attorney and demanded $400 more to appear at a proceeding.
Stone — suspicious that she was "being scammed" — alerted the court administrator and Roxbury Municipal Judge Carl Wronko, who questioned Stone and Del Tufo in court. Del Tufo could not explain his competing roles as private and court-appointed counsel, according to the DRB.
Del Tufo resigned as public defender in June 2011 during the pendency of Stone's case and returned her $300 payment.
In a second case, Del Tufo was assigned to represent Erick Peralta, who faced charges similar to Stone's. Peralta, too, was granted indigent status and paid a $200 court fee.
Del Tufo executed a retainer agreement with Peralta and collected a total of $1,900, including $400 for an expert report that Del Tufo suggested could help Peralta's case.
When the case was called for trial months later, it was still listed as a public defender matter. Only then, in court, did Del Tufo inform Wronko that he was acting as a private attorney.
Wronko adjourned the trial and gave Del Tufo one week to provide a letter of representation, as well as a written explanation of his arrangement with Peralta, which he failed to do.
Del Tufo also neglected to refund the $1,900, though Peralta requested it, or to provide an itemized bill documenting the legal services provided.
Wronko alerted the Office of Attorney Ethics, and ended up recusing from both cases and transferring them to another court.
Del Tufo admitted to numerous ethics violations in a stipulation with the OAE, which urged a three-month suspension.
The DRB agreed, finding violations of Rules of Professional Conduct 8.4(c), conduct involving dishonesty, fraud, deceit or misrepresentation; 8.4(d), conduct prejudicial to the administration of justice; 1.5(a), unreasonable fee; and 1.5(b), failure to put a fee in writing.
Del Tufo's conduct "wasted judicial resources," DRB Chairwoman Bonnie Frost noted. "Not only was the court's time taken up by having to address the ramifications of his misconduct, but, resolution of the clients' matters was no doubt delayed."
Del Tufo's conduct apparently is rare, as the DRB cited just one precedent: In re Muckelroy, 118 N.J. 451 (1990). There, a public defender was reprimanded for twice asking an indigent client to sign a promissory note for $1,500 and later referring the supposed debt to a collection agency.
Del Tufo's conduct, however, "was more serious than Muckelroy's" because he was successful in collecting the fees and, unlike Muckelroy, was an experienced defense attorney and public defender, Frost said.
Del Tufo's disciplinary history showed a "tendency to disregard the rules of the profession," Frost said.
He was admonished for failure to communicate in a matrimonial matter and failure to cooperate with ethics investigators, and reprimanded for mixing business and personal funds in his trust account and using them to pay expenses.
He also was temporarily suspended twice for failing to comply with a fee arbitration committee's order — "further evidence of respondent's penchant for disregarding his legal obligations," Frost said.
Deputy Ethics Counsel HoeChin Kim, who prosecuted the matter, says she has never encountered a case involving such conduct as Del Tufo's.
Del Tufo was admitted in 1997.
A listed phone number for his law office was disconnected. A number for his home was not listed.