In re Simon

Attorney Richard Simon (defendant) represented Angel Jimenez in a criminal case. Simon entered into a retainer agreement with Jimenez that gave Simon a $10,000 retainer, set Simon’s hourly rate at $325, and provided that Simon could end his representation if Jimenez did not pay the fees. Simon represented Jimenez for almost three years, and Jimenez owed Simon over $66,000 in fees. Simon repeatedly informed Jimenez that he was going to seek permission to withdraw as counsel and planned to sue for payment of the fees. Simon filed a motion in the criminal case to withdraw as counsel based on Jimenez’s breach of the retainer agreement and non-payment of fees. The judge denied the motion and set a trial date. Simon appealed the judge’s denial, but then filed a civil lawsuit against Jimenez for the fees. The judge learned of the civil lawsuit and amended his prior order, relieving Simon as Jimenez’s counsel. The judge also referred the matter to the state’s Disciplinary Review Board (Board), which held a hearing before a panel. The panel concluded that Simon had violated New Jersey’s Rule of Professional Conduct (RPC) 1.7(a)(2) by creating a conflict so great that the judge had no choice but to relieve Simon as counsel. The panel also found that suing an existing client violated ethical rules and would not be tolerated, and recommended a six-month suspension. The Board upheld the panel’s findings, but recommended a reprimand rather than a suspension. The state supreme court granted Simon’s petition for review.