In re Hyderally
In re Hyderally
Opinion of the Court
This ethics proceeding requires the Court to determine whether respondent, Ty Hyderally, violated Rule of Professional Conduct (RPC) 8.4(e), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation,” by virtue of his display of the seal of the New Jersey Board on Attorney Certification on his law firm website, notwithstanding the fact That respondent is not a Certified Attorney. An attorney may incorporate the seal of the New
I.
Respondent was admitted to the New Jersey Bar in 1994. He has a prior disciplinary history. In 1999, he was reprimanded for violating RPC 8.4(d) (conduct prejudicial to the administration of justice). In re Hyderally, 162 N.J. 95, 741 A.2d 79 (1999). He maintains a practice in Montclair, with several attorneys and a paralegal, previously known as “Law Offices of Ty Hyderally, P.C.,” and now known as “Hyderally & Associates, P.C.”
In 2005, respondent asked his cousin, Yusuf Asgerally, who is a California website designer and is not an attorney, to create a website for his law practice. Mr. Asgerally added the New Jersey Attorney Certification seal to respondent’s website. The seal, including the language “New Jersey Supreme Court Certified Attorney,” appeared on sixteen pages of respondent’s website, including the pages containing biographical information about respondent, his associates and his staff, none of whom has been certified in accordance with Rule 1:39. On each page, the seal was placed under a heading entitled “Memberships/Affiliations.” The “New Jersey Supreme Court Certified Attorney” seal remained on respondent’s website for more than two years. Respondent testified that during this period, he knew he had a website, but “never
In 2007, the Supreme Court Committee on Attorney Advertising (CAA) received a grievance about respondent’s display of the seal. The Committee referred the issue to the Office of Attorney Ethics (OAE) on February 8, 2008. On February 9, 2010, the OAE filed a Complaint charging respondent, with violating RPC 8.4(c), which provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, ¡fraud, deceit or misrepresentation.” The OAE declined to charge respondent with violating RPC 7.1 or 7.2, which define the ¡parameters of acceptable attorney representations about services, and of attorney advertising.
The District Y-C Ethics Committee (DEC) conducted a hearing on July 1, 2010, and August 30, 2(jl0. Mr. Asgerally testified that when he designed the website in 2005, he had no familiarity with legal terminology. He stated that in reviewing websites of New Jersey attorneys to find “imagery ¡[related] to law in New Jersey,” he noticed the “seal talking about the New Jersey Supreme Court Certified Attorney.” Assuming ithat “if you practice in New Jersey, that means you’re a certified attorney and with the Supreme Court there,” Mr. Asgerally added the seal to respondent’s website. ;
Respondent testified that he did not direct Mr. Asgerally to include the “New Jersey Supreme Court Certified Attorney” seal on the website. He stated that he was unaware of the seal’s presence on the website, and that; had Mr. Asgerall/s decision to include the seal been brought to liis attention, he would not have permitted it. He stated that upon being notified of the grievance, he directed Mr. Asgerally “to immediately take down the emblem that was on the site.” Respondent testified that the seal’s presence on his website had been unintentional and inadvertent, that he had no intention of holding himself or his associates out as certified pursuant to Rule 1:39, and that he did not include any reference to attorney certification on his business cards or letter
The DEC hearing panel concluded that respondent had a duty to monitor his website to ensure that no improper content appeared on that website. It determined that his failure to do so violated RPC 8.4(c) and Rule l:39-6(b), warranting a reprimand. In accordance with Rule 1:20-15(0, the Disciplinary Review Board (DRB) conducted a de novo review of the DEC panel’s recommendation. Before the DRB, the OAE recommended that respondent be given either a reprimand or a censure, that the CAA monitor respondent’s firm advertising for a period of time, and that respondent be barred for five years from applying for Certified Attorney status.
In a decision dated July 12, 2011, the DRB concurred with the DEC that respondent had improperly displayed the “New Jersey Supreme Court Certified Attorney” seal on his website, but concluded that the complaint should be dismissed. The DRB cited (1) respondent’s immediate removal of the seal from his website after the CAA directed him to do so; (2) the fact that respondent had not derived any benefit from his display of the seal; and (3) the “inadvertent” nature of respondent’s inclusion of the seal on his website. Noting that “[a] violation of RPC 8.4(c) requires intent,” the DRB concluded that because “there is no clear and convincing evidence that respondent intended to include the emblem on his website or knowingly ratified its display,” no violation of RPC 8.4(c) had been shown.
II.
The Court determined on its own motion to review the DRB’s determination pursuant to Rule l:20-16(b), and issued an Order to Show Cause. The OAE challenged the first rationale of the DRB’s decision, respondent’s immediate removal of the seal from
Respondent argued that the Court should uphold the DRB’s dismissal of the complaint, citing “the lack of any evidence or convincing argument to the contrary by the OAE, the logic of experience in support of respondent’s position, and the judgment of the disciplinary body that heard his testimony and observed the demeanor of all the witnesses.” Respondent contended that if the Court ruled that a violation of RPC 8.4(c) could be premised on inadvertent or negligent use of symbols on a website, it should do so only prospectively.
mi
The “New Jersey Supreme Court Certified Attorney” seal at the center of this proceeding 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 of the State of New Jersey may be certified as a civil trial attorney, a criminal trial attorney, a matrimonial law attorney, a workers’ compensation law attorney, or a municipal court trial attorney, or in more than one designated area of practice, but only on establishing eligibility and satisfying requirements regard*459 ing education, experience, knowledge, and skill for each designated area of practice as set forth below.
[B. 1:39.]
Rule 1:39-1 and Rule U39-1A authorize the appointment of a Board on Attorney Certification and a Certification Committee for each of the specialty areas of practice for which certification is allowed, and empower the Board and Committees to set standards for certification for those practice areas.
In addition to meeting eligibility requirements, a candidate for certification must demonstrate “extensive and substantial experience” in the designated practice area, as defined in the Board on Attorney Certification’s regulations. R. l:39-2(b). He or she must establish “professional fitness and competence in the designated area of practice” by presenting peer references, supplemented by the Board’s or Committee’s investigation of the candidate’s qualifications and reputation. R. l:39-2(c). The candidate must demonstrate “satisfactory and substantial educational involvement within the three years immediately preceding his or her application.” R. l:39-2(d). Upon completion of the requirements of Rule 1:39-2, the candidate must pass a written examination in the relevant field. R. 1:39-3. If, “upon due consideration,” the Board deems an attorney is qualified for a specialty certification, it reports its decision to this Court, which then directs “the making of an appropriate entry on the roll of attorneys,” and issues “an appropriate document attesting thereto.” R. 1:39-5. Certification is effective for five years from the date of entry upon the roll of attorneys, R. 1:39—5(b), and may be terminated upon a finding by the Board that the “attorney no longer demonstrates continuing competence or has engaged in conduct or omissions ... that are not acceptable on the part of a certified attorney.” R. l:39-8(a).
An attorney who has met this high standard of competence in a given specialty to the satisfaction of the Board on Attorney Certification is afforded unique recognition. He or she “may make dignified use of the area of practice designation as provided in the Regulations of the Board,” R. 1:39—6(b), but is barred from using that designation in any manner unauthorized by the Board,
Because respondent was not charged with a violation of RPC 7.1 (communications concerning a lawyer’s service) or RPC 7.2 (attorney advertising), the issue of whether respondent’s undisputed two-year display of the “New Jersey Supreme Court Certified Attorney” seal violates those rules is not before the Court.
Discipline has been imposed on the basis of RPC 8.4(c) in various settings in which the récord demonstrates intentional misconduct. See, e.g., In re Prothro, 208 N.J. 340, 27 A.3d 1210 (2011) (attorney violated RPC 8.4(c) by knowingly making a false statement to a disciplinary authority); In re Trustan, 202 N.J. 4, 993 A.2d 1211 (2010) (attorney violated RPC 8.4(c) by knowingly making false statements to a third party and offered evidence he knew was false); In re Stahl, 198 N.J. 507, 969 A.2d 1067 (2009)
Applying those principles to the case before us, we conclude that there is no clear and convincing evidence demonstrating that respondent either intentionally included the New Jersey Supreme Court Certified Attorney seal, or approved its continued presence, on the website created for him by Mr. Asgerally. Accordingly, there is no basis for a finding, under the applicable standard of proof, that respondent’s conduct constituted “dishonesty, fraud, deceit or misrepresentation.” RPC 8.4(c). We agree with the DRB’s unanimous determination that the complaint against respondent should be dismissed.
Notwithstanding our decision on the record of this case, we remind 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 at all times with the Rules of Professional Conduct. No attorney who has not complied with the requirements of Rule 1:39 should
An order shall be entered consistent with this opinion.
For dismissal—Chief Justice RABNER, and Justices LONG, LaVECCHIA, HOENS, PATTERSON and WEFING—6.
Not Participating—Justice ALBIN.
ORDER
It is ORDERED that the formal ethics complaint in District Docket No. XIV-2009-0329E filed against TY HYDERALLY of MONTCLAIR, who was admitted ¡to the bar of this State in 1994, is hereby dismissed for lack of clear and convincing evidence of unethical conduct. Í
The OAE cites cases in which attorneys were disciplined pursuant to RPC 7.1 because of misleading advertisements. See In re Power, 171 N.J. 470, 795 A.2d 849 (2002); In re Sharp, 157 N.J. 27, 722 A.2d 930 (1999).
Reference
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- IN THE MATTER OF TY HYDERALLY, AN ATTORNEY AT LAW
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- Published