Lawyer's Alleged 'Bedside Manner' Is Ground for Ethics Probe, Not Lawsuit

Charles Toutant
New Jersey Law Journal
May 10, 2007

When Miguel Herrera was badly hurt in a 2002 car crash, he didn't have to look far for legal representation. Cherry Hill, N.J., lawyer Jeffrey Hark appeared one day in his hospital room. Herrera says that in pain and under heavy medication, he signed a contingency fee agreement.

It wasn't until much later, Herrera says, that he learned of Hark's conflict of interest: The other driver in the crash was Vernon Roth, Hark's wife's grandfather.

Herrera says Hark told him he could not recover more than Roth's $100,000 automobile insurance policy, even though Hark knew Roth had substantial assets.

And, Herrera says, Hark arranged a lawyer for him in a municipal court case arising from the crash while arranging for another lawyer to represent Roth. Both were tenants of Hark's law building.

While those facts make out a prima facie case of deviation from acceptable professional standards, a Camden County, N.J., judge properly dismissed Herrera's legal malpractice case on summary judgment, an appeals court ruled on Tuesday.

Herrera can't recover damages for malpractice because the lawyer who replaced Hark in the negligence case settled it for an acceptable amount. "Herrera has not shown how he would have obtained a better result than the $95,000 settlement, even if Hark had disclosed his conflict of interest. In short, no showing of damages has been made," wrote Judges Ariel Rodriguez and Thomas Lyons in Herrera v. Hark, A-1862-05.

Nevertheless, the panel referred the case to the Office of Attorney Ethics for an investigation of Hark's conduct.

The panel cited Rule of Professional Conduct 7.3(b)(1), which forbids initiation of contact with prospective clients whose physical, emotional or mental state is such that the person could not exercise reasonable judgment, and In re Pajerowski, 156 N.J. 5 (1998), which found RPC 7.3(b)(1) violated where a runner was sent to a victim's hospital room shortly after an accident.

Hark, contacted after Tuesday's ruling, disputed many of the facts Herrera alleged. He did not visit the hospital room unannounced but was contacted by a friend of Herrera about representation, and Herrera signed the fee agreement in Hark's office, not the hospital, Hark says. He also says he had no involvement in retaining lawyers to represent Herrera or Roth in municipal court.

Hark says Herrera sued him for malpractice to get leverage in a fee arbitration between Herrera and the law firm that settled the case, Perskie, Wallach, Fendt & Holtz of Atlantic City, N.J. Herrera also sued the Perskie firm, which was dismissed as a defendant.

Hark says Herrera reported him to the OAE and that an investigation has been pending for three years.

Herrera's lawyer, Sebastian Ionno II of Clifford Van Syoc's office in Cherry Hill, did not return a call.

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