## Facts

- Richard J. Simon, a New Jersey criminal-defense attorney, represented Angel Jimenez on murder and related charges under a written retainer signed by Jimenez, his mother, and his brother Julio Sierra.
- The retainer provided a $325 hourly rate, initial payments totaling $10,000, and allowed Simon to end the representation if payment obligations were not met.
- Simon represented Jimenez for roughly March 2005 through August 2008 while Jimenez remained detained and the criminal case proceeded through indictment and a superseding indictment.
- Over time, the client and family accrued more than $66,000 in unpaid fees; Simon warned that he would seek to withdraw and would sue if the arrearage persisted.
- Simon moved to withdraw in the criminal case for nonpayment and breach of the retainer; the trial court denied the motion and set the matter for trial.
- While still counsel of record in the criminal matter, Simon filed a separate civil action against Jimenez (and related parties) to collect unpaid fees.
- After learning of the civil suit, the criminal court permitted Simon to withdraw and referred the matter to attorney disciplinary authorities.

## Issues

1. Whether filing a fee-collection civil suit against a current client while still representing that client in pending litigation creates a concurrent conflict of interest under RPC 1.7(a)(2).
2. What disciplinary sanction is appropriate for an attorney who sues a current client for fees during an ongoing representation.

## Decision

- The Supreme Court of New Jersey held that Simon violated RPC 1.7(a)(2) by suing a current client for unpaid fees while continuing the representation in the client’s pending criminal case.
- The Court found the conduct created a significant risk that Simon’s representation would be materially limited by his personal financial interest in fee collection.
- The Court imposed a public reprimand, rejecting a recommended suspension in light of mitigating circumstances.
- The Court announced a clear prospective warning that attorney-initiated suits against current clients during ongoing representations, used as a means to withdraw, “shall not be tolerated.”

## Legal Principles

- A lawyer has a concurrent conflict of interest under RPC 1.7(a)(2) when there is a significant risk the representation will be materially limited by the lawyer’s personal interests, including fee-collection interests.
- Suing a current client for unpaid fees while remaining counsel of record in the same client’s pending litigation is incompatible with the duty of loyalty and conflict-free representation.
- Although attorneys may pursue unpaid fees, fee litigation must not be pursued in a manner that injects divided loyalties into an ongoing representation; acceptable alternatives include seeking timely court-approved withdrawal or pursuing collection after the representation ends.
- Disciplinary sanction may consider mitigating factors, including the absence of proven prejudice to the client’s substantive rights, while still treating the conflict-creating conduct as a serious ethical violation.

## Conclusion

The court disciplined an attorney for filing a fee-collection lawsuit against a current client while continuing to represent the client in active criminal litigation, holding that the attorney’s personal interest in collecting fees created a concurrent conflict under RPC 1.7(a)(2) and warranting a reprimand accompanied by a strong warning against future similar conduct.


In re Simon, 20 A.3d 421 (N.J. 2011)