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In an undated report issued in June 2023, an attorney ethics hearing panel recommended that a lawyer who is presently serving as a municipal attorney for two municipalities in Ocean and Monmouth counties be “admonished,” the least severe level of discipline, for an ethics violation arising out of legal work done for a private client.

The case is District IIIB Ethics Committee v. Starkey, Docket No. IIIB-2021-0005E, which was filed on April 7, 2022, against Kevin N. Starkey of the Toms River law firm of Starkey Kelly Kenneally Cunningham Turnbach & Yannone. Starkey presently serves as municipal attorney for both Tinton Falls Borough (Monmouth County) and Brick Township (Ocean County). Both the ethics complaint and Starkey’s answer can be downloaded here.

The ethics matter relates to Starkey’s representation of William Gaillard, who owned property in Long Beach Township (Ocean County) that faced Barnegat Bay. In 2018, Gaillard’s neighbors, Joel and Lee Hirtle, who did not have bayfront property, filed a quiet title lawsuit claiming ownership of a narrow strip of vacant land connecting their property to Barnegat Bay. The Hirtles were represented by attorney Richard M. King, Jr’s law firm.

After months of legal proceedings, the parties reached a settlement in August 2019. Judge Francis R. Hodgson directed them to prepare and file an amended deed reflecting the agreed-upon property boundaries. However, in November or December 2019, Gaillard informed Starkey that he found the settlement unacceptable.

In response, Starkey “ceased all work on the matter,” neglecting to keep Gaillard informed or file any necessary paperwork, according to the ethics complaint. Unbeknownst to Gaillard, on February 28, 2020, the Hirtles filed a motion to compel Gaillard to honor the settlement and sign the amended deed. They argued that despite six months passing since Judge Hodgson’s order, the amended deed had not been filed. The Hirtles’ law firm claimed they had sent the amended deed to Starkey on December 12, 2019, and followed up twice in January 2020, but received no response.

The ethics complaint alleges that Starkey failed to inform Gaillard of the Hirtles’ motion and neglected to file a response. On April 9, 2020, Judge Hodgson ordered Gaillard and the other defendants to sign the amended deed by April 30, 2020. However, the judge denied the Hirtles’ request for attorney fees.

Despite the deadline passing, Starkey still did not inform Gaillard of the court order or respond to the Hirtles’ lawyer. On May 18, 2020, the Hirtles’ lawyer sent an email to Starkey, requesting compliance with the court order. Once again, Starkey failed to respond or forward the email to Gaillard, as detailed in the ethics complaint.

Subsequently, on June 23, 2020, the Hirtles filed a second motion, leading to Judge Hodgson’s July 10, 2020 order. The order allowed the Hirtles’ lawyer to sign the amended deed on Gaillard’s behalf and mandated that the defendants reimburse the Hirtles $1,877.20 in attorney fees for enforcing the settlement. Starkey did not respond or inform Gaillard about this development.

According to attorney Jonathan J. Russell’s November 24, 2020 certification, Gaillard contacted him in September 2020 due to Starkey’s failure to return his calls and emails for nearly a year. In response to Russell’s attempts to contact Starkey, Starkey informed him on November 16, 2020, that the Hirtles had filed a third motion seeking to force the sale of Gaillard’s bayfront property to satisfy the $1,877.20 in attorney fees. With Russell’s assistance, the Hirtles withdrew their motion after Gaillard paid them $3,041.15, which included an additional amount of $1,163.95.

In Starkey’s response to the ethics complaint, he admitted to the factual allegations but claims that his representation of Gaillard was diligent until Gaillard resisted the settlement’s terms and he encountered difficulties with the Hirtles’ attorney, Richard M. King, Jr. According to Starkey, King refused to grant him an extension of time to oppose the Hirtles’ lawsuit, leading to a frustrating experience. Starkey recounts instances of King allegedly lacking courtesy and being unpleasant during the proceedings. However, Starkey acknowledges that he should have put aside his frustration and directly addressed the issues in the case.

The ethics complaint consisted of five counts: Lack of Communication, Lack of Competence, Lack of Diligence, Failure to Protect Client’s Interests, and Failure to Expedite Litigation. Starkey did not contest the first count but disputed counts 2-5, believing that he achieved the desired outcome in Gaillard’s best interest concerning the underlying claim. Starkey expressed regret that Gaillard had to pay $3,041.15 and offered to reimburse him for that loss.

In its recommendation, the hearing panel found that these “significant mitigating factors” weighed in Starkey’s favor: no prior disciplinary record during his more than thirty-year career as an attorney, that he was forthcoming throughout the ethics process, that he expressed genuine remorse and acknowledged the mistakes he made to his client. The panel also noted that Starkey had “provided several unopposed letters of reference in support of his claim that the instant matter was an outlier in any otherwise lengthy, unblemished career” and that he did, in fact, reimburse Gaillard the $3,041.15 paid in attorney fees.

The panel recommended that Starkey be found to have violated Rules of Professional Conduct 1.1(a), 1.3, and 1.4, which relate to competence, diligence, and client communication. The panel recommended that the counts alleging that Starkey failed to protect his client’s interests and to expedite litigation be dismissed. The matter is now before the New Jersey Supreme Court’s Disciplinary Review Board for further proceedings.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]