In the Matter of Helmer (D-17-17)

In the Matter of Helmer (D-17-17) 

RPC 3.4(g) provides that “a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” The Complaint asserted multiple grounds for the charged violation including Helmer’s entering into a retainer arrangement in which his fee was partly contingent upon payment of restitution; his meeting with Branco, Walters, Matlock, and NFI’s general counsel to press for a criminal prosecution after a declination; Helmer’s participation in drafting the indictment; his testimony before the grand jury; and his influencing Branco and Walters to seek high bail, have the indictment sealed, and arrest Land and Pessiki during a civil mediation session. 

RPC 8.4(a) provides that “it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct.” RPC 8.4(d) states that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” The Complaint asserted that Helmer’s “actions to collect money utilizing the criminal process on behalf of NFI . . . would have impacted the administration of justice in the criminal, civil and bankruptcy cases.” 

    Victims can pursue restitution in both the civil and criminal arenas. One challenge practitioners face is to refrain from presenting or threatening “to present criminal charges to obtain an improper advantage in a civil matter.” RPC 3.4(g). Heightened care is needed to navigate potential pitfalls in that area. In this case, though, the core issue is not whether private counsel could pursue restitution through the criminal process but rather the manner in which he sought to do so. Helmer’s conduct here pushed the envelope. Although he actively encouraged a criminal prosecution and advocated for restitution for his client, to place primary responsibility on Helmer for what occurred overlooks the role and decision-making authority of the prosecution team. 

The burden of proof in disciplinary matters is clear and convincing evidence. R. 2:15- 15(a). In addition, when a violation of RPC 8.4(d) is the sole basis for discipline, a particularly high level of proof is required. The proceedings in this matter did not follow best practices and were troubling in a number of respects. Nonetheless, the Court did not find clear and convincing evidence that Helmer’s conduct violated RPC 8.4(d).