Henry Gottlieb
New Jersey Law Journal
March 11, 2010

After practicing law for 57 years, Martin Burger learned something new. You can be reprimanded by the Supreme Court for paying paralegals a percentage of fees on cases they bring in. He also learned the punishment could have been worse.

In an order made public on March 5, the justices adopted the Disciplinary Review Board’s finding that Burger, a Paramus, N.J., solo, capitalized on paralegal Lita Biederman’s contacts in the Filipino community to generate immigration cases. Burger paid her half the fees he collected in her cases, plus $200 per week for general secretarial duties. Those included filling out forms and sometimes acting as interpreter for Tagalog-speaking Filipino clients. Between 2000 and 2006, Burger paid $230,000 to an entity Biederman controlled, Darius Group.
Burger violated Rule of Professional Conduct 5.4(a), the prohibition against sharing fees with nonlawyer employees, and RPC 7.3(d), the stricture against giving something of value to a person to obtain a client, the DRB found in Matter of Martin Burger, 09-243.

It’s a crime in New Jersey for lawyers to use runners. And lawyers have receieved hefty suspensions for using runners. But as the board said in its opinion, “The question is sometimes a tricky one because, while a runner may be compensated in the form of a fee share, not all who receive fee shares are runners.” Biederman wasn’t a runner, the board suggested, because she was an employee of the office and did work on the cases. And her average compensation averaged about $28,750 per year, which seemed roughly in line with what a paralegal and secretary might earn anyway.

Burger told the disciplinarians he didn’t know he was violating rules — a claim undercut by the fact that he paid through a third-party entity, the board said. Still, his unblemished record and his acknowledgement that he did wrong were mitigating factors.

Anthony Fusco Jr., a personal injury lawyer in a similar case, In Re Fusco, 197 N.J. 428 (2009), received a three-month suspension for a more pervasive per-case compensation plan for employees. Fusco had a previous disciplinary infraction in his record and, unlike Burger, did not acknowledge wrongdoing, the DRB said.
Burger’s lawyer, Aaron Albert of Fischer Porter Thomas & Reinfeld in Englewood Cliffs, says the court adopted the DRB’s recommendation of a reprimand even though the Office of Attorney Ethics recommended a censure, a slightly tougher form of punishment.

If a reprimand means, “we’re outing you as a rule breaker, don’t do it again,” a censure means, “we’re outing you as a rule breaker, don’t do it again, or else.” Lawyers with censures in their record are more likely than those given reprimands to get a suspension for the next infraction. That’s not likely to apply to Burger, who was born in 1924, according to Martindale-Hubbell. That would make him 85 or 86, but he’s not commenting on anything, he says.

Left out of the DRB opinion is the story of how Burger got caught. And the missing details suggest there was a lot more going on than the DRB described, and a lot more to Biederman’s activities. Burger’s ethics prosecution was the outgrowth of a criminal case. In 2008, a state grand jury indicted Biederman’s husband David on charges that he used his position as a worker for the state Division of Consumer Affairs to refer a case to Burger through his wife, and the case had nothing to do with immigrants from Asia. In 2005, David Biederman took a call in his state office from a man with a beef against a home-improvement contractor. Biederman referred the man to his wife, and she arranged to have the man become a client of Burger’s firm, the indictment said.

Lita Biederman worked on that case too. And when Burger went into semi-retirement in 2006, she took the case to Abad, Costancio & Mallongo in Jersey City, where she also worked on a contract basis, the indictment said. The two Biedermans allegedly worked on the case together at that firm, and were compensated. Abad, Costancio, with an office in the Empire State Building in Manhattan, no longer has a New Jersey branch, and all three lawyers in its current Martindale-Hubbell listing are admitted in New York only. Partner Leopoldo Abad did not return a call on Tuesday. OAE Director Charles Centinaro did not return a call so it could not be determined whether the ethics investigation went beyond Burger.

In 2008, David Biederman pleaded guilty to a law that forbids government employees from engaging in a government transaction with a business in which he or a family member has an interest. A judge sentenced him to three years’ probation and 100 hours of community service.

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