SUSSEX COUNTY, NJ – In 2014, attorney, Byram Township Councilman and Sussex County Freeholder candidate David E. Gray appeared before Hudson County Superior Court Judge Kimberly Espinales-Maloney as plaintiffs to recover fees for representing a crime victim in a sexual assault case.
This crime victim, a female from Woodland Park, had been a dispatcher in East Newark, plus a volunteer firefighter who said she repeatedly endured sexual assaults from a police sergeant at that department.
In July 2014, the victim was awarded $101,000 that East Newark settled to pay her. The borough also agreed to pay her attorney fees.
In walked Gray and his partner Paul S. Foreman, who stood before Judge Espinales-Maloney requesting $1.2 million for their work. The lawyers are managing members of the firm Foreman & Gray Attorneys at Law, which is the practice under the business Foreman & Gray LLC.
According to a NJ.com article, Gray’s partner told the judge that he and Gray spent 1990.5 hours on the case, with $395 per hour as their rate.
It is unknown why Gray and Foreman would seek over 10 times the amount in fees as their client, a crime victim, received in compensation. Unlike their victim, neither Gray nor Foreman suffered from a crime that Foreman said in court the victim will “never recover from.” Yet this pair alleged they worked day and night on this case, including Foreman at his own kitchen table after hours.
The claimed 1990.5 hours that Gray and Foreman submitted to the court should have totaled to $786,247.50, more than $413,752.50 less than Gray and Foreman also sought from the court.
But, Foreman also tacked on fees to the tune of $36,563.90, plus $393,123.75 in contingency enhancement billing.
A contingency enhancement can be awarded in New Jersey in rare circumstances when an attorney would likely not be compensated following a contingency case that received a handsome settlement for damages.
Contingency enhancements can climb to 50 percent and greater of the original fees sought, and under the contingency fee enhancement law, counsel can receive up to 100 percent of their billed hours in enhancement fees.
However, one major problem is that Gray and Foreman overbilled for hours, basing their bloated contingency enhancement fee on an already padded bill. According to the attorney that represented East Newark in the suit that Gray and Foreman filed against the municipality as plaintiffs, Robyn McGrath stated that Foreman doubly billed for one deposition, for example and overbilled for research and investigation. Judge Espinales-Maloney ruled that only 200 of Gray’s and Foreman’s billing hours were legitimate, with the pair unnecessarily overbilling by over 1,790.5 hours for the East Newark case, including the review of one transcript that they billed nearly 20 hours to review and abstract, plus 140 hours for a 15 page brief in opposition to the summary judgment that East Newark sought.
In the end, the judge awarded the two $79,000 plus the recompense for their fees in the amount of $14,480.15 – a drop of more than half the original fees they sought reimbursement for – with the attorneys reaping $93,480.15, or $46,740.08 each.
That totals to about $40,000 per lawyer after their fees were paid.
The award to Gray and Foreman was $7,519.85 less than what their client, a crime victim received, and over 90 percent of what she actually received with the fees included. Excluding their fees, the pair garnered 75 percent of what their victim received.
Typical contingency fees in New Jersey for the first $500,000 award are 33 1/3 percent.
However, in addition to the contingency enhancement that they sought from East Newark, Gray and Foreman also requested a 40 percent contingency or 1.5 percent times their attorney fees from their client.
The victim signed an agreement that stated, “If the law firm recovers money for you in excess of the costs and expenses…you will pay the law firm a legal fee. The fee will be based on a percentage of the net recovery. The firm will prosecute your case on a contingency fee basis. The firm will recover forty percent (40%) of any net settlement or verdict, or 1 1/2 times our attorney fees, whichever is greater.”
In other words, Gray and Foreman sought not just a percentage from the victim from her settlement monies as a contingency fee, they sought an enhancement fee at 50 percent from the Borough of East Newark. The judge denied their request for the enhancement.
On Gray’s page of his business website he crows about his own representation of crime victims, including claiming a quote from a book was written about his empathy for victims, noting the author stated his “compassion for victims is extraordinary and you are a rarity among lawyers.” This quote is further highlighted at the top of his page in which he also said this victim referred to him as a “White Knight.”
David Gray, the “White Knight” should then understand the ethics involved when working with a crime victim, which requires an even gentler touch to a person who has been traumatized. For that matter, he should understand ethics, period. Regarding his work for crime victims, while a student at Seton Hall Law School, David Gray, according to this 2009 article also written by the author of this story when she interviewed both Gray and Foreman that year for a story, Gray claimed to the writer he had invested over 3,500 hours in a volunteer program through the law school during an eight-year period.
This would be impossible since Gray’s own LinkedIn profile counters what he told the author during that interview, and states that he attended Rutgers University for his undergraduate work from 1996 to 2000 in organizational management, and then Seton Hall Law School from 2000 through 2003, which is a period of seven years only between the two institutions, with only three years in law school.
Gray’s educational claims are not the only details that David Eugene Gray has fudged.
A complaint that has been filed against his firm now finds Gray and Foreman posturing as defendants, again with questions about their billing practices after their former office manager, Juliette Bresnahan refused to engage in fraudulent billing practices that she said Gray was orchestrating. Gray confessed to Bresnahan that he “wanted to go outside and vomit” from the receipt of a $62,000 tax bill, and afterward, she said he began padding matrimonial client pre-bills in hopes of covering payroll. Following that conversation, Bresnahan indicated that she questioned Gray after she noticed two bills with their hours doubled. Rather than commending his employee for catching the billing error, the court complaint, which is here, states that Gray ordered Bresnahan to falsify the billing.
“Just do it!” she said Gray barked at her.
As Gray and Foreman had done in East Newark, they padded bills within their own offices, and as he did in East Newark with the borough represented by its insurance carrier, the firm has additionally committed insurance fraud with one of the clients that Bresnahan picked up on. One of the padded bills was a client represented by Hyatt Legal Plans.
Additionally, Gray engaged in harassing Bresnahan, causing her emotional distress, and after she challenged him on his fraudulent practices, Gray terminated her. Following her termination, Gray attempted to bully Bresnahan into signing a release, which she refused and then texted her that he would contest the single mother of three’s unemployment benefits.
Gray also made false statements about Bresnahan’s termination to the New Jersey Department of Labor and Workforce Development (NJDOL), according to the complaint against him.
Bresnahan is now suing Gray for an excess of $300,000, plus damages and attorney fees.
The author of this story emailed Gray at his Byram Township Council email address, giving him over a 24-hour response time, asking for his reply by 8 p.m. on Monday, May 23, regarding ethics questions involving the East Newark case specifically.
“Why would you and Mr. Foreman pursue fees that far exceed your client’s settled reward by over 10 times, who was a crime victim?” was the first question.
The second question that InsideScene.com asked Gray was, “How will you protect the citizens of Sussex County, who are already grappling with financial burdens over issues including the failed solar project, if you have sought to benefit greater than the person who you represented if you sought billing that was so extraneous and overly zealous?”
Gray’s response arrived the Wednesday following the requested deadline.
I am just seeing this email now, so I apologize for the late response. However, I hope this is sufficient:
- We represented a victim who was forced to perform oral sex to keep her job. Once she stopped, she was fired. I had a team of attorneys work on the case for 3.5 years. During that time, the victim got married and had a family. She moved on and did not want to be re-victimized by a trial. Therefore, she settled the case on the eve of trial. Had we won the trial, the damages would have been many millions. Our attorney’s fees were about one million and that’s what we asked to be repaid by the defendants. That is the law and that is allowable. The judge reduced it to the amount of the settlement. We could have appealed, and probably should have, but chose not to because we wanted no more publicity for our client.
- The billing on that case was not extraneous and overzealous. In fact, there were expert reports submitted by other attorneys in the field attesting to same. The citizens of Sussex County are paying a large fee to a law firm to “determine if there is a lawsuit” over solar. That is an initial consultation fee. I would never agree to that. Also, if there is a lawsuit, which would cost more money, any damages (money won) would go to the Morris County Municipal Utilities Authority – not Sussex County. I would rather you ask how the “investigation” is going to possibly help the citizens of Sussex County. The answer is – this is not an investigation and it is not going to help Sussex County.
In response to Gray’s replies, the author of this story notes and/or asks the following:
An article from the The Observer Online noted that Gray and Foreman, unlike Gray’s statement to the author above, initially asked for no less than $1 million for their client during settlement negotiations, which was then reduced to $500,000, and then “the plaintiff’s lawyers accepted an ‘offer of judgment’ for $101,000 in July.” The attorneys were actively participating in settlement negotiations for their client. The actual opinion from the Judge reflects the same of the attorneys, noting, “The parties attempted to engage in settlement negotiations. However, Plaintiff’s counsel indicated that they would not accept less than $1 million to settle the case. After Summary Judgment, Plaintiff’s counsel indicated that they would not negotiate at any level below $500,000. Ultimately, on June 27, 2014, Plaintiff accepted an Offer of Judgment in the amount of $101,000.” In other words, the team of Gray and Foreman were in the drivers’ seats, not their client. And the “team” of attorneys was Gray and Foreman.
Why would Gray and Foreman accept such a low offer for their client, especially when other cases where sexual abuse has occurred have received higher settlements, such as this case in Paterson where the Paterson Diocese paid an adult victim into the six figures for her pain and suffering over 40 years after she was harmed as a teen? The author of this story believes Gray and Foreman ill served their client in order to turn a profit for their firm, as they have since shown a pattern of padding their bills and other unethical billing practices based on what has surfaced in the case of Juliette Bresnahan, and her accusations against Gray.
And importantly, as attorneys purporting to be for crime victims, why would their client not be given the opportunity for a fair trial, considering she is protected under the Crime Victims’ Bill of Rights (click to read), in which she is entitled shielding from harm under the Bill of Rights? They had already proceeded that far through negotiations. A trial would have allowed her the opportunity for closure with a victim impact statement, informing the defendant of the harm he directly caused to her.
Billing: Gray counters it was not extraneous and overzealous. The billing hour rate itself was deemed customary, as cited in the judge’s opinion, but Gray only admits to half of the tale in his above response. In her opinion, the judge noted that “a review of counsel’s time entries reveals unreasonable charges for attorney time.” That included billing 19.8 hours to review and abstract a transcript, that took two hours and 47 minutes in reality, billing 9.1 hours for a deposition that was 2.5 hours of time, and 5.2 hours for another 2.5 hour deposition. There were many instances with the billing on this case that the judge cited as “unreasonable.” Plus, of the six original counts in the complaint against the Borough of East Newark, only one with the sexual hostile work environment remained, and the rest were dismissed prior to the Summary Judgment.
Gray would rather the author ask how the investigation would help Sussex County? That was not the author’s question first off (last time the author checked an interviewee does not direct an interviewer to ask what questions they would like to be asked), and secondly, what is happening in Sussex County is an investigation. Matthew Boxer, who is leading it, was in charge of audits at the highest level in the State of New Jersey as New Jersey’s State Comptroller. Additionally, with the firm Lowenstein Sandler, Boxer, according to Wikipedia, Boxer serves his firm’s “corporate investigations and integrity practice.” Boxer’s other experience is security fraud litigation. He was formerly employed as a federal prosecutor between 2001 and 2006. His professional background well qualifies Boxer to lead an investigation.
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