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In re Miller

New Jersey Supreme Court


Decided: January 22, 1962.

IN THE MATTER OF ISADORE B. MILLER, AN ATTORNEY-AT-LAW OF NEW JERSEY

On order to show cause why respondent should not be disciplined.

For dismissal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None.

Per Curiam

[36 NJ Page 453]

The Ethics Committee, one member dissenting, found that respondent misrepresented the amount of a settlement with intent to defraud his corporate client.

Respondent was retained to press a claim against a corporate debtor and an individual guarantor. The corporation filed a petition under chapter XI of the Bankruptcy

[36 NJ Page 454]

Act. Under an arrangement there approved, creditors were to receive 15%. The guarantor settled for 50%. The correspondence among respondent, his forwarding attorney and the client could be read to mean that the total to be received was 50% rather than 65%. Remittance in fact was made on the lower basis. Later, during an inquiry before a federal grand jury, an Assistant United States Attorney called attention to the discrepancy. Thereupon, respondent transmitted to his client the balance due, making payment from his trust account, in which the remaining funds had been throughout.

It seems to us that the critical factual question is whether the client knew at the time of the settlement that 65% was to be received, for if the client did, respondent's explanation in terms of mistake in remittance would be wholly credible. An officer of the client testified he knew the settlement was in that amount, but had not noticed the discrepancy in the remittance; that he was satisfied respondent's failure to remit the correct amount was due to mistake; and that since these events, the company has sent other matters to respondent. That witness's testimony seems believable. Being of that view, we think respondent's explanation should be accepted. It follows the charge was not established.

The rule is accordingly dismissed.

19620122


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