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In re M.

New Jersey Supreme Court

Decided: October 12, 1971.


For Submission to Examination within 30 days -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed -- None.

Per Curiam

[59 NJ Page 305] A complaint was filed with the Essex County Ethics Committee by a residuary legatee against the respondent, an attorney-at-law of this State, alleging that he improperly performed his fiduciary duties as executor of the estate, that he paid excessive fees to himself for legal services allegedly rendered and that he failed to properly and promptly account or properly make distribution of the moneys coming into his hands as executor. The gross amount of the estate was approximately $8,300, the bulk of which consisted of U.S. Series "E" Bonds. After a hearing at which the respondent appeared pro se, the Committee unanimously found that the respondent unduly procrastinated in the administration of the estate and that he violated Canon 11 of the Canons of Professional Ethics of the American Bar Association in that he failed to properly and promptly account for trust property in his possession as a fiduciary. The Committee further found that respondent paid commissions

[59 NJ Page 306]

and counsel fees to himself totaling $1,225 before filing an account, either formal or informal, and before making an account to the residuary legatee. Finally, the committee found that respondent's contention that he performed substantial legal services was without merit. In addition, the Committee reported that it was considerably disturbed by respondent's incredible explanation for his conduct and his irrelevant accusations against certain public officials. The Committee was unable to determine "whether such utterances by the respondent were due to the pressure of his admittedly strained financial condition * * * or his physical condition," and therefore it suggested that he undergo an examination as to his physical and mental condition. R. 1:20-4(g).

Upon the filing of the presentment this Court issued an order to respondent to show cause why he should not submit to a physical and mental examination pursuant to R. 1:20-4(g).*fn1 On the return day of the order the respondent

[59 NJ Page 307]

appeared pro se and repeated the allegations he made before the Committee. Further, he indicated that the proceedings before this Court were unfair. This Court granted a continuance to permit the respondent to file an affidavit supporting allegations relating to the fairness of the proceedings. The affidavit was filed and he appeared before us again on September 14, 1971. After oral argument respondent filed a written memorandum.

After consideration of respondent's statements before the Ethics Committee, his allegations in his affidavit and memorandum, and his demeanor before this Court on two occasions, we are satisfied that the Committee's recommendation that he submit to a physical and mental examination is warranted.

It is ordered that the respondent undergo a physical and mental examination by an impartial medical expert whose specialty is psychiatry within 30 days from today. The expert may be selected by the respondent from the panel which the Administrative Director of the Courts maintains pursuant to R. 4:20-2 (Impartial Medical Experts). In the event he fails to make a selection, the Court will appoint Dr. Ralph Brancale, Medical Director of the State Diagnostic Center, Menlo Park, to make the examination. During the examination he is entitled to have his own physician present. Cf. State v. Whitlow, 45 N.J. 3, 26 (1965). Upon the coming in of the expert's report further proceedings will be held pursuant to R. 1:20-11(b).*fn2

[59 NJ Page 308]

If the respondent does not submit to the examination within 30 days, he will be suspended from the practice of law until such time as he does submit. All further proceedings on the formal complaint will be held in abeyance pending the outcome of the hearing.

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