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In re Barry

Decided: July 28, 1982.

IN THE MATTER OF THOMAS J. BARRY, AN ATTORNEY-AT-LAW


On an Order to Show Case why respondent should not be disbarred or otherwise disciplined.

For suspension -- Chief Justice Wilentz and Justices Pashman, Schreiber, Handler, Pollock and O'Hern. Dissenting -- Justice Clifford. Clifford, J., dissenting.

Per Curiam

These disciplinary proceedings commenced with the filing of a complaint with the District IV Ethics Committee (local committee) by the law firm with which respondent, Thomas Barry, was associated. The firm charged Barry with a series of what can be described only as extraordinary and bizarre ethical transgressions that occurred between the latter part of 1974 and June 1979. One of the unusual aspects of the matter is that respondent not only admitted, in his answering pleading, the nineteen separate instances of misconduct set forth in the complaint, but in the interests of full disclosure acquainted the local committee with two additional transactions that he believed might involve ethical violations.

Respondent's defense was that he did not intentionally violate the Disciplinary Rules "because, as subsequent psychiatric evaluations confirmed, [his] actions were the result of psychic conflicts rather than a reflection of [his] intent to defraud either [his] partners or [his] clients." When the misconduct came to light in June 1979, Barry voluntarily withdrew from the practice of law and promptly obtained psychiatric aid. About nine months thereafter he resumed practice as an associate in another

lawyer's office and continued in therapy until August 1980, when he was discharged from further regular treatment. He continues to practice in the association he formed in April 1980.

After a hearing the local committee filed a presentment charging respondent with violations of numerous ethical rules. The DRB conducted its own hearing, on the completion of which it recommended a private reprimand. We have made an independent review of all the evidence and have concluded that a suspension is warranted.

I

After a period of clerkship while he was attending law school, respondent became employed with a Woodbury law office in August 1974. He had taken the bar examination but was not sworn in as an attorney until December 1974. Even before being admitted respondent was given responsibility for some files, and ultimately the number of cases he was charged with handling reached about 200.

One of the first matters entrusted to respondent -- and one of the first with which he had difficulty -- was given to him by a principal in the firm about three or four weeks before his admission date. It involved a claim of A.C.M. Realty Co., Inc. for about $18,000 in real estate commissions. Between 1974 and 1979 Barry told the client's principal of numerous trial listings and ongoing negotiations, and twice had the client travel to the courthouse. In truth no suit had been started and there had never been any negotiations.

Respondent's fabrications in the A.C.M. matter did not come to light until June 1979. The circumstances of that revelation are perhaps best appreciated by reference to the testimony of one of the law firm's principals before the local committee:

One day * * * [the client] came storming in the office and demanded to see me and indicated to me that he had been sitting at court several times. On one occasion is called back from a vacation that he had been on because the case was listed for trial and he didn't understand why it was listed so many times and why it took so long. At this point I think it ...


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