On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Schreiber, Handler, Pollock and Garibaldi. Dissenting -- Justice O'Hern. O'Hern, J., dissenting.
[94 NJ Page 51] This disciplinary proceeding arose as a result of a presentment that was filed by the District XI Ethics Committee against respondent, a member of the bar, based upon respondent's conviction for larceny of property valued at over $500.00 and conspiracy to commit larceny. After hearing on the presentment,
the Disciplinary Review Board (Board) accepted the Committee's findings that the respondent had violated DR 1-102(A)(3) and (4). The majority of the Board recommended that respondent be suspended from the practice of law for eighteen months, retroactive to January 26, 1982, the effective date of his temporary suspension.
We disagree and adopt instead the minority's recommendation that respondent be suspended from the practice of law for three years retroactive to January 26, 1982.
The Board accurately sets forth the relevant facts in its Recommendation, viz:
"The respondent's conviction resulted from the unauthorized use by respondent and his wife of funds which belonged to two adult sisters, Mary Ellen and Kathleen Leonardis. The sisters were placed in the respondent's home during 1972 by a social worker from the Division of Mental Retardation (hereinafter Division). Both Kathleen and Mary Ellen had been institutionalized for most of their lives, and worked as domestics in a nursing home operated by Roman Catholic Nuns for four years prior to being placed with the Infinitos. During that time, each of the sisters had accumulated several thousand dollars in a savings bank near the housing home. The sisters were to act as live in domestic help in the Infinito home, and, in return, the respondent was required to pay Kathleen and Mary Ellen on a weekly basis. The respondent understood that $10.00 each was the appropriate amount. No contract or written understanding was made, and after the first several weeks, only semi-annual inspections were made by the Division.
"At hearing before the District XI Ethics Committee, the respondent advised that he initially paid the sisters by check, but they complained because of the inconvenience of going to the bank to cash the checks. Thereafter he gave them cash. After several months he paid them periodically as they needed the
money so that they would not spend the money all at once and regret not having any money for the remainder of the week. Respondent contended that his actual expenditure for each of the sisters was probably in excess of $20.00 per week, but he maintained no records to substantiate these payments.
"In December of 1974, after nearly two years with the Infinitos, Kathy and Mary Ellen were taken to their savings bank to close out their accounts and open new accounts closer to their new residence. Two checks were issued by the savings bank, one to Mary Ellen for $4,000.00 and one to Kathleen for $5,000.00. The balance of $260.35 was withdrawn in cash. On December 19, 1974, the following day, the checks were presented to the Morris County Savings Bank. Two accounts were opened. The $4,000.00 check was deposited directly into one account opened in the name of Kathleen and Mary Ellen Leonardis. The second account was opened in the name of Marie Infinito, respondent's wife. Four thousand dollars from the five thousand dollar check were deposited into that account. Prior to acceptance of that deposit by the bank, both Mrs. Infinito and respondent were required by the bank to endorse the check in question. The remaining $1,000.00 was received in cash and used by the sisters to purchase a color television set, as well as for clothing and Christmas gifts. Respondent testified before the Committee that he was not aware of the specific usage of the account opened in Marie Infinito's name although he understood that withdrawals were made from time to time.
"In the Spring of 1976, respondent was first contacted by two social workers from the Division. Respondent's wife had advised these Division employees that he had kept detailed records of disbursements to and expenditures on behalf of the Leonardis sisters, although he had not. When respondent was unable to produce complete records, the Division representatives suspected misappropriation of funds. Thereafter, at the Division's insistence, respondent entered into an agreement with the Division to pay Kathleen $20.00 per week and to repay salary arrearages of $5,700.00 and savings account deficiencies of $3,598.15 as
calculated by the Division, for a total of $9,298.15. Since Mary Ellen was then terminally ill, and died on March 15, 1977, the monthly payments of $129.14 were payable only to Kathleen. The respondent advised the Committee that he felt unfairly pressured to enter the agreement, which he contended was improperly calculated. As a result, he ...