For disbarment -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
This disciplinary proceeding was presented initially before the District XII Ethics Committee. An investigation of the respondent had been initiated on the basis of the complaint of an attorney who represented a banking institution that held a mortgage on premises that were the subject of a sale. The mortgage was to have been satisfied from the sale proceeds. When the mortgage thereafter went into default, inquiries revealed that the mortgage had not been satisfied and that the failure to apply the proceeds was the fault of the respondent who represented the purchasers. Respondent arranged for the discharge of the mortgage shortly after receiving the pointed inquiries from the mortgagee bank's attorney. The incident was related to the Central Ethics Unit of the Administrative Office of the Courts. The ensuing investigation into this matter by the District Ethics Committee resulted initially in a dismissal of the complaint. An appeal by the Division of Ethics and Professional Services to the Disciplinary Review Board resulted in a remand for a further investigation, which included an examination of respondent's trust account records. This inquiry unraveled a skein of continuing misappropriations of clients' funds by respondent. In the meantime respondent consented to a temporary suspension from the practice of law.
At the hearing on the asserted ethics violations, the record consisted of three documents introduced into evidence with the
consent of the respondent and his attorney. These consisted of a "disciplinary stipulation," a "disciplinary action-consent order," and a letter report from the firm of certified public accountants that conducted the audit of respondent's records. The stipulations established that during 1981 and 1982 respondent failed to make appropriate disbursements of clients' trust funds resulting in misappropriations totalling approximately $30,000. It was also stipulated that respondent, who was admitted to the bar in 1975 and practiced law as a sole practitioner from 1979 to September 16, 1982, did not maintain his trust and business accounts in compliance with the requirements of R. 1:21-6(b)(1) and (2). The stipulation further noted that respondent had made full and complete restitution to all clients.
Respondent did not dispute any of these facts. However, he reserved the right to present relevant and material evidence in mitigation of the disciplinary rule infractions designated by the stipulation.
Respondent's position, as summarized in the presentment of the District Ethics Committee, is that he suffered from thyrotoxicosis in 1981 and 1982 and that this condition, together with his continuing disappointment over his and his wife's inability to have children, caused certain aberrational conduct on his part that manifested itself in hyperactivity, depression, irrationality, intoxication, extra-marital sexual gratification, and irresponsibility both in his personal and professional pursuits.
The only medical evidence in support of respondent's position was a letter from his physician. The hearing panel noted from the letter that the physician is a general practitioner and apparently is not a licensed psychiatrist or analyst. The panel accepted his report "with that reservation, and with the further reservation that we do not know if he is Board certified in a psychogenic discipline." He treated respondent as a family physician for ten years. This letter related that respondent was being treated for thyrotoxicosis ("described as a state of intoxication due to excessive or abnormal activity of the thyroid
gland") since April 1981. The letter further related that respondent had also received treatment for that condition from another doctor from Plainfield. The treatment of respondent's regular physician had been basically psychotherapy sessions that started out at two to three sessions per week and were occurring approximately once every 3 to 4 weeks at the time of the hearing.
The District Ethics Committee summarized respondent's testimony as follows:
Respondent testified that his thyroid condition was in remission and that at the present time he feels fine physically and better emotionally. He testified further that he feels as though he is starting his life over. His relationship with his wife, which at one point in 1981 resulted in a separation from her for approximately one month, is now on the mend. The "dual life style" which respondent indicated he had been living seems to have disappeared, and he is back to his former personality.
The Committee also considered the corroborative testimony of his wife who attributed the changes in respondent's behavior during 1981 and 1982 as ...