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In re Winberry

January 30, 1986

IN THE MATTER OF JOHN J. WINBERRY, AN ATTORNEY AT LAW

ORDER

The Disciplinary Review Board having filed a report with the Supreme Court recommending that JOHN J. WINBERRY, of

RUTHERFORD, who was admitted to the Bar of this State in 1933, be suspended from the practice of law for two years, and good cause appearing;

It is ORDERED that the findings of the Disciplinary Review Board are hereby adopted and respondent is suspended from the practice of law for a period of two years, effective February 15, 1986, and until further order of the Court; and it is further

Ordered that the Decision and Recommendation of the Disciplinary Review Board, together with this order and the full record of the matter, be added as a permanent part of the file of said JOHN J. WINBERRY as an attorney at law of the State of New Jersey; and it is further

Ordered that JOHN J. WINBERRY be and hereby is restrained and enjoined from practicing law during the period of his suspension; and it is further

Ordered that respondent comply with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with suspended, disbarred or resigned attorneys; and it is further

Ordered that JOHN J. WINBERRY reimburse the Ethics Financial Committee for appropriate administrative costs.

Decision and Recommendation of the Disciplinary Review Board

This matter is before the Board based upon two presentments filed by the District II-B (Bergen County) Ethics Committee. The facts are as follows:

1. JOHN J. WILLIAMS, JR.

Respondent represented John J. Williams, Jr., who qualified on November 9, 1972 as executor of the estate of his late sister, Annette W. Frank. She left a son as sole heir. Respondent did not comply with a September 9, 1974 court order requiring the executor to file an accounting within 60 days. Respondent

maintained he was trying to reach a settlement with the heir concerning an allegation that the deceased Mrs. Frank, who with her brother, Mr. Williams, had been co-executors of the estate of their late father, had misappropriated funds of the father's estate thus depriving Mr. Williams of his rightful share. Respondent and Mr. Williams felt that all of the assets in the Frank estate were in fact assets held in trust under her father's estate. Although an Order to Show Cause was issued in January 1975 to compel Mr. Williams to explain why he should not provide an accounting, neither the executor nor residents of his household would accept service. Respondent maintained that Mr. Williams was in the hospital at that time and could not be served. The hearing on the order to show cause was continued a number of times because of Respondent's alleged incapacity due to an automobile accident on May 17, 1975.

On February 27, 1975, the trial court issued an order requiring an accounting be filed within 45 days or Mr. Williams would be committed to the county jail. Respondent's motion to the Appellate Division for leave to appeal was denied on May 5, 1975. When another order to show cause was issued on April 23, 1975, Respondent, on May 8, 1975, filed a motion for a stay and leave to appeal with the Appellate Division without mentioning that an earlier motion had been denied. The Appellate Division on June 18, 1975, denied Respondent's second application for leave to appeal. On July 8, 1975, Respondent served a third motion for a stay and leave to appeal upon the county surrogate. Ultimately, an order was entered by the trial court on July 25, 1975, directing that Mr. Williams be confined in the county jail until he complied with the September 9, 1974 order to file an accounting.

On August 18, 1975, the accounting was filed. A court hearing on the accounting was scheduled for October 10, 1975. On the day before, Respondent telephoned the judge's chambers and was advised that he personally had to be present at ...


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