On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Opposed -- none.
We concur with the recommendation of the Disciplinary Review Board (DRB) in this matter that the respondent John W. Noonan's temporary suspension from the practice of law for a period of more than four years is sufficient discipline. We add the following in order to clarify the treatment of the misappropriation issue involved in this case.
In addition to the complaints against respondent initiated by numerous complainants, the Division of Ethics and Professional Services (DEPS), the predecessor of the Office of Attorney Ethics, filed a complaint that charged misappropriation (in
addition to the often related charge of failure to maintain financial books and records in accordance with Rule 1:21-6(c)). In connection with the misappropriation charges, the District Ethics Committee found numerous disciplinary violations but, in the words of the DRB, "found no evidence that respondent intentionally tried to defraud his clients or misappropriate funds." After noting that finding, the DRB quoted from a portion of the District Ethics Committee determination in which that Committee referred to the many problems respondent faced at the time of the alleged misappropriations, e.g., alcoholism, extremely heavy workload, the quoted portion also noting that while these pressures seriously affected respondent's ability to practice law, he now appears to have "gotten his life together." The DRB's direct treatment of the misappropriation issue consists of a statement that it "agrees with the District Ethics Committee that there is no evidence presented indicating that respondent intentionally defrauded his clients." The DRB, thereafter, without indicating whether its comments were addressed to the misappropriation charges or to the other charges (basically gross negligence and failure to carry out contracts of employment, DR 6-101(A)(1) and DR 7-101(A)(2)), noted respondent's problems, that the purpose of discipline is not to punish the offender, the relevancy of mitigating factors in determining whether disbarment is appropriate, and finally concluded that "the record does not support a conclusion that respondent's misconduct was based on dishonesty, venality, or immorality. Respondent's misconduct does not lead to a conclusion that his 'good character and fitness have been permanently or so irretrievably lost' . . . as to warrant disbarment." Finally, after pointing to respondent's prior good record and reputation and contrition, the DRB notes that there was apparently full reimbursement.
The DRB's statements about the District Ethics Committee's findings concerning misappropriation, as well as its own findings on that subject, left some doubt as to exactly what factual findings had been made. The misappropriation that will
trigger automatic disbarment under In re Wilson, 81 N.J. 451 (1979), disbarment that is "almost invariable," id. at 453, consists simply of a lawyer taking a client's money entrusted to him, knowing that it is the client's money and knowing that the client has not authorized the taking. It makes no difference whether the money is used for a good purpose or a bad purpose, for the benefit of the lawyer or for the benefit of others, or whether the lawyer intended to return the money when he took it, or whether in fact he ultimately did reimburse the client; nor does it matter that the pressures on the lawyer to take the money were great or minimal. The essence of Wilson is that the relative moral quality of the act, measured by these many circumstances that may surround both it and the attorney's state of mind, is irrelevant: it is the mere act of taking your client's money knowing that you have no authority to do so that requires disbarment. To the extent that the language of the DRB or the District Ethics Committee suggests that some kind of intent to defraud or something else is required, that is not so. To the extent that it suggests that these varied circumstances might be sufficiently mitigating to warrant a sanction less than disbarment where knowing misappropriation is involved, that is not so either. The presence of "good character and fitness," the absence of "dishonesty, venality, or immorality" -- all are irrelevant. While this Court indicated that disbarment for knowing misappropriation shall be "almost invariable," the fact is that since Wilson, it has been invariable.*fn1
Because of this ambiguity, we questioned counsel for the OAE who prosecuted the case before us closely on this issue, especially since the OAE took the position that respondent should be disbarred. That questioning revealed that the OAE's position was not that knowing misappropriation had been established,
but rather that respondent's negligence in handling money was sufficiently gross to warrant disbarment even if he did not know it was client's money. That is not the rule of Wilson. Counsel for the OAE not only interpreted the findings of the District Ethics Committee and the DRB as the equivalent of a finding that there was not any knowing misappropriation, thereby reinforcing our similar understanding of the finding, but also conceded that the record could not support a finding of knowing misappropriation. It is our concurrence with that understanding that leads to our acceptance of the DRB's recommendation rather than the imposition of disbarment.
What follows is the decision and recommendation of the DRB.
This matter is before the Board based upon a presentment and a report recommending a private reprimand filed by the District V (Essex County) Ethics Committee. The matters were consolidated for hearing before the Board.
The facts underlying these complaints are as follows:
Respondent was retained to represent at trial Charles M. Bonnar who was charged with murder. Mr. Bonnar was convicted on May 18, 1977 of second degree murder and sentenced to 18 to 22 years imprisonment. Respondent was paid $3,800 by Mr. Bonnar's parents to file an appeal. Although Respondent filed a notice of appeal, he never filed a supporting brief. The appeal was ultimately dismissed by the Appellate Division on May 15, 1978 for lack of prosecution. Mrs. Bonnar first learned of the dismissal when she contacted the Clerk's Office. When she confronted Respondent, he assured her a mistake had been made and he had not been notified that briefs had to be filed by a certain date. Later Respondent told the Bonnars that he would file a motion for reduction of sentence, but failed to do so.
When this matter was heard by District Ethics Committee, Respondent maintained he was having personal problems at that time and was not able to perfect the appeal. He did not feel either an appeal or a motion to reduce sentence would have been successful and he could not have filed this motion while the appeal was pending. He said that when the appeal was dismissed he was too embarrassed to file the motion to reduce sentence. The District Ethics Committee found Respondent violated DR 6-101(A)(1) by neglecting a legal ...