On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
This matter arises from a report of the Disciplinary Review Board (DRB) recommending disbarment of respondent. The recommendation is based upon its finding of multiple instances of misconduct involving neglect of clients' matters, misrepresentation of the status of matters, and, most significantly, two instances of misappropriation of clients' funds. Based upon our independent review of the record, we are clearly convinced that respondent engaged in the described conduct and that the ethical infractions warrant the discipline recommended.
Respondent was admitted to the bar in 1976. He opened an office for the practice of law as a sole practitioner. He practiced without incident until 1979, when the first of these incidents involving neglect arose. The problem matters continued into 1980 and were concluded in August 1981, when respondent closed his office. Various complaints were filed against him, including certain matters that were resolved without a finding of disciplinary infraction. He was suspended on September 28, 1982, for failure to answer the complaints. Respondent made no answer to any of the disciplinary complaints until January 11, 1983, when he appeared at a hearing conducted by the District III Ethics Committee (Ocean/Burlington). At that time, he substantially conceded the matters set forth in the
complaints and attributed his failings to very serious drinking problems.
The DRB made detailed findings with respect to the several incidents as to which it sustained the District Ethics Committee's (DEC) presentment of unethical conduct. Those findings may be summarized as follows: three clients gave retainers to respondent to represent them in matrimonial matters. Despite receipt of the retainers, respondent failed to file the requested complaints or to prosecute the parties' claims. He misrepresented the status of the file to one client. Another client retained him to handle various tax and commercial matters, to collect rents, and to prepare and file an income tax return. Respondent failed to file the tax return, to respond to inquiries about the matters, and to turn over $174 in rent receipts. In another instance, respondent was found to have aided a non-lawyer in the practice of law by reviewing bankruptcy petitions that the non-lawyer was preparing for filing. The non-lawyer signed respondent's name to the petitions without his consent.
The matter of gravest consequence to us and the ethics panels is a matter in which respondent was given a power-of-attorney, by clients who were in the military service, to collect the proceeds of a second mortgage. The clients had to leave the state before the matter could be resolved. Respondent collected almost $1,400 due on the mortgage but never responded to the clients' inquiries about the status of the matter and never turned the proceeds over to the clients. When the clients learned from the mortgagor that she had paid the mortgage balance to respondent, this complaint ensued.
It is plain that respondent exhibited a pattern of neglect in his handling of legal matters generally, in violation of DR 6-101(A)(2); that he failed to carry out his clients' contracts of employment, in violation of DR 7-101(A)(2); and that he misrepresented the status of various matters to his clients, in violation of DR 1-102(A)(4). Standing alone, these incidents would probably not warrant disbarment since they occurred during a
relatively brief period of respondent's career and were influenced, at least in part, by respondent's dependence upon alcohol during the period. Cf. In re Stern, 92 N.J. 611 (1983) (brief period of transgression occasioned by youthfulness, lack of supervision); In re Barry, 90 N.J. 286 (1982) (psychological problems); In re Getchius, 88 N.J. 269 (1982) (psychological problems). Nor was it a case of an attorney failing to respond to an earlier disciplinary warning and a continued pattern of neglect. See In re Katz, 90 N.J. 272, 284 (1982). However, we remain gravely troubled by the misappropriation of clients' funds. Respondent acknowledges that he collected about $1400 on behalf of the clients and that these funds were converted to his own use. This evidence clearly established that respondent unlawfully appropriated clients' funds. Although the amounts involved do not evidence a course of magnitude, there is no suggestion in the proofs that it was an unintentional misuse of clients' funds through neglect, In re Hennessy, 93 N.J. 358 (1983), or through misunderstanding, In re Hollendonner, 102 N.J. 21 (1985).
Respondent, in a quite appealing sense of candor, admitted to the District Ethics Committee that, with certain exceptions not relevant to our disposition, the allegations are essentially true. When asked if there was anything he would like to say by way of mitigation, he told the committee that he had "very serious drinking problems" and "that I didn't have enough sense to seek help when I should have * * *. I thought I was succeeding. But it did not succeed. It got progressively worse." His final comments were:
MR. HEIN: I would like to add for what it is worth, I am sorry for the other members of the Bar. I cast a bad look on lawyers for doing ...