On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For remandment -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
This disciplinary proceeding arises from a presentment filed by the District V-C Ethics Committee recommending that respondent be suspended from the practice of law, and from a motion for final discipline, based on a criminal conviction, filed by the Office of Attorney Ethics (OAE). The ethics committee recommendation is based on a violation of DR 9-102 (RPC 1.4(a), 1.15). In connection with the ethics committee proceedings, respondent entered into a consent order on September 21, 1981, temporarily suspending him from the practice of law. The motion for final discipline is based on a guilty plea, entered by respondent on September 26, 1984, to an indictment for possession of cocaine.
The Disciplinary Review Board (DRB or Board), by a unanimous vote, concluded that
respondent's four and one half year temporary suspension is sufficient discipline for his record keeping infractions. However, respondent's acknowledged abuse of illegal drugs, coupled with strong indications of other self-destructive compulsive behavior, mandate the conclusion that respondent continue under indefinite suspension until such time as he can demonstrate his fitness to again practice law.
The charges involving a failure to keep accurate records arise out of a complaint filed with the ethics committee by Ms. Linda Wilferth on June 15, 1981. Ms. Wilferth had retained Mr. Orlando to represent her in a civil suit involving an automobile accident that occurred on June 18, 1980. The suit was settled for $9800, of which $3,231.66 was to be paid respondent as his fee. On January 15, 1981, Ms. Wilferth signed the settlement papers, approved the fee arrangement, and apparently signed
an authorization permitting respondent to endorse her signature on the settlement draft and then deduct his costs and fees and forward the balance to her.
Over the next three and one half months, Ms. Wilferth made several attempts to collect the settlement money owed to her. On May 7, 1981, after repeated calls to respondent's office proved fruitless, she retained another attorney who wrote to the respondent threatening legal action or an ethics complaint if he did not forward a check and an explanation within ten days. Respondent forwarded a check to Ms. Wilferth on May 11, 1981. He informed Ms. Wilferth's attorney that there had been a "mix-up" in his office and apologized for the delay. Ms. Wilferth demanded proof of the "mix-up," and when she did not receive it, she threatened to file an ethics complaint unless respondent forfeited his fee. Respondent refused to forfeit his fee, but offered to pay interest if the delay was his fault. Ms. Wilferth rejected his proposal, and filed a complaint with the ethics committee on June 15, 1981.
A staff auditor for the Division of Ethics and Professional Services visited respondent's office on August 6, 1981. The results of that audit were set forth in the DRB's Decision and Recommendation:
Respondent had no trust records, ledgers, receipts or journals. He did produce bank statements for February through June 1981. The bank statements following February 2, 1981 indicated an amount in the account less than $9,800 which should have been there as a result of the settlement. In fact, on occasion the daily closing balances were in negative amounts.
In a review of the March 1981 bank statement, the auditor concluded that the balance of funds for a real estate settlement were insufficient for a mortgage payoff of $28,541.05. A deposit of $62,904.35 was made on March 12, 1981 in the trust account for the Miyagishima from Horowitz Real Estate closing. The auditor concluded that ...