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.
[105 NJ Page 90] Once again we must address the difficult problem of evaluating the mitigating effect of alcoholism on an admitted misappropriation of a client's funds. The matter arises from a report of the Disciplinary Review Board (DRB) recommending indefinite suspension of respondent for the misappropriations until he can demonstrate recovery from his alcoholism and, in addition, that he make reasonable restitution of the losses. The recommendation is based upon its finding that there was a causal connection between the misappropriation and respondent's alcoholism in that respondent's judgment was severely impaired by alcoholism, which condition impaired his moral reasoning to such an extent that he "was incapable of knowing or realizing that he engaged in illegal or unethical conduct." In reaching its conclusion in this matter, the Board had the benefit of a report of the Alcohol Advisory Committee (AAC), which met with respondent, his attorney and his counselor-therapist prior to the DRB's disposition. The AAC found that respondent was an active alcoholic during the period involved, that alcoholism was a factor in his conduct, and that he is now a recovering alcoholic. Reasoning that In re Wilson, 81 N.J. 451 (1979), was premised upon misappropriations that were accomplished knowingly and were aggravated by the totality of fraudulent conduct, the DRB concluded that alcoholism of the type presented here constituted the "rare" case that would not require disbarment under Wilson, supra, 81 N.J. at 461.
We respect the views of the DRB and AAC and have ourselves struggled to resolve the dilemma of recognizing alcoholism as the disease that it is, while recognizing the devastating effect that misappropriation has upon public confidence in the bar and the Court, whatever the cause of the misappropriation.
But we have been unable to rationalize the qualitative differences that would excuse the violation in the case of one suffering disease or defeat, or one suffering from drugs or other dependency from one suffering the anguish of collapsing home life or marriage due to economic or other strains. Consequently, we have chosen to resolve the choice of professional discipline by maintaining our primary focus on the public interest.
In four recent cases, In re Hein, 104 N.J. 297 (1986), In re Romano, 104 N.J. 306 (1986), In re Canfield, 104 N.J. 314 (1986) and In Re Ryle, 105 N.J. 10 (1987), we found it necessary to disbar attorneys of previously good record whose dependence on drugs or alcohol had contributed to or caused the loss of judgment that led to misappropriation of clients' funds. We do not find the circumstances of this case markedly different in degree or in kind.
Respondent was admitted to the bar in 1957. He maintained a solo practice in Ocean County in real estate, matrimonial, and estate matters. In 1978 his practice began to decline due to increased competition, general economic decline, and changes in the law. His consumption and dependence on alcohol began to increase. He developed an indifferent attitude, not returning telephone calls and taking extended lunches. During September of 1981, he undertook a closing on behalf of a client, Gustavsen. As part of the representation, respondent was to satisfy an open mortgage in the approximate amount of $11,500 from closing proceeds. This mortgage was not, in fact, paid at the time of the closing or shortly thereafter. It was this that prompted an inquiry into respondent's conduct. A subsequent audit disclosed instances of misappropriation of clients' funds, some of which were candidly disclosed by the respondent to the Office of Attorney Ethics' investigator.
In sum, it was conceded that with respect to five client matters, a total of approximately $17,684 was diverted to the
personal use of respondent for mortgage payments, food, office expenses, and other overhead items. Although the exact dates of the misuse of the funds are not specified, it is clear that the principal matter in controversy, the $11,500 mortgage transaction, closed in September 1981, and therefore the major dates of involvement were in the latter part of 1981.
Upon disclosure of these occurrences, respondent was immediately temporarily suspended from the practice of law in early 1982.
In evaluating the quality of an attorney's misconduct, we have not sought to draw fine lines between the losses of volitional or rational powers or higher forms of consciousness. Instead, we have attempted to determine if circumstances exist that would justify us in concluding that he had suffered such a loss of comprehension that he was unable ...