On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
[105 NJ Page 250] Acting on a presentment filed by the District V-A Ethics Committee (Essex DEC) and five presentments filed by the District XII Ethics Committee (Union DEC), the Disciplinary Review Board (DRB) determined that respondent, Hubert T. Johnson, had committed numerous ethical infractions. Specifically, the DRB concluded that respondent failed to carry out contracts of employment, in violation of DR 7-101(A)(2); that his misconduct demonstrated a pattern of neglect in his handling of clients' legal matters, contrary to DR 6-101; and that he kept retainers without performing services therefor, commingled clients' trust funds, and failed to account to his clients as required by DR 9-102, all of which reflected adversely on his fitness to practice law. See DR 1-102(A)(6). Because these professional delinquencies are alleged to have occurred between 1978 and 1982, respondent's conduct was governed by the precepts set forth in the Disciplinary Rules then in effect,
rather than in the Rules of Professional Conduct, which were adopted on July 12, 1984, to be effective September 10, 1984. See Rule 1:14.
Most notably, the DRB found that in respect of the three charges involving unauthorized use of clients' funds and misappropriation -- the Fluker, Mack, and Briggs matters addressed below -- there was "no evidence that respondent intentionally or knowingly misappropriated clients' funds," and hence the disbarment rule of In re Wilson, 81 N.J. 451 (1979), did not obtain. The DRB unanimously concluded that respondent's ethical transgressions warranted his being suspended from the practice of law for three years retroactive to the date of his temporary suspension, December 16, 1982, and that he should not be readmitted until he reimburses the Clients' Security Fund the full amount of $29,501.68 paid out by the Fund to eleven claimants, of which $13,672.94 had been paid back to the Fund by the date of the DRB's Decision and Recommendation.
The Office of Attorney Ethics (OAE) resists the DRB's recommendation of a three-year suspension. It seeks respondent's disbarment, based on "overreaching * * * and, most seriously, multiple instances of post- Wilson misappropriation of client trust funds." Our independent review of the record does not satisfy us that there is clear and convincing evidence of respondent's knowing misappropriation of funds held in trust for clients. We therefore accept the DRB's recommendation for discipline short of disbarment.
Because our concern is concentrated on the misappropriation cases, we pause on the complaints that involve failure to carry out contracts of employment, failure to communicate with clients, and conduct amounting to a pattern of negligence -- the Ashford, Howell, and Bunn matters -- only long enough to record our conclusion that the record demonstrates those infractions, except in the Ashford case, by clear and convincing
evidence. The Ashford matter we see as a fee dispute involving at most a misunderstanding of the terms of the retainer agreement. Respondent has acknowledged that he owes Mrs. Ashford a refund, the prospects of collecting which are remote, at least at this time, in view of respondent's indigency.
The misappropriation cases, three in number, involve respondent's clients Fluker, Mack, and Briggs. We recite the pertinent facts separately.
Respondent represented Runette Fluker, guardian ad litem of Sherri Fluker, an infant, in her claim against one Elton Hill and the City of Newark. The case was settled for a total of $20,000. On November 17, 1980, Judge Margolis entered judgment in favor of Sherri Fluker for $10,901.68, representing the infant's share of the proceeds. The order for judgment required that the infant's share be deposited with the Essex County Surrogate, to be maintained by the Surrogate and the guardian ad litem in an interest bearing account. The City mailed its check for $20,000 payable to respondent and Runette Fluker as guardian ad litem, on January 13, 1981. The check was endorsed and respondent deposited it in his trust account the following day, January 14, 1981.
Respondent did not thereafter deposit the funds with the Surrogate or otherwise bring them under the Surrogate's control. Letters dated November 4, 1982, and November 5, 1982, from Judge Scalera and the Essex County Surrogate respectively, inquiring about the infant's funds went unanswered. On December 9, 1982, Judge Scalera signed an order directing respondent to show cause why he should not be compelled to comply with Judge Margolis's prior order. Thereafter Judge Scalera directed respondent to deliver $10,901.68 to the Surrogate. Respondent failed to comply with that order, wherefore
yet another order was entered, requiring respondent to pay $7500 to the Surrogate by February 17, 1983, on account of the $10,901.68 judgment, which by that time had accumulated an additional $3,208 in interest. Respondent deposited the $7500 on February 22, 1983. On April 6, 1983, Judge Scalera entered a consent judgment against respondent for $6686.68, the monies withheld by respondent, plus interest. Additional interest was to be accrued until the judgment was satisfied. When the ethics complaint was filed on June 1, 1984, the judgment had not yet been paid, but respondent deposited the funds with the Surrogate around September 1984.
Mack, like Fluker, involves funds of an infant. On April 5, 1982, Judge Harth entered judgment in favor of Rahin Mack, an infant, for $7,153. The order required that the funds be deposited with the Essex County Surrogate for the benefit of the infant. Respondent thereafter failed to file guardianship papers, so on October 14, 1982, the Surrogate requested information concerning those documents. Respondent did not comply with the request, nor did he respond to a letter of October 21, 1982, from the then-Division of Ethics and Professional Services (now the Office of Attorney Ethics) asking for an explanation of the failure to file a guardianship complaint and for an accounting of the proceeds of the settlement.
On November 1, 1982, respondent delivered his attorney's check in the amount of $7,153 to the Surrogate for the account of Rahin Mack. The bank returned the check for insufficient funds. An accounting firm's audit of November 5, 1982, disclosed that respondent did not maintain a client ledger book supporting his trust account activity, as required by Rule 1:21-6, nor had he ever deposited ...