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In re Kotok

Decided: August 11, 1987.

IN THE MATTER OF LESTER KOTOK, AN ATTORNEY AT LAW


On an order to show cause why respondent should not be disbarred or otherwise disciplined.

For Public Reprimand -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein, JJ. Opposed -- None. The opinion of the Court was delivered by Handler, J.

Handler

This is an attorney-disciplinary case. Respondent, Lester Kotok, was the subject of three separate complaints charging professional misconduct. One complaint, filed on February 3, 1982, alleged that respondent represented both parties to a real estate transaction in 1977, the year of his admission to the bar. A second complaint, filed on March 31, 1983, charged that respondent engaged in misconduct in the 1976 completion of his certified Statement of Candidate for admission to the Bar by inaccurately relating a 1975 conviction of a disorderly persons offense. The third complaint was filed on September 6, 1984, and alleged that respondent had engaged in misconduct by mischaracterizing, in a 1983 application to purchase a handgun, the 1975 disorderly persons conviction.

The District I Ethics Committee (Ethics Committee) held separate hearings for each complaint and recommended a public reprimand, a private reprimand, and another public reprimand respectively. Those recommendations were forwarded to the Disciplinary Review Board ("DRB"), which held hearings on May 16, 1984, and May 21, 1986. The DRB issued its decision on January 15, 1987, and recommended a one-year suspension in connection with the first and second complaints but found no basis for discipline in connection with the third complaint. These matters were brought before this Court on an order to show cause why respondent should not be disbarred or otherwise disciplined pursuant to Rule 1:20-5.

I.

We have independently reviewed the record in this case and, except for its determination of ultimate facts with respect to

the third complaint, we are in substantial agreement with the findings of the DRB. We can therefore draw upon the DRB's presentation of the matter as reflected in its Decision and Recommendation. We deal first with whether the evidence of record clearly and convincingly demonstrates ethics violations. We then consider the matter of necessary and appropriate discipline.

A.

The first allegation of misconduct relates to an asserted conflict of interest. Within a month after his admission to the bar in June 1977, respondent was contacted by Alfred Swangler regarding the filing of a workers compensation claim. Respondent looked into the matter and determined that nothing more could be done at that time. Respondent was next contacted by Swangler in September 1977 on behalf of Mr. and Mrs. Ernst J. V. Olsen, who wanted an attorney to prepare their wills and a property deed. Mr. Olsen, 90, and Mrs. Olsen, 82, were living with the Swanglers.

According to the DRB:

Respondent later met with Mr. Olsen in his law office. Olsen wanted a property deed prepared transferring their 22-acre farm to Mr. and Mrs. Swangler. He also wanted their wills to designate the Swanglers as beneficiaries to their estates. During this conversation, Mr. Olsen referred to the Swanglers as the "kids." Olsen said that he had no relatives in this country but had a distant cousin in Europe whom he never saw. Olsen did not want his property to escheat to the state after he died. Olsen also said the "kids" were good to him, took care of him and he loved them and wanted to give them everything he had. The Olsen home was in a state of disrepair. Respondent maintained that he discussed with Olsen the effect of signing a deed and questioned why the Olsens wanted to deed the property to Swangler and also to make the same provision in their wills. According to respondent, Olsen fully understood what he was doing and the nature of his act. Olsen said that Swangler had been injured, was out of work, and he wanted Swangler to have the property. At some later point, Olsen telephoned respondent. He was upset that the wills and deed had not yet been completed.

Having prepared the wills, respondent arranged to meet Mrs. Olsen at the hospital where she would be visiting Swangler who was hospitalized. Respondent met with her privately and informed her that he had not completed the deed. He then explained the wills to her "paragraph by paragraph by paragraph."

Mrs. Olsen did not sign her will at that time because she wanted to talk to her husband, who was at the Swangler residence. Respondent explained to her that the wills had to be signed in the presence of two witnesses and dated. Respondent maintained he had no difficulty communicating with her nor did he perceive any problem of her understanding what he said. Respondent maintained that Mrs. Olsen was lucid and had asked him questions about the will.

On October 11, 1977 respondent went to the Swangler residence with the deed. Swangler summoned Mrs. Olsen, calling her "Mom." Respondent explained the deed to the Olsens and that their wills would accomplish the same effect except they were revocable whereas the deed was not. Mr. Olsen needed a magnifying glass to read the deed. This glass was obtained by one of the Swangler children who referred to Mr. Olsen as "Grandpop."

According to respondent, Mr. Olsen insisted on going ahead with the transaction and was upset with respondent for repeatedly reviewing the will and deed. The Olsens executed the deed and subsequently delivered the wills, already executed and witnessed by persons who were friends of the Swanglers. Later, in November 1977, respondent represented Swangler in prosecuting his workers compensation claim. In 1978, the Swangler's sold the Olsen property. While respondent did not actually handle this sale, he did render services to the Swanglers by filing motions to clear judgments against Swangler so that the property sale could be completed.

The DRB recapitulated the testimony adduced at the Ethics Committee hearings. We have reviewed this evidence and find it probative, viz:

At the ethics proceeding, three witnesses testified that the Olsens had not fully comprehended that they had deeded their property to the Swanglers. Joseph W. Smith, a neighbor of the Olsens, had seen them in 1978 and 1979 and they consistently denied giving their property away. Atlantic County Prosecutor's Office Investigator Deborah Deibler also was told this when she investigated a complaint involving this matter. She had seen the Olsens in late 1977. David M. Van Sant, a senior Atlantic County Welfare Board investigator, interviewed the Olsens in 1979 in a county nursing home. Van Sant concluded that the Olsens believed they still owned their property. In his opinion the Olsens were debilitated, somewhat disoriented and suffered hearing loss and poor vision.

At the ethics proceedings, the hospital records were admitted into evidence. Concerning Mrs. Olsen, the records indicated that she had been hospitalized between August 24 and September 7, 1977. Mrs. Olsen was unable to sign on admission. Swangler was listed as being her grandson on the admission

summary sheet. The records revealed that as of September 7, 1977 she continued to have memory loss. Concerning Mr. Olsen, the records indicated that he was hospitalized from August 19 through September 7, 1977. The admissions summary sheet indicated that he was unable to sign on admission. Mr. Olsen was again hospitalized on November 3 1977. The nurse's notes for the November admission indicated that Mr. Olsen was accompanied by his "grandson."

At the ethics proceedings Swangler testified that he had known the Olsens for about 26 years, having first met them when he was about 14 years of age. He believed he first met respondent in 1978. Respondent first did legal work for him in 1978 concerning his injury and his worker's compensation claim. Swangler stated he sold the Olsen property because he needed money for his bills. He claims he sold the property in April 1978 for $25,000. He maintained he used some of the proceeds on behalf of the Olsens. Swangler contended that he and his wife visited the Olsens on about a daily basis but stopped because of newspaper publicity which suggested he and his wife had taken advantage of the elderly Olsens. He stated that no one had advised him of Mr. Olsen's death. He was not aware that Mrs. Olsen had also died. At the ethics proceeding, Swangler acknowledged that he had been convicted of issuing worthless checks, welfare fraud and forgery.

On these facts, the Ethics Committee concluded that respondent had represented two parties to the same transaction without making proper disclosure to the Olsens concerning their rights and obligations. The DRB concurred. We find it indisputable that respondent's conduct resulted in an unethical conflict of interest with serious adverse consequences to the Olsens who impoverished themselves as a result of not having had independent counsel or having been fully informed as to their interests. See Matter of Dolan, 76 N.J. 1 (1978).

We conclude that the evidence is clear and convincing that respondent engaged impermissibly in a professional conflict of interest, in violation of Disciplinary Rule 5-105 and Disciplinary Rule 1-102(A)(6). Discipline is required.

B.

The second complaint relates to a Bar admission statement. In October 1974, respondent armed himself with a pistol and went to his chiropractor's office to obtain x-rays. A confrontation occurred, respondent drew the pistol and threatened the doctor. Respondent was promptly arrested on armed robbery

and weapons charges. In December 1974, respondent was indicted for possession of a pistol without a permit and for malicious assault. After negotiations with the prosecutor, respondent, in June 1975, pled guilty to the disorderly persons offense of possession of a weapon with intent to assault, contrary to N.J.S.A. 2A:170-3. Respondent's sentence was a $250 fine, two years unsupervised probation, and community service.

On August 20, 1976, respondent, while still on probation, filed a certified Statement of Candidate with the Committee on Character for his admission to the Bar. He completed questions X(b) and X(d) on this Statement.*fn1

The actual questions and respondent's answers are as follows:

X(b). Have you ever been charged with, arrested for, or convicted of, the violation of any law? Yes.

X(d). If you answered yes to A, B, or C, state the nature of the proceeding and give full details, including dates, case numbers, name and location of court, if any, references to court records, facts and disposition. Include all such incidents, except for minor traffic ...


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