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In re Goldberg

Decided: January 22, 1988.

IN THE MATTER OF HARVEY GOLDBERG, AN ATTORNEY AT LAW


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.

Per Curiam

This matter came before the Disciplinary Review Board (DRB) on a motion for final discipline filed by the Office of Attorney Ethics (OAE) pursuant to Rule 1:20-6(b)(2)(i). The motion was based on respondent's conviction of eleven counts of misapplication of entrusted property, contrary to N.J.S.A. 2C:21-15, and eleven counts of theft by failing to make required disposition of property received, contrary to N.J.S.A. 2C:20-9.

Respondent was indicted in June 1981 by a Passaic County Grand Jury. He was charged with one count of forgery, twenty-three counts of theft by failure to make required disposition of property received, and twenty-three counts of misapplication of entrusted property. The indictment related to respondent's handling of funds entrusted to him in connection with a series of real estate transactions between December 7, 1979, and May 20, 1980. After respondent entered into a stipulation in which he acknowledged committing the acts alleged in the indictment, the trial was limited to respondent's insanity defense. The jury found him guilty of all counts concerning transactions between December 7, 1979, and April 15, 1980. For all counts concerning transactions between April 21, 1980, and May 20, 1980, however, respondent was found not guilty by reason of insanity.

On March 16, 1982, respondent was sentenced. The sentencing court merged the eleven counts of misapplication of entrusted property into the corresponding theft counts and then sentenced respondent to eleven concurrent terms of imprisonment for four years each and ordered restitution of $291,727.88. The Appellate Division affirmed in an unpublished opinion. We denied certification, State v. Goldberg, 94 N.J. 617 (1983). Respondent began serving his custodial sentence in December 1983 and, following his enrollment in the Intensive Supervision Program, was released from custody on April 24, 1984.

Pursuant to a consent order, respondent was temporarily suspended from the practice of law on August 18, 1980.

The DRB concluded that respondent's criminal conviction "established that he had engaged in illegal conduct which adversely reflected on his fitness to practice law because of dishonesty, fraud, deceit, or misrepresentation" in violation of Disciplinary Rule 1-102(A)(3)(4).*fn1 Accordingly, by the requisite majority, the Board recommended that respondent be permanently disbarred. One member of the DRB dissented. He contended that because respondent had been partially successful at trial in raising an insanity defense based on the condition of compulsive gambling, the question whether or not compulsive gambling should be recognized as a mitigating factor in a disciplinary hearing "is a question which must be resolved by judicial determination."

I

In disciplinary proceedings against an attorney, a criminal conviction is conclusive evidence of a respondent's guilt. R. 1:20-6(b)(1); Matter of Litwin, 104 N.J. 362, 364-65 (1986).

Thus, conviction of a crime conclusively establishes the facts on which the conviction is based. The sole issue to be determined is "the extent of final discipline to be imposed," R. 1:20-6(b)(2)(ii); In re Kushner, 101 N.J. 397, 400 (1986). There is no need to make an independent examination of the underlying facts, In re Bricker, 90 N.J. 6, 10 (1982), but those facts may be relevant to the nature and extent of discipline ultimately imposed. In re Rosen, 88 N.J. 1 (1981).

We have independently examined the record and we are satisfied that the facts found by the DRB are supported by clear and convincing evidence. Respondent was admitted to the bar in 1960. By his own admission, during the early years of his legal career he "started gambling five times more than [he] was making." Soon, he recalled, "every day became a gambling day. Every vacation became a gambling vacation." At first respondent funded this activity through his earnings. Then after exhausting all family savings, he began to borrow "from banks and other sources." At trial, respondent admitted he had used clients' trust funds since 1975 for gambling. He continued these activities undetected by covering his transactions with his winnings or by using funds from new clients to pay back the old accounts before those funds were needed. The trial court concluded:

The type of method that Mr. Goldberg used was a method that takes a great deal of thinking, a great deal of expertise and Mr. Goldberg had that thinking and had that expertise, because as a member of the Bar and being an expert -- and there's no doubt about it, he was an expert on real estate transactions -- he knew just how long he could hold back paying off mortgages and when he was put to the wall, he would go to the next transaction, a more recent transaction and take that money to make good for the older transaction. That was a conscious ...


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