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.
This case arises from a report and recommendation of the Disciplinary Review Board (DRB) that respondent be suspended from the practice of law for a period of two years. The DRB's report follows the findings of a Special Master appointed to make a factual record with respect to the charges of ethical misconduct that had been brought against respondent. We find, as did both previous bodies, that the record demonstrates by the required standard of clear and convincing evidence that certain of these charges have been sustained. For the reasons stated in our opinion, however, we believe that the appropriate sanction is a suspension for six months.
This case primarily concerns the respondent's legal representation of Dover Township (Toms River) during the early 1970s. Admitted to the bar in 1965, respondent had practiced primarily in the northern Monmouth County town of Keyport. Following his appointment as Dover Township Attorney in January of 1971, respondent concentrated his practice at an office he opened in Toms River: he undertook, as a single practitioner, to represent the developing municipality. During the next few years, respondent's fees came into question; he was replaced as municipal attorney; the municipality sought to recover the excess fees; and this disciplinary proceeding resulted.
We shall preliminarily address respondent's contention that reliance by the Office of Attorney Ethics on the record of the
civil law suit denied him procedural fairness in the conduct of these disciplinary proceedings. In that matter, captioned Dover Township v. Hecker, a verdict of $110,000 was recovered from the respondent following an extended trial in 1978. The judgment on the jury verdict was entered on May 8, 1978, and was affirmed in an unreported 1979 Appellate Division opinion. The disciplinary hearing commenced on December 7, 1984.
Initially, respondent notes the difference between the preponderance standard of proof required to sustain a civil judgment, whether premised on tort law of civil fraud or on contract law, and the standard of clear and convincing proof required in a disciplinary proceeding. Because the Master's resolution of the issues surrounding the dispute over respondent's fees did not rely on the jury verdict to establish anything other than the amount of fees overcharged, and because the Master's conclusions on ethical misconduct were based on respondent's own statements, we find that there is no inherent due process violation. Cf. Berke v. Chattanooga Bar Ass'n, 58 Tenn.App. 636, 436 S.W. 2d 296, 303 (1968) (prior civil proceeding relevant to overcharges and other matters will be conclusive on issues raised, i.e., fact of overcharges).
In addition, respondent notes the procedural unfairness of the presenter's introducing into evidence before the Special Master the complete trial transcripts without following the Master's instructions to indicate those sections on which the presenter would rely at the hearing. Respondent first learned of this tactic the day before the hearing began.
Because we believe that the Special Master was careful to safeguard respondent's rights, and because the Master's findings of fact and conclusions with respect to the civil litigation are premised only on what the judgment itself established and on the respondent's admitted explanations therefor, we find no such lack of fundamental fairness as would lead us to dismiss the charges. Cf. In re Skevin, 104 N.J. 476, 487 (1986), cert. denied sub nom. Skevin v. Supreme Court of New Jersey, U.S. ,
107 S. Ct. 1954, 95 L. Ed. 2d 526 (1987) (where public interest is involved, extrajudicial statements by ethics complainant do not themselves mandate dismissal of charges).
The substance of the charges against respondent may be reduced to four basic contentions:
The $110,000 fee overcharge verdict.
As noted, respondent acted as Township Attorney for Dover between January 1971 and February 1974. The total amount billed during this period was $328,732. In November of 1975, the Township sued respondent to recover for overcharges: in May 1978, it recovered a civil judgment against respondent for $110,000. The ethics complaint asserted that $45,000 of this $110,000 verdict represented a jury finding of fraud that was conclusively binding in the disciplinary proceedings. Specifically, the respondent had been charged at trial with double-billing; overcharging; charging for unnecessary services, such as review of Board minutes; charging for services of non-lawyers; and failing to give credit for retainers and other payments on account. A subsidiary issue to these allegations was the so-called "bond issue." The complaint charged that in connection with a bond issue for a new Municipal Court and Police Center Building, respondent had duplicated the services of New York bond counsel by retyping, and charging for, work done by that firm.
The concealment of assets after the verdict.
Both during the trial and after the judgment of $110,000 was entered against the respondent, he transferred various assets to family, friends, business associates, and others. The complaint
contends that these transactions were made with the intent to hinder and delay Dover Township's recovery of its judgment. Respondent denied any intent to defraud, but asserted that he did only what any other judgment debtor may lawfully do in the face of a judgment with regard to an antecedent debt or with respect to other business arrangements. The respondent was also charged with ...