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.
[110 NJ Page 59] Once again, we must address the difficult problem of evaluating the mitigating effect of compulsive behavior on an attorney's admitted misappropriation of clients' funds. This matter arises from a report of the Disciplinary Review Board (DRB) recommending disbarment of respondent for the misappropriation. Respondent argues that at the time of the misappropriation, he was caught in the grips of the "disease" of compulsive gambling, an "impulse disorder" which causes the victim to lose control over his behavior and strips him of the ability to appreciate or understand the full consequence of his acts, thus
demonstrating that he did not "knowingly" misappropriate clients' funds, an event that almost invariably results in disbarment under the rule of In re Wilson, 81 N.J. 451 (1979).
Procedurally, this case arose in two phases. Following the DRB's 1983 recommendation that respondent be disbarred for misappropriation of trust funds, we remanded the matter to the District Ethics Committee (DEC) for a supplemental hearing on Lobbe's compulsive gambling defense. At this 1986 hearing, conflicting expert testimony was offered. Lobbe's expert, Dr. Sirgay Sanger, a Board-certified psychiatrist who had been treating respondent since 1983, testified that compulsive gambling is an "impulse disorder" so powerful that an affected individual is no longer able to maintain a normal life pattern and that although, on a superficial level, Lobbe may have recognized that taking clients' money was wrong, he was unable to refrain from what his unconscious was forcing him to do.
The OAE's expert witness, Dr. David J. Flicker, also a Board-certified psychiatrist, agreed that Lobbe was a pathological gambler but testified that the psychiatric profession does not recognize compulsive gambling as a mental disorder that can render a person unable to conform his conduct to legally acceptable standards. The DRB summarized his views:
He opined that respondent had the ability to understand it was wrong to take clients' funds and to conform his conduct to legal and ethical standards. He knew the nature and quality of his acts. In all areas except gambling, * * * respondent did not have diminished mental ability. * * * [R]espondent simply viewed the taking of money as borrowing and in that sense, had no intent to do anything wrong. Had it not been for gambling, respondent probably would not have taken funds in the first instance. Nonetheless, * * * respondent knew his behavior was wrong and against the rules of professional ethics.
In sum, Dr. Flicker concluded that Lobbe had both the ability to understand that misappropriating clients' funds was wrong and the ability to conform his conduct to legal and ethical standards.
The DRB found that although pathological gambling has been medically recognized as an impulse control disorder, this
recognition does not mitigate a gambler's culpability for misappropriation. The DRB also concluded that Lobbe's disorder did not result in a "'loss of competency, comprehension, or will * * * of such magnitude that it would excuse or mitigate conduct that was otherwise knowing and purposeful.'" (quoting In re Hein, 104 N.J. 297, 302 (1986)). The Chairman of the DRB based a concurring recommendation of disbarment on Lobbe's admitted misappropriation of $5,000 to aid his needy parents. He would otherwise have regarded the compulsive gambling as a mitigating factor warranting an indefinite suspension until we could be assured Lobbe's mental illness was arrested. Another member of the DRB dissented. He would have imposed a lengthy suspension but believed that the recognized disease of compulsive gambling warranted relief from the Wilson sanction. In his view, "[a] balance must be struck" between maintaining public confidence in the bar and the bar's maintaining respect for the ethics system's ability to decide each case "on its own merits."
Initially, we note that, like the DEC and the DRB, we are clearly convinced that Lobbe misused clients' funds. Even while in law school in the early 1970s, respondent gambled heavily, but thereafter brought his problem under control. However, in 1981, respondent's compulsive gambling escalated to overwhelming propensities. Ironically, it was a 1981 visit to Atlantic City on legal business that helped to trigger respondent's relapse. This exposure to State-sponsored gambling coincided with respondent's assumption of sole control of the finances of his law practice. Prior to that, he had practiced in partnership with an attorney who had joint, or at least close, supervision of their shared trust account.
Respondent, his secretary, and his wife related his swift decline. In early 1981, he began betting on professional and college basketball games every night; he did not really have any daily schedule for his law practice. If he had to make appearances, he would do so, but otherwise gambling was his life. Respondent's personal friendships changed; gamblers
frequented his law office. He admitted that there were cases -- "at least one case, in particular, that I know I just demolished." He had to be near a radio at quarter to and quarter after the hours so that he could follow the sports results. So obsessive was his preoccupation with gambling that even when his father became terminally ill (losing a leg to ...