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Matter of Barker

Decided: April 28, 1989.

IN THE MATTER OF RICHARD D. BARKER, 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, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

This disciplinary proceeding arises out of the determination of the Disciplinary Review Board (DRB) to treat as a presentment, the recommendation of the District XIV Ethics Committee for Mercer County (the Ethics Committee) that respondent be privately reprimanded. The Disciplinary Review Board unanimously agreed with the Ethics Committee's findings of unethical conduct but was unable to agree on the appropriate discipline. A majority of the DRB recommended that respondent be suspended from the practice of law for six months, one member of the DRB recommended that respondent be suspended from the practice of law for one year, and two members of the DRB recommended that respondent be publicly reprimanded. Our independent review of the record leads us to conclude that respondent has been guilty of unethical conduct but that a public reprimand is the more appropriate discipline.

I

Respondent was admitted to the bar in 1975. During the period in question respondent was a sole practitioner with a general practice, most of which was in real estate.*fn1 On April 30, 1985, a trust account check in the amount of $2,195.00 to Weichert Realty was returned for insufficient funds. The bank forwarded the overdraft notice to the Office of Attorney Ethics (OAE), which conducted an audit of respondent's books and

records. The audit examination encompassed respondent's records for the period from January 1984 through June 1986.

The audit led the OAE to file a complaint against respondent that charged him with six counts of ethical violations, including failure to maintain required records, failure to safeguard client funds, misappropriation relating to a personal real estate transaction, and other allegations of misappropriation of client funds.

The most serious charge against respondent is that he misappropriated client funds to purchase his home. As found by the DRB, the facts with respect to this allegation are:

"On April 2, 1985 respondent closed title on his residence. He had obtained a mortgage loan in the amount of $45,300.00. The additional cash required at closing amounted to approximately $7,700. Respondent intended to make up the shortfall by utilizing $3,500.00 from his personal funds and the remainder from a fee which he had earned in the McCarren matter. On the closing date, respondent requested his bookkeeper to advise him of the exact balance of the McCarren fee and to transfer it to the "Barker account." He was informed by his bookkeeper that the McCarren balance consisted of $5,324.23. Adding this sum to the above personal funds of $3,500.00, respondent would have had in excess of $8,800.00, more than what was required to cover the $7,700.00 difference between his mortgage loan and the total closing costs.

It was respondent's intention to write a check against his trust account in the amount of $45,300.00, to be covered by the mortgage proceeds check in his possession. Following the closing, that check was to be deposited into his trust account. He intended to write, also, a personal check for the additional monies needed to close title. Sellers' attorney, however, refused to accept respondent's personal check, which was not certified. Respondent then drew the additional funds from his trust account, into which he intended to deposit, after the closing, an equivalent check from his personal account. On April 10, 1985, respondent deposited $3,500.00 into his trust account.

As respondent testified and the auditor concurred, under normal circumstances, there would have been sufficient funds on hand to cover the total amount needed at closing. After the closing, however, certain circumstances came to light which led to the return of the Weichert check.

As the audit disclosed, the balance in the McCarren fee was not $5,324.23, as the bookkeeper erroneously advised respondent, but $3,389.79. This $1,934.44 shortfall ultimately caused the return of the Weichert check ...


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