On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Wilentz, C.J., and Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein, JJ. Opposed -- None.
We confront again the recurring, vexatious, even tragic problem of the alcoholic lawyer who transgresses our ethics Rules. Respondent's misconduct, including knowing misappropriation of client funds, occurred in 1980-81, when he was drinking heavily, as had been his routine for almost a quarter of a century. This Court temporarily suspended respondent from the practice of law in November 1982 after he had failed to submit his books and records for audit. We are satisfied that since that date respondent has remained sober, has been a faithful and diligent member of Alcoholics Anonymous, and has made giant strides toward regaining control of his life. Despite those laudable efforts, we adhere to our well-established position that a respondent's alcoholism is not a sufficient mitigating circumstance to overcome the rule of In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979), mandating disbarment in knowing-misappropriation cases.
The facts of the ethics violation, admitted in every respect, need be sketched only in broad outline. Respondent, George Hahm, represented purchasers of residential real estate in September 1979. When a problem arose in connection with the closing of title, the sellers of the property sued respondent's clients for the deposit monies of $15,500. The buyers authorized Hahm to settle the lawsuit by disbursing $7,000 to the sellers and returning the remaining $8,500 to the buyers. After respondent settled the case in September 1980 consistent with the terms of his authorization, the realtor, who had been holding the $15,500 deposit, sent the money to respondent to be disbursed as agreed. Despite numerous efforts, the purchasers were unable to find out from respondent what had happened
with the case. In June 1981 Hahm told them that the case was "just about over." The clients later consulted another attorney, who learned that the matter had been settled in September 1980. In response to the new attorney's inquiry, respondent finally sent his clients a check in the amount of $8,500 drawn against his trust account, dated November 6, 1981, more than a year after settling the matter.
After his clients filed a grievance, respondent wrote a letter to the District Ethic Committee (DEC) investigator in January 1982, explaining that respondent had had extensive discussions with his clients and that they had authorized him to retain the balance of the deposit monies until the end of October 1981 "to have those funds on deposit to compromise and pay * * * claims [made by the real-estate agent]." In response to the formal ethics complaint that followed, respondent asked that the letter be considered his answer.
The DEC held a hearing in September 1982. Although he had been asked to produce his trust-account records at the hearing, Hahm did not appear. After the hearing the panel again sought the records. It also notified the Division of Ethics and Professional Services about certain improprieties regarding respondent's trust fund. That office scheduled an audit for October 1982 of respondent's books and records. When respondent neither appeared nor submitted the records, this Court entered an Order of Temporary Suspension. We continued the suspension in December 1982, pending final disposition of the ethics proceedings. The DEC report concluded that respondent had failed to represent grievants in a professional and zealous manner, had failed properly to fulfill the contract for professional services, and had engaged in conduct that adversely reflected on his fitness to practice law, in violation of DR 1-102(A)(5) and (6), and DR 7-101(A)(1) and (2).
When the matter came before the Disciplinary Review Board (DRB) in March 1982, respondent's counsel raised the defense of alcoholism. The DRB then referred the matter to the
Alcohol Advisory Committee, which concluded that respondent's actions had been the result of both alcoholism and his need for money to ease his financial difficulties; that his judgment had not been so impaired as to render him incapable of recognizing or understanding that his retention and use of entrusted funds had been plainly unethical; that he was amenable to treatment; that he appeared to be sincere in his desire to maintain sobriety and was trying to reconstruct his disintegrated life; and that he should undergo an in-depth examination by a professional alcohol counselor and treatment expert in the event he sought reinstatement to the practice of law.
After the DRB had received the Alcohol Advisory Committee's report, it remanded the matter to the DEC "so that it [could] establish a record and reach a determination concerning Respondent's proffer of alcoholism as a mitigating factor." The remand hearings disclosed respondent's habit of consuming as much as twenty-four quarts of beer on weekends and his frequent attendance in court after having consumed one or two quarts of beer. He readily admitted that he had used the $8,500 entrusted to him for his own purposes, and further said that his letter answer of January 1982, which had taken him weeks to prepare, was "a pack of lies." Specifically, he testified that he had taken his clients' funds from a ...