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, Garibaldi, and Stein. Opposed -- Justice O'Hern. Clifford, Justice, concurring. O'Hern, Justice, dissenting.
[121 NJ Page 173] This matter arises from a report of the Disciplinary Review Board (DRB) recommending that respondent, Donald G. Howard, be disbarred. The matter came before the DRB on a presentment filed by the District IIIB Ethics Committee (DEC), charging respondent with misappropriation of client trust funds. Our independent review of the record leads us to conclude that disbarment is the appropriate discipline.
Respondent is a sole practitioner who was admitted to the bar in 1968. In August 1987 respondent was experiencing severe financial difficulties. He had failed to pay the real-estate taxes for 1986 and 1987 on his home, the Internal Revenue Service had on several occasions imposed liens on his attorney business account for unpaid withholding taxes, and his attorney business account was frequently overdrawn. Respondent informed an auditor of the Office of Attorney Ethics (OAE) that he owed approximately $150,000 in debts.
His law practice was marginal. As of August 31, 1987, his trust-account balance was only $118.40. From September 1987 through December 1987 respondent made only four deposits to his trust account in excess of $1,000, and those funds were fully disbursed within days of receipt.
Respondent's problems arose from his handling of funds he had received from two unrelated clients, Gerhard Kaufman and Robin Henrie Irving. On September 1, 1987, Gerhard Kaufman gave respondent a personal check in the amount of $15,200. Mr. Kaufman testified at the DEC hearing that respondent was to pay that money to Kaufman's ex-wife, Marie, as part of a final divorce settlement. On September 3, 1987, rather than depositing Kaufman's check in his trust account, respondent deposited Kaufman's check in his personal account at the Provident National Bank in Philadelphia, Pennsylvania. Prior to that deposit, the balance in respondent's personal account was $20.90. On September 13, 1987, ten days after the deposit of the Kaufman check, respondent had exhausted all but $275.61 of the $15,200 by paying off personal debts, including $6,527.41 for overdue real-estate taxes on his residence and $4,714.53 for mortgage payments on his residence.
The DRB in its Decision and Recommendation succinctly sets forth the facts of the respondent's dealing with his other client, Robin Henrie Irving, as follows:
During this same time period, respondent received $45,000 from Yellow Freight Lines for his client, Robin Henrie Irving, in settlement of a personal injury matter. This check was deposited into respondent's trust account on September 2, 1987. [ ] According to the September 8, 1987 Statement of Account [ ] prepared by respondent and signed by the client, respondent was entitled to a total of $14,000 in fees and costs. The sum of $11,000 was to be held in trust by respondent to cover the estimated amount due on a workers' compensation lien. Mrs. Irving received the balance of $20,000 in two separate checks. The first check, in the amount of $19,500, was given to Mrs. Irving on September 8, 1987. The second and final payment of $500 was made on September 14, 1987. As reflected on respondent's client ledger for Irving, two days after depositing the Irving settlement check, respondent issued two checks to himself as fees, totalling $1,500. Between September 8 and September 19, respondent took an additional $3,700 as fees from the Irving funds. He also diverted $15,200 of these funds to pay Marie Kaufman on September 17, 1987, more than two weeks after he received, deposited in his personal account, and misappropriated the $15,200 in Kaufman funds. Following all of these payments, the balance of Irving funds being held to pay the workers' compensation lien in respondent's trust account was $4,600, or $6,400 less than the $11,000 respondent had agreed to hold in trust to pay the compensation lien. Respondent contended that he had "sufficient equity" in the account to cover the disbursements. No proof of any kind in support of this position was provided.
Additionally, respondent did not pay for sixteen months a worker's compensation lien of $17,761.51 (subsequently compromised to $11,707.67) that Reliance Insurance Company (Reliance) had on the proceeds of Mrs. Irving's personal injury settlement. Respondent was well aware of Reliance's outstanding lien as evidenced by a "Statement of Account" that he had furnished to Mrs. Irving on September 8, 1987. Although Reliance had inquired in writing repeatedly regarding the status of the Irving case (on January 6, 1988, March 30, 1988, and July 18, 1988), respondent failed to reply.
Finally on November 16, 1988, Reliance retained a New Jersey attorney to institute legal action against respondent. Thereafter, respondent agreed to settle the $17,761.51 lien for $11,707.67. In January 1989, respondent paid the compromised lien by drawing a check for $11,000 on his attorney trust account and a check for $707.67 on his business account.
Prior to the September 2, 1987 deposit of the Irving settlement funds of $45,000, respondent only had $118.40 in his trust
account. On October 14, 1987, less than six weeks after the $45,000 deposit, the total funds on deposit in respondent's trust account were $6,891.52. Thereafter, respondent regularly had less than the $11,000 he ultimately disbursed from the account in January 1989 for the Reliance lien on the Irving settlement funds.
Respondent was first audited in the fall of 1987 by an auditor engaged by the OAE at the request of the DEC, which at that time was investigating two other complaints against respondent. Those complaints did not concern any allegations of misappropriation but rather concerned claims of respondent's gross negligence with respect to a worker's compensation claim of his client Leslie Nirdlinger. Because we conclude that respondent should be disbarred for knowing misappropriation, we do not address appropriate discipline that respondent should receive with respect to Niedlinger's claim.
The audit revealed the Kaufman and Irving transactions. When questioned about the Kaufman account, respondent was very evasive. First, he claimed that he had "no recall" of Kaufman, and then claimed it was only a coincidence that the amount of the Kaufman check ($15,200) was the same amount deposited in his personal account. He later informed the auditor that he thought Kaufman had agreed to lend him $15,200. His responses with respect to the Irving matter were equally evasive. He first told the auditor that the workers' compensation lien amounted to approximately two-thirds of the $45,000 settlement, and that the Irving ledger did not reflect respondent's fee of $15,200.
Respondent also disclosed that he owed approximately $150,000. To the auditor's direct inquiry about whether he had used incoming trust funds for business or personal expenses, respondent admitted, "I'm afraid I might have."
The DEC concluded that respondent had misappropriated both Kaufman's and Irving's account, and recommended public discipline. Likewise, the DRB concluded by clear and convincing
evidence that respondent had knowingly misappropriated the funds of his clients Kaufman and Irving.
This is an unfortunate case of a lawyer in severe financial difficulties using his clients' funds to pay his personal debts. Knowing misappropriation "consists simply of a lawyer taking a client's money entrusted to him, knowing that it is the client's money and knowing that the client has not authorized the taking." In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986).
It is undisputed that respondent used the funds of Kaufman and Irving without their authorization or knowledge. Respondent's explanation at the hearing about how he had handled the Kaufman check was not credible. He claimed: (1) Kaufman did not want his ex-wife to receive his check directly because he wanted to conceal his bank-account information, and (2) he wanted to take his fee in the Irving matter without having it pass through his attorney business account, which the Internal Revenue Service had previously levied upon. Kaufman denied that he had asked respondent to conceal his bank-account information. Even if he had made that request, respondent's means of "concealment" was unnecessary, because if he had simply deposited Kaufman's funds in his trust account, Kaufman's account number would have remained unknown to Mrs. Kaufman.
Respondent should have deposited the Kaufman check in his trust account. Instead respondent deposited the check in his personal bank account and proceeded to deplete those funds for personal expenses without his client's knowledge. We conclude by clear and convincing evidence that respondent knowingly misappropriated Kaufman's funds.
Likewise, we find that respondent knowingly misappropriated Irving's funds. He used Irving's funds to pay Kaufman without her knowledge or authorization. Moreover, respondent knew that the Reliance lien was to be paid from the settlement
proceeds. He was authorized by his client to pay that lien from the settlement funds and advised his client that he would do so. Instead for sixteen months, respondent failed to pay the lien. Respondent deliberately lied to Reliance about the status of the case. The Irving case was settled on August 24, 1987. Yet, three days after the settlement, respondent advised Reliance that the case was not settled but that only an offer had been made. For the next sixteen months, respondent ignored the numerous telephone and written inquiries Reliance made to him. Only when threatened by a lawsuit did respondent pay the lien.
Most importantly, during this sixteen-month period, respondent did not maintain in his trust fund sufficient funds to pay Reliance's lien. All the parties in the Irving case agreed that respondent would pay Reliance's lien from the settlement proceeds deposited in his trust account. Hence, with respect to that lien respondent acted as the depository of funds. His actions were akin to those of escrow agent. In re Hollendonner, 102 N.J. 21, 28-29, 504 A.2d 1174 (1985), we held that "an attorney found to have knowingly misused escrow funds will confront the disbarment rule of In re Wilson, supra, 81 N.J. 451 [409 A.2d 1153]." Accordingly, we conclude that respondent knowingly invaded the funds that were to be used to pay Reliance's compensation lien. Such action constitutes a knowing misappropriation under In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979).
Respondent's actions are wholly unacceptable. As the DRB in its Decision and Recommendation stated:
This is not simply a trade-off between Kaufman and Irving of fees due. To the contrary, the facts demonstrate clearly and convincingly that respondent, who was in dire need of funds to cover personal expenses, knowingly misappropriated client funds. Respondent intentionally used the Irving funds, intended to cover the Reliance lien, as a float. The Board is convinced that respondent knew that he was misappropriating client funds when he deposited the Kaufman funds in his personal account and drew on those funds, when he drew fees from the Irving trust funds, and at each step thereafter.
The Board notes further that respondent was less than candid and forthright both with the Office of Attorney Ethics auditor and in his testimony before the
District IIIB Ethics Committee. Rather, he was indirect and evasive and, as remarked by the Committee, was 'at best, ambiguous.' Given this fact, the Board attaches no weight to respondent's unsupported and self-serving claims that he believed he had equity ...