On an order to show cause why respondent should not be disbarred or otherwise disciplined.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
This is an attorney-disciplinary case. The District Ethics Committee for Bergen County, District II-A-North (the "DEC" or "Committee"), filed complaints against respondent, Marcia S. Kasdan, in three matters. Hearings were held on a consolidated basis for all three matters before a hearing panel, which recommended public discipline with respect to each of the three complaints. After reviewing the matters the Disciplinary Review Board (the "DRB" or "Board") issued its Decision and Recommendation, recommending imposition of a three-year suspension and that reinstatement to the practice of law be subject to conditions.
The matter is before this Court in accordance with an order entered under Rule 1:20-5(a) requiring respondent to show cause why she should not be disbarred or otherwise disciplined.
Respondent was admitted to the practice of law in New Jersey in 1978 and maintained a law office in Englewood Cliffs. In 1990, the District IIA Ethics Committee filed three formal complaints. The complaints were based on respondent's representation of three clients, referred to as the "Davilla," "Wolkoff," and "Goldberg" matters. A critical factor in the Davilla and Wolkoff complaints is that respondent had been suspended from the practice of law under a disciplinary order of the Court when she represented those clients. The complaints charged respondent with violations of Rules of Professional Conduct ("RPC ") 3.3(a)(1) (making false statements to a tribunal), 3.4(c) (disobeying an obligation under the rules of a tribunal), 1.15 (safekeeping property), and 8.4(c) (misrepresentation).
The DEC found respondent guilty of the offenses charged in the complaints and recommended public discipline. The DRB agreed with that determination, with certain differences. With respect to the charge that respondent had engaged in the practice of law while she was suspended from the practice of law for ethics violations, the DRB, unlike the DEC, determined that respondent's infraction constituted a failure to follow Guideline No. 23, which constituted a separate violation of RPC 3.4(c). Further, the DRB, unlike the DEC, did not find that respondent had knowingly disbursed client funds in violation of RPC 1.15 because no clear and convincing evidence demonstrated that respondent released funds without authorization.
We have independently reviewed the record and are satisfied that the findings of the DRB are comprehensive and accurate. We recapitulate the Board's summary of the salient facts:
On July 4, 1989, approximately two weeks before her three-month suspension in New Jersey was to begin, respondent sought a stay of her suspension in order to complete her representation of certain clients, including Ms. Davilla. On July 11, 1989, the Court denied her application for a stay. On July 17, 1989, the suspension took effect.
At the DEC hearing, respondent stipulated that, on July 25, 1989, she appeared before Judge Kulthau of the Superior Court of Middlesex County to argue a change-of-custody motion in the Davilla case. Thereafter, on July 8, 1990, she and her adversary met with Judge Kulthau to help resolve certain ambiguities arising from the transcription of the tape of the court proceedings on July 25, 1989. At no time from July 17, 1987 through January 8, 1990, did respondent tell her adversary or the Judge of her suspension (C-1 in evidence). Respondent testified that she verbally advised her client of the suspension after the July 25, 1989 court appearance. She acknowledged that she never gave prompt written notice of the suspension, as required by Guideline No. 23, provided to her with the Court's order of suspension.
At the DEC hearing, respondent testified as follows:
"I was in error, I regret sincerely that I made this error. And upon realizing the extent of my error, which I do and I am sorry to have to appear before you in this manner, I tried to look for help. I realized that it was not acceptable to be a professional and not understand the limitation of that which you are allowed to do. And I understood the limitations, but somehow or other I allowed what I perceived as the needs of Miriam Devila [sic] and her baby infant son to interfere with the duties that I had sworn to uphold in the Court."
In this matter, respondent stipulated that she failed to give notice of her suspension to either opposing counsel or the Judge assigned to hear the matter and that she failed to act with candor in advising the court or her adversary of her suspended status, in violation of RPC 3.3(a)(1) and RPC 3.4(c) (C-1 in evidence). Respondent, however, denied that she represented Eugene Wolkoff while suspended.
The presenter called opposing counsel, Jeffrey Weinstein, and his associate, Cathy M. Abrams, to testify about their contact with respondent after her suspension on July 17, 1989. Mr. Weinstein testified that he talked with respondent about the child visitation rights and about the amount of support. Mr. Weinstein then produced a letter to Judge Boyle dated July 21, 1989, signed by respondent, in which she enclosed a proposed partial order confirming the court's decision of that date (C-6 in evidence). Mr. Weinstein had been sent a copy of the letter as opposing counsel. In addition, Ms. Abrams wrote a letter to respondent on August 2, 1989, complaining that she had not yet received a required ...