On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
Chief Justice Wilentz and Justices Handler, Pollock, Garibaldi and Coleman join in this opinion. Justice O'Hern filed a separate Dissenting opinion in which Justice Stein joins. O'hern, J., Dissenting.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
IN THE MATTER OF RAMON A. IRIZARRY,AN ATTORNEY AT LAW (D-19-94)
Argued February 28, 1995 -- Decided July 21, 1995
Ramon Irizarry issued a check to the Clients' Security Fund, now known as the Lawyers' Fund for Client Protection, that was returned for insufficient funds. As a result, the Office of Attorney Ethics (OAE) scheduled a select audit of Irizarry's books. The audit took place from January 1989 through May 1990. The OAE auditor discovered a shortage of over $37,000 in Irizarry's trust account. Irizarry was directed by the auditor to close the existing trust account and open a new one. Contrary to the OAE's instructions, Irizarry continued to use the old trust account not only to issue checks to others, but also to pay himself fees, thereby exacerbating the deficiency.
Irizarry had received numerous bank statements revealing that his trust account was overdrawn. At the time of the select audit, the ledger cards for several clients showed debit balances. Irizarry had deposited personal funds into the trust account on several occasions.
One case exemplifies Irizarry's unethical conduct. He represented Zoilo and Maria Maldonado in connection with their purchase of real estate. Irizarry received $55,420.10 from his clients and deposited this amount into his old trust account. The closing, held on April 14, 1989, proceeded routinely. Irizarry issued a $45,987.51 trust account check, dated April 27, 1989 and made payable to Citicorp Mortgage, to pay off the first mortgage. The check was presented for payment on July 12, 1989, and was returned for insufficient funds. When presented again on July 19, 1989, the check was again returned for insufficient funds.
On July 17, 1990, Irizarry was temporarily suspended from the practice of law by the Supreme Court. With his consent, he has remained under suspension.
The District XIV Ethics Committee (DEC) charged Irizarry with knowing misappropriation of client funds; gross neglect; and lack of diligence. A Special Master recommended public discipline. The Disciplinary Review Board (DRB) recommended disbarment.
HELD: The record clearly and convincingly establishes that Ramon A. Irizarry knowingly misappropriated client funds. Therefore, Irizarry is disbarred from the practice of law.
1. Although the record reveals constant deficiencies in Irizarry's trust account, the Maldonado matter suffices to establish his guilt of knowing misappropriation. By issuing trust account checks to himself, Irizarry knowingly invaded the Maldonado trust funds. (pp. 3-4)
2. An attorney's duty to preserve client funds is nondelegable. Lawyers may not absolve themselves of misappropriation of client funds by delegating to employees the authority to complete signed checks and then failing to supervise those employees. (pp. 5-6)
3. There is no basis for a remand for further proceedings before the Special Master. (p. 7)
Justice O'HERN, Dissenting, in which JUSTICE STEIN joins, is of the view that the record shows blatant record-keeping violations but that a finding of knowing misappropriation cannot be sustained by clear and convincing evidence.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI and COLEMAN join in this opinion. JUSTICE O'HERN filed a separate Dissenting opinion in which JUSTICE STEIN joins.
The District XIV Ethics Committee (DEC) charged respondent with knowing misappropriation of client funds, RPC 1.15 and 8.4(c); gross neglect, RPC 1.1(a); and lack of diligence, RPC 1.3. The Special Master recommended public discipline, and the Disciplinary Review Board (DRB) recommended disbarment. We agree that the record clearly and convincingly establishes that respondent knowingly misappropriated client funds. Accordingly, we adopt the recommendation of the DRB and order that respondent be disbarred.
Respondent first came to the attention of the Office of Attorney Ethics (OAE) when respondent's check to the Clients' Security Fund, now known as the Lawyers' Fund for Client Protection, was returned for insufficient funds. The OAE naturally scheduled a select audit of respondent's books. A field auditor with the OAE conducted the initial audit on January 27, 1989. The OAE conducted subsequent audits ending in May 1990. On July 17, 1990, we temporarily suspended respondent. With his consent, respondent has remained under suspension to date.
Respondent admits that when the auditor arrived for the initial audit, respondent's office was in chaos. The auditor found severe deficiencies and irregularities in respondent's records. More significantly, after constructing a tentative balance of respondent's books, the auditor discovered a shortage of $37,465.31 in respondent's trust account. He directed respondent to close the existing trust account and open a new one. Although respondent disputes that the auditor directed him to close the account, both the Special Master and DRB rejected respondent's testimony and accepted that of the auditor. Moreover, respondent does not dispute that he knew that the deficit existed.
Nor could he. Respondent had received numerous bank statements revealing that his trust account was overdrawn. At the time of the select audit, the ledger cards for several clients showed debit balances totaling $12,982.94.
In addition, respondent deposited personal funds into the trust account on several occasions. To respondent's credit, the deposits reflect an attempt to bring the account into balance. The deposits also evince, however, respondent's knowledge of the trust account deficit.
Contrary to the OAE's instructions, respondent continued to use the old trust account not only to draw checks to other drawees, but also to pay himself fees, thereby exacerbating the deficiency. From February 3 through July 28, 1989, respondent drew trust account checks to himself totaling more than $32,000.
Although the record reveals constant deficiencies in respondent's trust account, one matter, respondent's representation of Zoilo and Maria Maldonado, suffices to establish that respondent is guilty of knowing misappropriation. Respondent represented the Maldonados in connection with their purchase of certain real estate from Ramon and Tirsa Martin. Respondent received $55,420.10 from his clients and deposited this sum into his old trust account. The closing, held on April 14, 1989, proceeded routinely.
Respondent issued a $45,987.51 trust account check, dated April 27, 1989, and made payable to Citicorp Mortgage, to pay off the first mortgage. The record does not reveal the date on which respondent forwarded the check to Citicorp. The check was presented for payment, however, on July 12. It was returned unpaid because of insufficient funds. When presented on July 19, 1989, the check was again returned for insufficient funds.
Although respondent subsequently deposited personal funds into the account, he never deposited enough to pay principal, interest, and penalty charges due Citicorp. Ultimately, the title company satisfied the mortgage. By issuing trust account checks to himself, respondent knowingly invaded the Maldonado's trust funds. He is guilty of knowing misappropriation.
"We have consistently maintained that a lawyer's subjective intent, whether it be to 'borrow' or to steal, is irrelevant to the determination of the appropriate discipline in a misappropriation case." In re Warhaftig, 106 N.J. 529, 533, 524 A.2d 398 (1987); In re Noonan, 102 N.J. 157, 160, 506 A.2d 722 (1986). Misappropriation "includ[es] not only stealing, but also unauthorized temporary use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom." In re Wilson, 81 N.J. 451, 455 n.1, 409 A.2d 1153 (1979). The record clearly and convincingly establishes that respondent issued trust account checks to himself knowing that he was out of trust and that he was invading trust funds.
Respondent seeks to exculpate himself by stating that he relied on his bookkeeper and office staff. He asserts that he habitually signed trust account checks in blank and left them with office personnel to complete. He attributes the misuse of trust funds in the Maldonado matter, and indeed all of his troubles, to high employee turnover, his medical problems, and extensive travel to his law office in Puerto Rico.
An attorney's duty to preserve clients' funds, however, is nondelegable. Lawyers may not absolve themselves of the misappropriation of client funds by delegating to employees the authority to complete signed checks and then failing to supervise those employees. "The intentional and purposeful avoidance of knowing what is going on in one's trust account will not be deemed a shield against proof of what would otherwise be a 'knowing misappropriation.'" In re Johnson, 105 N.J. 249, 260, 520 A.2d 3 (1987); see also In re Davis, 127 N.J. 118, 130, 603 A.2d 12 (1992) (misappropriations occurring after respondent had been placed on notice about egregious bookkeeping practices constituted knowing misappropriation or were product of "willful" ignorance).
In re Skevin, 104 N.J. 476, 517 A.2d 852 (1986), cert. denied, 481 U.S. 1028, 107 S. Ct. 1954, 95 L. Ed. 2d 526 (1987), is particularly instructive on this issue. Like respondent, Skevin denied that he had knowingly misused funds. Skevin asserted that he had deposited in his trust account almost $1,000,000 in personal funds, a sum that he thought was sufficient to cover personal withdrawals. Id. at 483. He did not maintain a running balance of his own funds in the account. He simply assumed sufficient funds existed for the disbursements. Id. at 485. We reasoned that "each such [disbursement] posed an at least realistic likelihood of invading the accounts of another client since respondent had no way of knowing what the balances were." Ibid. We held that "willful blindness satisfies [the] requirement of knowledge . . . ." Id. at 486 (citation omitted). In so holding, we stated that a knowing misappropriation may be established by "evidence [that] clearly and convincingly demonstrates that [respondent] knew the invasion was a likely result of his conduct . . . ." Ibid.
A willfully blind respondent who "is aware of the highly probable existence of a material fact but does not satisfy himself that it does not in fact exist," ibid., is as culpable as the respondent who knowingly misappropriates. At a minimum, respondent was willfully blind. As we stated in Wilson, supra, "disbarment is the only appropriate discipline [for knowing misappropriation of client funds]." 81 N.J. at 453.
Throughout these proceedings court-appointed pro bono counsel has represented respondent. Respondent's counsel cross-examined the OAE's auditor and ...