On an Order to show cause why respondent should not be disciplined.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.
(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 MICHAEL D. KASSON, An Attorney at Law (D-129-94)
Argued June 20, 1995 -- Decided July 28, 1995
In November 1992, a Judge of the Superior Court advised the District IV Ethics Committee (DEC) that the court was unable to contact Michael D. Kasson, Esq., at his office in Pitman, New Jersey, to discuss his civil cases in Camden County. An investigator went to the address set forth on Kasson's letterhead as the New Jersey office of Spencer Wertheimer, a Pennsylvania attorney. The investigator attempted to locate the office but was unable to find it or an office under the name of either Michael B. Kasson or Spencer Wertheimer. The rental agent for the building informed the investigator that although rent was being paid, the agent had never seen anyone using the property as an office.
Kasson was charged in a formal ethics complaint with failure to maintain a bona fide office and failure to maintain required trust and business accounts. At the DEC hearing, Kasson was unable to tell the hearing panel how to get to the Pitman office and was unable to describe the building in which the office was located. Kasson testified that he had been in an automobile accident in August 1992 and that thereafter he had been unable to travel to the Pitman office. Kasson acknowledged that after October 1992, a paralegal who had been staffing the office had stopped working due to family illness. Kasson stated that Wertheimer sent an employee to the office every other week to pick up the mail. Kasson left Wertheimer's employ in March 1993.
The DEC unanimously found that Kasson had failed to maintain a bona fide office and had failed to maintain trust and business accounts.
In its review, the DRB agreed that there were record-keeping violations but that the infraction did not rise to a level requiring discipline. A majority of the DRB did find a violation of the bona fide office rule, although the DRB noted that Kasson was placed in a difficult position by his employer in respect of the Pitman office.
HELD: Michael D. Kasson is reprimanded for his failure to maintain a bona fide office in New Jersey. Ethical standards requiring that attorneys maintain a bona fide office in New Jersey apply to both the attorney-employer and the attorney-employee.
1. The bona fide office rule requires more than an occasional attendance in a bona fide office by an attorney and more than an answering service unrelated to a place where business is conducted. The rule requires a responsible person at the office to answer questions posed by courts, clients, or adversaries so that accurate information about the attorney's whereabouts and competent advice from the attorney can be obtained within a reasonable period of time. Kasson's Pitman office did not meet those requirements. There was no attorney or responsible person acting on the attorney's behalf who could be reached in person or by telephone during normal business hours. The frustration of a Judge's attempt to schedule trial matters when confronted with this situation cannot be tolerated. (pp. 3-5)
2. Kasson argued that he should not be disciplined because he was simply Wertheimer's employee and, as such, had no control over the office. A New Jersey attorney, by reason of such an employment situation, is, nonetheless, responsible to conform to applicable ethical standards. (pp. 5-6)
3. Coincident with the recognition of the right to practice under the name of the non-resident firm is the corresponding burden to ensure that employees of the firm licensed to practice in New Jersey shall not be made unable to comply with the ethical requirements for practicing law in New Jersey. Consequently, although Kasson should be reprimanded for his failure to maintain a bona fide office for the practice of law in New Jersey, his employer should not escape responsibility, having created the conditions that placed Kasson in this situation. Thus, the administrative costs of the appeal will be assessed against Kasson's employer, Spencer Wertheimer. Because Wertheimer has not been heard in this matter, he is given sixty days to apply to the Court to be relieved of these conditions by showing that he was not responsible for the failure to maintain a bona fide office. (pp. 6-7)
4. In future disciplinary matters concerning the failure to maintain a bona fide office in New Jersey, notice of such potential responsibility shall be given to employers who have the managerial responsibility to ...