Chief Justice Wilentz and Justices Handler, Pollock, Garibaldi, Stein, and Coleman join in the Order of the Court. Justice O'hern has filed a separate Dissenting 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 John L. Downer. Jr., an Attorney at Law (D-72-95)
Argued February 14, 1996 -- Decided April 19, 1996
[Note: The Supreme Court Disposition in this matter was by way of an Order of the Court. Justice O'Hern has filed a separate Dissenting opinion. The following statement of the case is drawn from the Decision of the Disciplinary Review Board, which is also attached.]
John L. Downer, Jr., was admitted to the Bar of New Jersey in 1985. He maintained an office in Summit. A formal ethics complaint was filed against Downer, charging him with misappropriation. The complaint had four counts. It was heard by a Special Ethics Master, who concluded that Downer's actions required the imposition of public discipline. The first two counts were the most critical to the resolution of the matter.
1. Count One. Downer became an insurance title agent for Chicago Title Insurance Company in July 1987. Between November 1987 and March 28, 1988, Downer collected title insurance premiums in twenty real estate transactions. In none of the matters did Downer forward Chicago Title its portion of the premiums (slightly over $4,000). Downer also failed to issue the corresponding title insurance policies. When Chicago Title learned of Downer's actions, his agency contract was terminated.
Downer admitted that he had failed to forward the premiums to Chicago Title. He also admitted that he used Chicago Title's money for purposes other than those for which they were intended. He denied knowingly misappropriating the funds.
2. Count Two. On March 28, 1988, Downer represented Barbra Kohl, the grievant, in the purchase of a house from G. Hewitt Meade. Downer got into the case just before the real estate closing took place. Downer deposited the $220,162.50from the sale into his agency escrow account. Between March 28 and June 17, 1988, Downer wrote a series of personal checks against the monies deposited.
Downer alleged that the misappropriation of the real estate funds was the result of his careless recordkeeping and was not a "knowing"misappropriation. Evidence before the Special Ethics Master established that Downer knew the balance in his escrow account.
The Special Ethics Master and a seven-member majority of the Disciplinary Review Board (DRB) concluded that Downer should be disbarred for the knowing misappropriation of escrow and trust account funds. Two members of the DRB voted for a two-year suspension on the basis of medical evidence that suggested Downer was mentally impaired at the time of the events in question.
HELD: The report of the Disciplinary Review Board is adopted and John L. Downer, Jr., is disbarred for the knowing misappropriation of escrow and trust account funds entrusted to him.
O'HERN,J., Dissenting, is of the view that disbarment is not called for in this matter. The record reflects a lack of venality on the part of Downer and his inexperience at the time of his misconduct. In addition, Downer urged that the Court take into consideration the adverse effects of his long-term substance abuse problem. Justice O'Hern believes that with proper guidance and support, respondent could serve the public as a member of the bar. He would suspend Downer indefinitely with leave to apply for reinstatement at such time as Downer would be able to demonstrate his fitness to resume the practice of law.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN, and COLEMAN join in the Order of the Court. JUSTICE O'HERN has filed a separate Dissenting opinion.
The Disciplinary Review Board having filed a report with the Court on October 25, 1995, recommending that JOHN L. DOWNER, JR., of SUMMIT, who was admitted to the bar of this State in 1985, and who was thereafter temporarily suspended from the practice of law by Order of this Court dated September 7, 1994, and who remains suspended at this time, be disbarred for his knowing misappropriation of escrow funds;
And respondent having been ordered to show cause why he should not be disbarred or otherwise disciplined;
And good cause appearing;
It is ORDERED that the findings of the Disciplinary Review Board are hereby adopted and respondent is disbarred, effective immediately, and that his name be stricken from the roll of attorneys of this State; and it is further
ORDERED that the Decision and Recommendation of the Disciplinary Review Board, together with this Order and the full record of the matter, be added as a permanent part of the file of said JOHN L. DOWNER, JR., as an attorney at law of the State of New Jersey; and it is further
ORDERED that all funds, if any, currently existing in any New Jersey financial institution maintained by JOHN L. DOWNER, JR., pursuant to Rule 1:21-6 be restrained from disbursement except on application to this Court, for good cause shown, and shall be transferred by the financial institution to the Clerk of the Superior Court, who is directed to deposit the funds in the Superior Court Trust Fund, pending further Order of this Court; and it is further
ORDERED that JOHN L. DOWNER, JR., comply with Rule 1:20-20 dealing with disbarred attorneys; and it is further
ORDERED that JOHN L. DOWNER, JR., reimburse the Disciplinary Oversight Committee for appropriate administrative costs.
WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at Trenton, this 19th day of April, 1996.
SUPREME COURT OF NEW JERSEY
Disciplinary Review Board
Disciplinary Review Board
John McGill, III, appeared on behalf of the Office of ...