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Matter of Banas

May 10, 1996

IN THE MATTER OF RICHARD W. BANAS, AN ATTORNEY AT LAW.


Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Garibaldi, Stein, and Coleman join in the Court's 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 Richard W. Banas (D-41-95)

Argued November 28, 1995 -- Decided May 10, 1996

PER CURIAM

This is an attorney disciplinary case. The Disciplinary Review Board (DRB) concluded that Richard W. Banas of Bloomfield should receive a six-month suspension from the practice of law for a violation of RPC 1:15(b), which states that a lawyer shall promptly deliver to a client or third person any funds that the client or third person is entitled to receive. Two members of the DRB voted to dismiss the complaint.

The factual background of the case follows. Carl Grant retained Richard Banas to represent him in the retrial of a homicide case in which Grant's previous conviction had been reversed. Grant and Banas agreed on a fee of $25,000, but the full fee was never paid. Instead, a codefendant of Grant, Tyrone Rush, paid Banas $10,000.

Prior to the retrial, Grant asked Banas to file a bail motion on his behalf. Banas did not want to undertake additional work without receiving another payment on his fee.

Mrs. Grant, Carl's mother, stated that a friend of Grant was willing to put up his house as collateral provided he received a fee of $10,000. Mrs. Grant apparently wanted Banas to continue as Grant's attorney while also seeking to have him released on bail. To effectuate the latter, Mrs. Grant borrowed $5,000 and paid it to Banas, who gave her a receipt stating that the money was to be returned "if bail not obtained."

According to Mrs. Grant, she believed that her money would be returned if her son were not released on bail. Banas, however, took the position that his only obligation was to see that bail was "set"; Grant's actual release was not required.

The trial court set bail at $100,000. Grant could not post the bail because his friend did not post his house as collateral. Banas applied the $5,000 he received from Mrs. Grant to fees owed to him by Carl Grant.

Mrs. Grant filed an ethics grievance against Banas, contending that he improperly and knowingly retained her $5,000. The District Ethics Committee and the DRB concluded that the $5,000 payment was to get Carl Grant out of jail on bail. By refusing to return that money after the bail hearing, Banas had violated RPC 1.15(b).

The Supreme Court issued an Order to Show Cause why Richard W. Banas should not be disbarred or otherwise disciplined.

HELD: In light of the factual circumstances and respondent's prior good record as a member of the Bar, a reprimand is the appropriate sanction to impose for respondent's violation of RPC 1.15(b) through his failure to return monies paid to him by the mother of his client.

1. The Court is persuaded by clear and convincing evidence that respondent knowingly and improperly retained Mrs. Grant's $5,000 payment as fees. Respondent has agreed to make restitution and must do so within thirty days. (p. 9)

2. Respondent has no history of ethical violations. His failure to clarify the conditions surrounding the payment of the $5,000 appears to be aberrational. Before entering private practice, he served as an Assistant Essex County Prosecutor. In that capacity, he helped develop a Central Judicial Processing System for the courts. (pp. 9-10)

It is Ordered that respondent is hereby REPRIMANDED.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN ...


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