The opinion of the court was delivered by: Poritz, C.j.
Argued September 23, 1997
On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
This matter is before the Court for review pursuant to R. 1:20-16(a) of a decision of the Disciplinary Review Board ("DRB") recommending that respondent, Joel A. Greenberg, be disbarred. Based on information provided by Greenberg and on its own investigation, the Office of Attorney Ethics ("OAE") filed a formal complaint against respondent, alleging violations of Rule of Professional Conduct 8.4(c) ("RPC"), conduct involving dishonesty, fraud, deceit, and misrepresentation. The complaint asserted that, during a sixteen-month period in 1992-1993, respondent fraudulently obtained law firm funds for his own personal use. Before the Special Ethics Master appointed to hear the matter for the District XIV Ethics Committee, Greenberg asserted that he "suffer[ed] from a mental illness which deprived him of the ability to comprehend what he was doing and the will to prevent it." The Special Ethics Master, and later the DRB, found that respondent had not demonstrated "by competent medical proofs that [he] suffered a loss of competency, comprehension or will of a magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful." In re Jacob, 95 N.J. 132, 137 (1984).
We find that Joel A. Greenberg knowingly caused his firm to disburse monies to him that belonged to the firm without the consent of his law partners and that he knowingly misappropriated fees due the firm to his own use. We reaffirm the rule set forth in In re Wilson, 81 N.J. 451 (1979), and extended in In re Siegel, 133 N.J. 162 (1993), that misappropriation of client or law firm funds will almost invariably result in disbarrment. We hold that disbarrment is warranted in this case.
Joel A. Greenberg was licensed to practice law in New Jersey from 1975 until September 22, 1993, when he consented to the temporary suspension of his license. At the time of his suspension, Greenberg was a partner with Horn, Goldberg, Gorny, Daniels, Paarz, Plackter & Weiss ("Horn, Goldberg" or "the firm") in Atlantic City. Greenberg primarily represented health-care providers in medical malpractice actions.
In June 1991, Greenberg received a referral from Rochlin & Settleman, a Maryland law firm, and accepted the representation of Charles and Theresa Harrison in the matter of Harrison v. Cairn. When Greenberg settled the matter for a total of $42,500, he requested two checks from the insurance company, one for $35,000 made payable to the Harrisons and one for $7500 made payable to Greenberg personally. The insurance company refused and, instead, issued two checks for $21,250 payable to both Greenberg and the Harrisons. Rather than depositing the checks in the firm's trust account and issuing a firm check to the Harrisons, Greenberg endorsed the checks and forwarded them to the Harrisons accompanied by a request that they return a check in the amount of $7500 made out to him. When the Harrisons complied, Greenberg kept the fee without the authorization or knowledge of his law firm.
When Rochlin & Settleman subsequently sought a referral fee, Greenberg presented a check request to the firm bookkeeper, dated June 25, 1992, in the amount of $3000 payable to Rochlin & Settleman. On the request form, Greenberg indicated that the check was needed for the "reimbursement of expert fees pursuant to Court Order--Dr. Flynn." In the transmittal letter accompanying the request form, Greenberg explained that the check was for "reimbursement of expert testimony" in the matter of Pasquale v. Schwing.
Thereafter, from August 1992 until August 1993, Greenberg obtained an additional $27,025 in law firm funds for his personal use without the firm's knowledge or consent. The method he used was simple: he submitted a series of false disbursement requests to the firm's bookkeeping department. Respondent would either instruct a secretary that he needed a law firm check or dictate the check request on tape, after which an expense account voucher would be prepared and signed, either by Greenberg himself or by a secretary on his behalf. In support of the check request, Greenberg would also prepare a transmittal letter addressed to the payee. Once Greenberg received the firm checks, he would endorse them and retain the funds for his personal use or deposit them in the corporate checking account of Southern Shore Medical Supply ("SSMS"), an entity incorporated by Greenberg in December 1992. Respondent submitted eight such similarly structured requests in the twelve months preceding and up to August 17, 1993.
Three of the false disbursement requests made by Greenberg were sought as payment to local physicians. On August 31, 1992, Greenberg presented an expense voucher in the amount of $2000 payable to Dr. Denay Marino, along with a transmittal letter explaining that the check constituted payment for a deposition fee; on December 14, 1992, Greenberg submitted a check request in the amount of $2500 payable to Dr. Alan Forman, purportedly in payment for expert testimony; and, on July 23, 1993, Greenberg requested a check in the amount of $1875 payable to Dr. Glen Budnick for expert fees. Greenberg endorsed the Marino and Forman checks by forging the physicians' signatures. Because his wife worked part-time for Dr. Budnick at home, Greenberg had access to the Doctor's business stamp, which he used to endorse the Budnick check without Budnick's or his wife's knowledge or consent. In all three cases, Greenberg kept the funds for his own personal use.
Greenberg also requested a check made out to the bank holding his mortgage. On September 14, 1992, Greenberg requested $2900 payable to Investor Savings, with the submitted purpose of paying the State Division of Taxation in the matter of the estate of his uncle, Stanley Greenberg. Instead, respondent sent the check to Investor Savings to cover three months of mortgage payments on his home.
Greenberg made four additional fraudulent check requests during this period, each for payment to SSMS. At the District Ethics hearing, Greenberg denied that SSMS was "a fictitious corporation" set up for the purpose of laundering the Horn, Goldberg checks. *fn1 He claimed that he incorporated SSMS with his wife and a third person as a legitimate business for the sale of medical supplies to physicians. He conceded, however, that the business was not a client of the firm, was dormant, and that, aside from "minimal transactions" of which there is no proof in the record, "it's [sic] business activity consisted of--of accepting these payments and in turn paying them out" to respondent.
The record discloses that Greenberg established a corporate checking account for SSMS in the spring of 1993, just prior to making his first check request payable to the corporation. By requests dated May 20, May 28, and June 17, 1993, Greenberg received, endorsed, and deposited SSMS checks in the amounts of $1750, $3500, and $12,500, respectively. Though the initial bank statement for the SSMS account is not available, the bank statement for May 28, 1993 through June 30, 1993 shows that the $12,500 check was deposited and that the account balance at that time was $12,821.65. The June 30 statement also shows that Greenberg issued two checks on this balance: one for $3750 payable to himself on June 18, 1993, and one for $9000 payable to Investor Savings on June 22, 1993, noting in the memo portion of the check that it was intended to cover his May, June, and July mortgage payments.
By mid-June, Greenberg had fraudulently obtained $34,525 that belonged to his law firm. Then, on August 17, 1993, he made his final check request payable to SSMS in the amount of $23,500. The transmittal letter indicated that the disbursement was the "final installment" for the purchase by Sawyer Electric, a firm client, of an interest in SSMS. This time William Colavito, the firm's Chief Financial Officer, questioned Greenberg about his request. Respondent explained that the disbursement was to be counted against a $90,000 retainer from Sawyer Electric placed in the Horn, Goldberg business account earlier that year. When pressed on how the transaction could be charged against firm funds, Greenberg said, "If anyone ever found out about this I would be disbarred." Colavito reported the conversation to the firm's managing partner, Jack Plackter, who subsequently met with Greenberg. The firm reviewed respondent's check requests for the prior six months and discovered the three SSMS disbursements with his endorsements, but apparently took no action.
Three weeks later, on September 11, 1993, Greenberg approached friend and attorney Paul D'Amato during a function at respondent's synagogue. The two men retired to the parking lot for privacy where, D'Amato reports, Greenberg began to cry and shake, saying to his friend, "I don't know what I'm doing. You got to help me." D'Amato agreed to help, but Greenberg would not explain what was wrong. D'Amato found Greenberg's wife, who promised to have Greenberg meet D'Amato at his office the following morning.
At D'Amato's office the next day, Greenberg admitted that he had taken law firm funds. He told D'Amato that he could not remember when it started or how much he had taken but did mention an accident case and illegitimate vouchers. When he huddled in a corner crying, D'Amato called another friend and attorney, Ed Goldstein, to help him with respondent. As Greenberg calmed, he said, "[G]et me away from the practice of law. I don't think I know what I'm doing anymore."
Greenberg gave D'Amato permission to call his partners and, later that afternoon, three Horn, Goldberg partners met with Greenberg and D'Amato at D'Amato's office. At that point, however, Greenberg was incoherent and could not discuss the matter. D'Amato also called psychiatrist Dr. Norman S. Chazin to obtain treatment for his friend. Greenberg began meeting with Dr. Chazin the following day. With Greenberg's permission, D'Amato contacted the OAE on September 14, 1993, and the Atlantic County Prosecutor's Office on September 17, 1993. No charges were filed by the firm or the prosecutor. Respondent made full restitution to the firm. On September 22, 1993, he entered into a consent order temporarily suspending his license.
The OAE filed a formal complaint against Greenberg on January 13, 1995. During four days of hearings in November 1995 and January 1996 before a Special Ethics Master, Greenberg presented the testimony of his wife, friends, fellow attorneys, and two expert witnesses, Dr. Chazin and Dr. Gary Michael Glass. The OAE offered the testimony of Dr. Robert Sadoff.
Family, friends, and fellow attorneys testified to Greenberg's reputation in his community and to changes in Greenberg's personality from as early as August 1990 up to August 1993. Many vouched for Greenberg's excellent reputation and unquestioned integrity. He was perceived as an outgoing, friendly man who was known to participate in many community activities, including Margate City Little League and his synagogue.
There was also testimony by Paul D'Amato that, as early as August 1990, Greenberg appeared negative and lethargic and stopped answering telephone calls and interrogatories in a timely manner. Joseph Sayegh, another boyhood friend and attorney, noticed similar changes:
He always was an optimistic person. He always had a sense of humor. He was always kind. He always made a connection with people. . . . And it was gone. . . . I mean this was not a guy having a bad day. . . . There was something wrong with him.
David Goldberg, friend and neighbor, testified that Greenberg, once active in the community, had stopped socializing. A. Michael Barker, a fellow partner, observed that Greenberg began to keep his office door closed, "was withdrawn and . . . there was some despondency." Greenberg's wife testified to difficulties at home during this period.
Dr. Chazin, Greenberg's treating physician and first expert witness, testified that respondent suffered from dysthymia, a chronic, low-grade form of depression, which he attributed to "childhood developmental issues and [a] family history of depression." Dr. Chazin also diagnosed Greenberg with major depression and opined that, due to his condition, Greenberg "did not have the requisite intent to steal from his law firm." Instead, Greenberg's actions constituted a desperate attempt "to keep himself from ego disintegration." In Dr. Chazin's view, Greenberg "was not delusional, . . . did not suffer from hallucinations or show any sign of psychosis[, and] . . . was not 'McNaughten' insane," though he remembered little about his acts of misappropriation and lacked "any conscious appreciation" of the self-destructiveness of his behavior. At the time of the hearing, however, Dr. Chazin reported that Greenberg was fully recovered, unlikely to repeat his antisocial behavior, and ready to return to the practice of law.
Dr. Glass, Greenberg's second expert witness, diagnosed Greenberg with dysthymia and adjustment disorder with depression, or major depression. Dr. Glass agreed with Dr. Chazin that Greenberg did not possess the requisite intent to "knowingly misappropriate or steal" from the firm, explaining his behavior as an unconscious cry for help:
At some level Joel Greenberg was aware that he was doing this because, as I said before, he did it and he behaved. I mean he didn't just take the money and make a paper airplane and throw it out the window. Yet, on the other hand, the behavior was so odd . . . without motivation, without attempt to secrete [sic] his behaviors, without attempt to pursue the behaviors in a way that will get him greater gain . . . .
Dr. Glass agreed that Greenberg was not delusional or "McNaughten" insane, that he knew the difference between right and wrong. However, when asked whether Greenberg lacked "comprehension, competency or will," Dr. Glass responded equivocally:
I'm not sure whether it falls under it, what the right answer is. I believe that he was not functioning with competence and will. The will was for Mr. Greenberg to punish Mr. Greenberg. The will was not to hurt the law firm . . . , not to hurt clients. The will was a cry for help.
Dr. Sadoff, testifying on behalf of the OAE, agreed with Drs. Chazin and Glass that Greenberg suffered from major depression, was not delusional, and was not "McNaughten" insane. With respect to how depression affected Greenberg, Dr. Sadoff differed:
He had a depression. His depression affected him in a number of ways, but, as I indicated, not selectively, not cognitively in the sense that he could not know what he was doing or be aware of the implications of the behavior that he engaged in. He was able to try cases and try them successfully. He knew the outcome. He knew how to go about doing what he had to do. He was active in the community in doing things in other areas of his life. . . . I just don't know of any mental illness that would deprive him of his cognitive functions in this particular area and not globally, not across the board. There's just no such illness.
Dr. Sadoff specifically disagreed with Dr. Glass's comparison between Greenberg's actions and the actions of a driver who, upon arriving home, has no recollection of the decisions made to get there, distinguishing between Greenberg's complicated acts of misappropriation and "the kind of rote, automatic behavior performed on a daily basis that one could dissociate from and be so preoccupied as to not remember." Rejecting the possibility that Greenberg's depression caused selective amnesia or dissociation, Dr. Sadoff concluded that respondent's condition did not deprive him of knowledge of what he was doing or of the ability to control his behavior. Dr. Sadoff agreed, however, that it was unlikely Greenberg would engage in misappropriation again.
At the Conclusion of the hearing, the Special Ethics Master found that Greenberg had "engaged in multiple acts of taking funds" from Horn, Goldberg, "without the authorization or knowledge of members of the firm," resulting in fraudulently obtained disbursements of $27,025 *fn2 used by Greenberg for his own purposes. Based on our decision in Siegel, supra, 133 N.J. at 170, wherein we held that "knowingly misappropriating funds-- whether from a client or from one's partners-- will generally result in disbarrment," the Special Master framed the issue before her as "whether or not Joel Greenberg 'knowingly' misappropriated money from partnership funds . . . , or whether any psychiatric condition existed which precluded his ability to 'knowingly' engage in acts of misappropriation." She found that Greenberg had not demonstrated "the magnitude of illness, impairment of judgment or severity of disability . . . [necessary] to provide mitigation or defense" for his acts of misappropriation and recommended disbarrment.
The DRB, like the Special Master, asked whether Greenberg "knowingly" committed acts of misappropriation, i.e., whether Greenberg "took the funds knowing that they were not his . . . and knowing that the taking was unauthorized." Because Greenberg's experts "focused on motive, as opposed to intent," the DRB relied on testimony that Greenberg was aware he was taking money that was not his, and that his taking was unauthorized by the parties to whom the money belonged. A four-member majority of the Board also recommended disbarrment.
By leave of the Court, the New Jersey State Bar Association ("NJSBA" or "Bar") has participated in this case as amicus curiae. The NJSBA has asked us to re-examine the rule of Wilson, supra--that "generally" where an attorney has knowingly misappropriated clients' monies "disbarrment is the only appropriate discipline." 81 N.J. at 453. In the Bar's view, the Court has consistently applied Wilson as a "strict liability" rule despite language in our decisions suggesting that, in appropriate cases, disbarrment would not be automatically imposed.We acknowledge the correctness of the Bar's observation that, since Wilson, the Court has consistently and unwaveringly disbarred attorneys who knowingly took their clients' funds.
In re Noonan, 102 N.J. 157, 160 (1986); see also In re Hollendonner, 102 N.J. 21, 28-29 (1985) (holding "parallel" between escrow and client funds requires application of Wilson rule in cases involving knowing misuse of escrow funds). "Since this Court announced the bright-line Wilson rule in 1979, 'we have not retreated one bit from the principle that knowing misappropriation . . . will warrant the Wilson sanction of disbarrment,' In re Konopka, 126 N.J. 225, 228 (1991), and have repeatedly rejected opportunities 'to create exceptions to the Wilson rule, even where the misappropriation was the product of severe personal and financial hardship,' In re Warhaftig, 106 N.J. 529, 535 (1987)." In re Roth, 140 N.J. 430, 444 (1995). Although we have recognized that "[t]he Wilson rule is harsh," In re Barlow, 140 N.J. 191, 195 (1995), we remain "convinced that nothing less will be consistent with our view of the devastating effect of misappropriation on the public's confidence in the bar and in this Court," Roth, supra, 140 N.J. at 444 (quoting In re Hahm, 120 N.J. 691, 697 (1990)).
There is nothing clearer to the public, however, than stealing a client's money and nothing worse. Nor is there anything that affects public confidence more--much more than the offense itself--than this Court's treatment of such offenses. Arguments for lenient discipline overlook this effect as well as the overriding importance of maintaining that confidence.
[Wilson, supra, 81 N.J. at 457.]
Because of the harshness of Wilson, and because the sanction of disbarrment in New Jersey is permanent, we have demanded clear and convincing evidence that an attorney has misappropriated funds "knowingly." Roth, supra, 140 N.J. at 444; see Barlow, supra, 140 N.J. at 196 ("Proof of misappropriation, by itself, is insufficient to trigger the harsh penalty of disbarrment. Rather, the evidence must clearly and convincingly prove that respondent misappropriated client funds knowingly."). In each case where there has been an invasion of trust funds, we have carefully considered the particular complex of facts in order to determine whether "the lawyer intended it, knew it, and did it." Konopka, supra, 126 N.J. at 234 (citing In re Librizzi, 117 N.J. 481, 490-91 (1990), In re Gallo, 117 N.J. 365, 371-73 (1989), and In re Simeone, 108 N.J. 515, 521-23 (1987)). Attorneys who have committed "flagrant record-keeping violations but not . . . intentional misappropriation" have been severely disciplined but not disbarred. Id. at 238; see, e.g., In re LaVigne, 146 N.J. 590, 606-10 (1996) (suspending attorney for three years who, inter alia, negligently misappropriated client funds during complex land exchange transaction); In re Chidiac, 120 N.J. 32, 38-39 (1990) (suspending attorney for three years whose negligent bookkeeping resulted in misappropriation of client funds). Thus, the harshness of disbarrment has been ameliorated by the Court's insistence on a high level of proof that the attorney understood on some level what he or she was doing and knowingly carried out a scheme to defraud.
In other cases, we have been unconvinced that attorneys suffering from identifiable compulsive disorders, mental illness, or mental conditions could demonstrate "a loss of competency, comprehension or will of a magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful." Jacob, supra, 95 N.J. at 137; see, e.g., Roth, supra, 140 N.J. at 448 (major depression); In re Davis, 127 N.J. 118, 130-32 (1992) (alcoholism); In re Spina, 121 N.J. 378, 390-91 (1990) (narcissistic personality disorder); In re Steinhoff, 114 N.J. 268, 273-74 (1989) (drug dependency); In re Nitti, 110 N.J. 321, 325-26 (1988) (compulsive gambling); Jacob, supra, 95 N.J. at 136-38 (thyrotoxicosis). In those cases we have independently reviewed the record and determined that the "medical facts" presented did not provide a sufficient basis for "a legal excuse or justification" in mitigation of the respondents' acts of misappropriation. Id. at 137. This result is consonant with the Court's view, clearly expressed in Wilson, that disbarrment would "be almost invariable" in misappropriation cases.
The NJSBA seeks a less rigorous standard. The Bar has suggested that an attorney guilty of knowing misappropriation of a client's funds should not be disbarred if the attorney can show, by clear and convincing evidence, that "an identifiable illness . . . caused substantial impairment of judgment" and that substantial additional mitigating factors unconnected to the illness were present. We have, however, revisited the Wilson rule in the past and have concluded that strict conformity to Wilson is appropriate and necessary. See, e.g., Konopka, supra, 126 N.J. at 231, 236-38 (declining to accept suggestion in Concurring opinion "that there should be exceptions to Wilson 'under special circumstances'"). We are mindful that in 1983 the NJSBA supported permanent disbarrment in cases of knowing misappropriation "'without exception.'" Id. at 236 (quoting New Jersey State Bar Association, Report of Select Committee to Review Standards for Safeguarding Clients' Property 1-2, 6 (1983)). After a careful examination of the Bar's present proposal, we have concluded that it represents a substantial retreat from the standard enunciated in Wilson.
Today, we again reaffirm the rule announced in Wilson and hold that disbarrment is the appropriate sanction in cases where it has been shown, by clear and convincing evidence, that an attorney has knowingly misappropriated client funds. We accept as an inevitable consequence of the application of this rule that rarely will an attorney evade disbarrment in such cases. Public confidence in the "integrity and trustworthiness of lawyers" requires no less. Wilson, supra, 81 N.J. at 456.
Wilson necessarily focused on the trust extended from a client to his or her attorney and the terrible breach of that trust in a case involving the misappropriation of a client's funds. Id. at 454-57. That trust, although buttressed by knowledge of the individual attorney, springs from "faith . . . in the legal profession [and] the bar as an institution." Id. at 455. That trust is destroyed when a lawyer takes monies that belong to a client.
Under our Constitution, the Supreme Court "ha[s] jurisdiction over the admission to the practice of law and the discipline of persons admitted." N.J. Const. art. VI, § 2. par. 3. In furtherance of this constitutional responsibility, the Court has promulgated the Rules of Professional Conduct as the regulatory framework for attorney discipline in appropriate cases. The RPCs serve as a road map for the conduct of attorneys to guide them in their relationships with their clients, other attorneys, the courts, and the public. The rules deal comprehensively with attorneys' obligations to their clients because that is what the practice of law is about--the representation of persons and entities in need of legal services. The Wilson rule reflects the application of the most exacting ethical standards to the relationship between attorneys and their clients.
The relationship of attorneys to one another is also subject to the Court's disciplinary oversight. Lawyers who join together to practice, as a partnership or professional corporation, convey a "message" to the public. In re Weiss, Healey & Rea, 109 N.J. 246, 251-52 (1988).
Such partnership implies the full financial and professional responsibility of a law firm that has pooled its resources of intellect and capital to serve a general clientele. . . . The public, we believe, infers that the collective professional, ethical, and financial responsibility of a partnership-in-fact bespeaks the "kind and caliber of legal services rendered."
[Id. at 252 (citation and footnote omitted).]
Lawyers who practice together are bound by those strictures generally applicable to individual lawyers and by rules specifically applicable to law firms.
Underlying each of the Rules that affect law firm organization and the representation of clients by lawyers practicing together is the interest in protecting clients, past, present, and prospective, and concern about the public perception of the bar. The RPCs control, among other things, the ability of lawyers to form partnerships with non-lawyers, RPC 5.4, law firm advertising, including firm names, RPC 7.1-.5, and the disqualification of law firms based upon the conflicts of individual lawyers in the firm, RPC 1:10. The rules are designed to protect clients by insuring that non-lawyers are not practicing law, that clients and potential clients receive accurate information about law firms, and that confidentiality is maintained. Law firms are the vehicles through which clients retain individual attorneys and the cultures in which those individual attorneys function once retained. It is the firm's reputation--the sum of the reputations of the lawyers practicing together--that attracts clients and that suggests the lawyers in the firm can be trusted with the clients' most difficult problems and with the clients' assets. Lawyers who betray their partners betray that trust.
Most important, the Court has recognized "no ethical distinction between a lawyer who for personal gain willfully defrauds a client and one who for the same untoward purpose defrauds his or her partners." Siegel, supra, 133 N.J. at 167. Our perception that such acts of theft are morally equivalent does not derive from the relationships between attorneys and their clients or attorneys and their partners but, rather, from our belief that "misappropriation from the latter is as wrong as from the former." Id. at 170. Moreover, it is not clear that a distinction between client funds and firm funds is readily made by the average person. The general public is unlikely to know that attorneys are required to maintain separate accounts for client and firm funds, RPC 1.15, and may fear that the misappropriation of firm funds is synonymous with the misappropriation of client funds. It is this threat to public confidence in the integrity and trustworthiness of the bar that motivated the Court in Wilson.
The Wilson rule, as described in Siegel, supra, applies in this case: "In the absence of compelling mitigating factors justifying a lesser sanction, which will occur quite rarely, misappropriation of firm funds will warrant disbarrment." 133 N.J. at 167-68 (citations omitted).
Respondent contends that the Wilson rule should not apply to him because his acts of misappropriation pre-dated Siegel, which was decided on July 23, 1993. Id. at 162. The record, however, does not support his claim.
On July 23, 1993, the day Siegel was filed, respondent requested and obtained a check made payable to Dr. Budnick. In the days following, when the New Jersey legal periodicals were circulating and critiquing the Siegel opinion, see, e.g., Supreme Court; In the Matter of Steven G. Siegel, an Attorney-at-Law, State Digests, N.J.L.J., July 26, 1993, 73-76; Court Says Thefts From Firm Call for Disbarrment, N.J.L.J., August 9, 1993, 5, 35, respondent took no steps to return funds previously taken. Rather, on August 17, 1993, he requested an additional $23,500 in the name of Sawyer Electric to be drawn on firm funds. When questioned by the firm's Chief Financial Officer about his request, respondent stated, "If anyone found out about this I would be disbarred." We cannot but conclude that respondent was well aware of the post-Siegel consequences of his final request. Even then, he did not conform his conduct to the requirements of law or of the ethics rules.
In any case, prior to this Court's decision in Siegel, it was clear that acts of theft often carried the sanction of disbarrment. See, e.g., Spina, 121 N.J. at 390 (disbarring attorney who pled guilty to federal misdemeanor of taking property belonging to employer, including false reimbursements and checks intended for employer); In re Lunetta, 118 N.J. 443, 446-50 (1989) (disbarring attorney who, for his participation in conspiracy to receive, sell and dispose of stolen securities, realized profit of $20,000 to $25,000); In re Surgent, 104 N.J. 566, 567-69 (1986) (disbarring attorney who was guilty of, inter alia, conspiracy to commit theft by deception, stock fraud, and sale of unregistered securities); In re Alosio, 99 N.J. 84, 90 (1985) (disbarring attorney who engaged in conduct violating Disciplinary Rule 1-102(A)(3), (4), predecessor to RPC 8.4(b), (c), and thereby "demonstrate[d] his unfitness to remain as a member of the bar"). The Siegel Court rejected a similar argument "that respondent's lack of notice compels a lesser sanction," Siegel, supra, 133 N.J. at 168, and we agree. The Wilson/Siegel rule is appropriately applied in respondent's case.
Although Greenberg admits that, over a period of sixteen months, he obtained $27,025 in Horn, Goldberg funds, retained the $7500 Harrison personal injury fee, and used these funds for his own purposes without the firm's knowledge or consent, he argues that he is not guilty of knowing misappropriation. Rather, he asserts that he has satisfied the Jacob standard--that he was suffering from a mental illness which caused him to suffer a "loss of competency, comprehension or will"--through expert testimony proving that his motive was to hurt himself not his firm, that he was out of touch with reality, and that he had no conscious awareness of his actions. At its core, respondent's argument is framed both as ...