The opinion of the court was delivered by: Per Curiam
On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
This disciplinary action concerns two matters. The first arises out of the purchase and sale of a two-family house in Jersey City. In connection with those transactions, respondent, Patrick DiMartini, is charged with violating the Rules of Professional Conduct (RPC), sections 1.2 (scope of representation), 1.4 (communication with client), 1.7 (conflict of interest), 1.15 (safekeeping property), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The second matter concerns an incident in which respondent is charged with failing to safeguard client funds, in violation of RPC 1.15.Finding ethics infractions in both matters, the District Ethics Committee (DEC) recommended disbarrment. The Disciplinary Review Board (DRB) recommended a two-year suspension.
Our responsibility in attorney disciplinary matters is to conduct an independent review of the record, R. 1:20-16(c), and to determine whether the charges have been proved by clear and convincing evidence. On two critical issues, our independent review of this record leads us to different factual Conclusions from those of the DRB. Although we find respondent guilty of ethical infractions, we conclude that the appropriate discipline is a three-month suspension.
Respondent was admitted to the bar in 1958. Until the filing of the complaints in these matters, respondent had not been charged with any ethics infractions.
For approximately a quarter of a century, respondent was the "family attorney" for the Perretta family. The grievant, Krystine Kuty, was married to John Perretta from 1973 until their divorce in 1993. Kuty met Perretta when she worked briefly as a temporary secretary in respondent's office. Respondent served as the best man at Perretta and Kuty's wedding. He visited them as they moved about the nation, and is the godfather to one of their children.
The matter at issue concerns respondent's representation of Kuty, Perretta, and Perretta's sister, Carol Perretta Pollack. On the factual question whether respondent acknowledged a series of forged signatures, the DEC and DRB disagreed. The DEC concluded that respondent's acknowledgment of the signatures on those documents was proper, but the DRB concluded from its review of the record that the signatures were forgeries. Like the DEC, we conclude that Kuty's signatures on the documents were not forged and that respondent did not commit an impropriety in acknowledging the signatures on those documents. Furthermore, unlike both the DEC and DRB, we find that the record falls far short of establishing clear and convincing proof that respondent attempted to deceive the Internal Revenue Service (IRS).
In 1972, respondent represented Pollack in the purchase of a two-family dwelling for approximately $75,000. Although Pollack was the title owner, she was to hold title "in trust" for Perretta. No documents, however, indicated that Perretta held any ownership interest.
Also in 1972, while Kuty was working as a temporary secretary for respondent, she met Perretta. Perretta and Kuty were married the following year on February 16, 1973.
In March 1988, Perretta and Pollack decided to sell the property to Grace and Zutico Dy. Pollack and her husband transferred title to Kuty, consistent with the original arrangement with Perretta. Respondent testified that the transfer of the property from the Pollacks to the Dys was structured to transfer responsibility for any capital gains taxes from the Pollacks to Perretta, the "true" owner of the property. Thus, respondent designed the transactions so that the Pollacks would realize no profit from the sale of the property and that Perretta and Kuty would incur any capital gain. Because of Perretta's poor credit rating, due in part to the entry of judgments against him, title was placed in Kuty alone, rather than in Kuty and Perretta jointly. Kuty claims that she was unaware of the transaction. Respondent acknowledges that Kuty was not present at the closing. The closing documents stated that Kuty paid approximately $73,000 for the property, about the same amount as Pollack had paid for the property sixteen years earlier. No money actually changed hands.
Respondent represented all parties despite the conflict of interest inherent in representing both sides in a property closing. He neither prepared a written disclosure of the conflict, nor obtained written waivers from any of the parties.
On March 31, 1988, Perretta and Kuty signed a contract to sell the property to the Dys for $170,000. Although Kuty's father apparently witnessed their signatures, Kuty questioned the signature of her father. No expert testimony corroborated her doubts. At the time of the DEC hearing, Kuty's father was dead. Consequently, the record does not contain his testimony.
In June 1988, Kuty transferred title to Mr. and Mrs. Dy. Kuty testified that she was unaware of that transaction as well, and that she was not present at the closing. She further claims that respondent did not discuss the transactions with her. Respondent acknowledged that he spoke only with Perretta. He assumed that as the ...