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In re Burger an Attorney at Law

Supreme Court of New Jersey

February 12, 2018

IN THE MATTER OF HOWARD J. BURGER AN ATTORNEY AT LAW

          Argued: November 16, 2017

          District Docket Nos. XIV-2015-0029E and XIV-2015-0209E

          Reid A. Adler appeared on behalf of the Office of Attorney Ethics.

          Petar Kuridza appeared on behalf of respondent.

          Ellen A. Brodsky Chief Counsel

          DECISION

         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was before us on a recommendation for a reprimand filed by the District XII Ethics Committee (DEC). The two-count formal ethics complaint charged respondent with violations of RPC 1.15(a) (negligent misappropriation of client trust funds) and RPC 1.15(d) (failure to comply with recordkeeping requirements) (count one); and RPC 1.2(d) (counseling or assisting a client in illegal or fraudulent conduct), RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice) (count two).

         The Office of Attorney Ethics (OAE) agrees that a reprimand is appropriate for the totality of respondent's misconduct. Respondent asserts that insufficient evidence exists for us to find him guilty of the charges set forth in count two, and, thus, requests the imposition of an admonition. For the reasons detailed below, we determine to impose a reprimand.

         Respondent earned admission to the New York bar in 1970 and the New Jersey bar in 1974. During the relevant time frame, he maintained an office for the practice of law in Kenilworth, New Jersey. He has no prior discipline.

         Count One

         During the relevant time frame, respondent was a solo practitioner, maintaining both his attorney business and attorney trust accounts at Wells Fargo Bank (Wells Fargo). On April 22, 2013, the OAE randomly selected respondent for an audit. The audit revealed the following recordkeeping deficiencies: schedule of client ledger accounts not prepared and not reconciled monthly; business account image-processed checks not in compliance with Court Order; improper electronic transfers from attorney trust account; and deceptive use of "& Associates" in law firm name.

         The OAE directed respondent to rectify these recordkeeping deficiencies, and, on May 13, 2013, respondent represented to the OAE that he had done so. Subsequently, the OAE scheduled a demand audit for July 22, 2015. During that demand audit, the OAE discovered that respondent had failed to correct the prior recordkeeping deficiencies, as he had represented, and had committed additional recordkeeping violations.[1] Specifically, respondent failed to obtain and retain copies of the front and back of all cancelled attorney business account checks, and had improperly maintained a balance of $5, 013.70 in his "Burger v. Falk" attorney trust sub-account. Under the supervision of the OAE, respondent corrected all of the recordkeeping deficiencies and disbursed the funds from the "Burger v. Falk" sub-account, via three attorney trust account checks issued on March 14, 2016.

         The OAE audits of respondent's practice revealed additional misconduct. Specifically, in 2014, respondent represented John Frederick, the buyer in a real estate transaction concerning property in Monroe, New Jersey. Respondent also served as the settlement agent for the transaction, which closed on October 24, 2014. To consummate the transaction, the seller agreed to provide $2, 400 to pay unanticipated condominium association fees due at closing. Respondent, however, failed to memorialize those association fees on the HUD-1 for the transaction, and failed to collect the funds to satisfy those fees. Nonetheless, respondent closed the transaction and disbursed funds, as set forth on the HUD-1, creating a $2, 400 shortage in his attorney trust account, which was not rectified until September 9, 2015, almost one year later. That shortage invaded trust funds that he was holding in behalf of at least eight other clients. Moreover, respondent did not recognize the $2, 400 shortage until the OAE alerted him, at which point he deposited $2, 400 of his personal funds into his attorney trust account.

         Count Two

         On February 17, 2012, Keith Gorda retained respondent to represent him in connection with a matter involving the estate of his aunt, Bertha Gorda. Keith sought to recoup, on behalf of the estate, funds that he alleged his cousin and co-executor, Dr. Robert Irving, had misappropriated while serving as the legal guardian of Bertha, prior to her death on January 19, 2011. In her will, Bertha had named Keith and Irving as co-executors of her estate. Keith and Irving were also heirs to the estate, which was worth more than $217, 000. Respondent was not retained to represent Keith in connection with his administration of the estate; indeed, Keith had retained another attorney, Robert Weinberg, in that role. Respondent's role was limited to an action to recoup the estate funds that Irving had allegedly misspent in connection with his administration of the guardianship of Bertha.

         On March 9, 2012, on respondent's advice, Keith opened a new savings account for Bertha's estate, at Wells Fargo, intending that both he and Irving would be co-signatories, and that future disbursements in behalf of the estate would require both of their signatures. Three days later, Keith transferred $187, 378.01 from the original estate account to the new estate savings account, leaving $30, 000 in the original account "in case bills had to be paid" by Irving.

         In an April 12, 2012 letter, attorney Gerard C. Tamburino informed respondent that he represented Irving, who had disbursed a $5, 000 retainer fee to Tamburino and respondent, totaling $10, 000, from the original estate account. Tamburino further asserted that Keith's transfer of the $187, 37 8.01 in estate funds had been accomplished without Irving's consent and demanded the return of those funds to the original estate account.

         On April 17, 2012, respondent replied to Tamburino's letter, confirming that Keith had transferred the estate funds at his direction, inviting Irving to join the account as a cosignatory, and representing that "[i]n the interim, no funds will be dispersed [sic] from either account. I suggest you have Dr. Irving contact Mr. Gorda with regard to arranging for Dr. Irving's name to be added to the account with the understanding that no check can be cashed without both signatures." During the ethics hearing, Tamburino testified that he and Irving had relied on respondent's written representation that Keith would disburse no estate funds without either Irving's prior consent or a court order.

         By letter dated May 22, 2012, respondent asked Tamburino to refund to the estate the $5, 000 retainer fee that Irving had paid. Respondent represented that he would follow suit after Tamburino remitted his fee. In the letter, respondent asserted that the $10, 000 in retainer fees should not have been disbursed from the estate account without Keith's prior approval.

         The parties were unable to settle their differences. Accordingly, on August 28, 2012, respondent filed a complaint against Irving, in behalf of Keith, in the Superior Court of New Jersey, Union County, Chancery Division, alleging that Irving ...


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