IN THE MATTER OF FRANK N. TOBOLSKY AN ATTORNEY AT LAW
Argued: November 16, 2017
HoeChin Kim appeared on behalf of the Office of Attorney
A. Brodsky Chief Counsel.
waived appearance for oral argument.
C. Frost, Chair
Honorable Chief Justice and Associate Justices of the Supreme
Court of New Jersey.
matter was before us on a recommendation for disbarment,
filed by the District IV Ethics Committee (DEC), based on
respondent's knowing misappropriation of $32, 500 in
escrow funds, a violation of the principle established in
In re Hollendonner, 102 N.J. 21
(1985). The DEC rejected respondent's defense,
under In re Jacob, 95 N.J. 132 (1984), based on his
gambling addiction and depression.
reasons set forth below, we adopt the DEC'S finding on
the Jacob defense and, thus, recommend
was admitted to the New Jersey and Pennsylvania bars in 1987.
He was admitted to the Florida bar in 1988. At the relevant
times, he maintained an office for the practice of law in
Merchantville and Philadelphia.
respondent has no disciplinary history, he is ineligible to
practice law in all three states due to his failure to comply
with mandatory continuing legal education requirements. In
New Jersey, respondent also has been ineligible to practice
since September 2016, based on his failure to pay his annual
registration fee to the Lawyers' Fund for Client
single-count formal ethics complaint, dated July 22, 2014,
the Office of Attorney Ethics (OAE) charged respondent with
knowing misappropriation of $32, 500 in escrow funds. In his
answer, respondent admitted every factual allegation.
February 16, 2006, grievants (siblings Andrew Ross, Jr. and
Zulaikha Nelson) entered into an agreement of sale with
Taylor woods, LLC, regarding the latter's purchase of the
formers" Winslow Township property. The agreement is not
a part of the record.
several amendments, the closing date was extended to October
31, 2012, Respondent had undertaken the representation of
Ross and Nelson in the summer of 2011 and negotiated the
final two amendments to the agreement of sale.
closing did not take place until November 7, 2012. A few days
earlier, respondent learned that his clients might have owed
a brokerage commission to Candid Realty, Inc. (Candid
Realty). Consequently, the parties and the title company
agreed that respondent would hold $32, 500 of the proceeds in
escrow, in his trust account, pending resolution of the
brokerage commission issue.
November 7, 2012, the title company issued a $32, 500 check
to "Frank N. Tobolsky, Esquire Attorney Trust
Account," containing the notation "Escrow of Real
Estate Commission." Respondent deposited the check in
his attorney trust account the next day.
March 1, 2013, respondent's trust account balance was $5.
A March 29, 2013 maintenance fee zeroed out the
trust account. Respondent had depleted the $32, 500 in escrow
funds by removing $45, 580 from the trust account between
November 30, 2012 and January 10, 2013.
expended the escrow funds by transferring $10, 000 from his
trust account to his business account, on November 30, 2012;
$34, 500 in December 2012 (via eleven transfers in even
dollar amounts); and $700 in January 2013 (plus a $380 cash
withdrawal). Prior to each disbursement, respondent neither
requested or obtained permission from Candid Realty or his
clients to use the $32, 500 in escrow funds.
March 15, 2013, the parties to the real estate transaction
authorized the disbursement of $12, 333.33 in escrow funds to
Candid Realty, in satisfaction of the commission dispute. The
remaining $21, 166.67 was to be disbursed as follows: $5,
839.52 each to Ross and Nelson (for a total of $11, 679.04),
representing their shares of the proceeds, and $8, 487.63 to
respondent, representing his fees and expenses. By this
point, however, the trust account balance was $5.
did not disburse any funds until April 30, 2013, when he
issued a $12, 333.33 personal bank account check to Candid
Realty's attorney's trust account. On May 7, 2013, he
issued separate personal bank account checks to Ross and
Melson, each in the amount of $5, 839.41.
on the above facts, the OAE charged respondent with knowingly
misappropriating "funds entrusted to his care"
(RPC 1.15(a) and Wilson and
Hollendonner), failing to keep separate funds in his
possession that both he, as lawyer, and another person claim
interests (RPC 1.15(c)), and engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation
(RPC 8.4(c)). Despite respondent's admission of
the factual allegations in the complaint, he denied the
specific RPC Charges.
answer, respondent asserted that he is a compulsive gambler,
who also suffers from depression and anxiety, all causing him
to be "literally . . . 'out of' [his]
mind.'" Consequently, he "often did not know or
appreciate the consequences of [his] actions." He
described his mental illness as "crippling" and
"debilitating" and asserted that the allegations
against him were "inextricably linked" to his
"diminished capacity," stress, duress, and
"mental defects and incapacities."
addition to respondent's gambling addiction, depression,
and anxiety, the answer identified eleven mitigating factors,
including, but not limited to, his admission of guilt and t-
rehabilitation. Based on these factors, respondent seeks
discipline "less punitive" than disbarment, such as
a censure. Alternatively, he "beg[s]" permission to
resign from the bar.
light of respondent's admission to the facts alleged in
.the ethics complaint, the hearing was limited to the issue
of respondent's assertion of the Jacob defense.
Only respondent testified. Neither the OAE's expert,
Daniel P. Greenfield, M.D., M.P.H., M.S., nor
respondent's expert, Frank M. Dattilio, Ph.D., testified.
Rather, counsel for the parties agreed that their reports
"could be considered by the hearing panel without the
need for testimony."
who was born in October 1961, testified that his introduction
to gambling occurred at age six, when his father took him to
the race track. At age nine or ten, respondent's father
introduced him to football pools. Respondent invariably lost
each week, resulting in "an awful feeling," which
he now recognizes was depression. At age eleven,
'respondent attended overnight camp where he and other
campers played poker after "lights out."
middle school, respondent was stripped of an unidentified
award when the school administration learned that he had been
distributing football pools. In high school, he and his
father attended horse races all along the east coast.
Respondent even gambled in Puerto Rico casinos, despite being
. underage, because his grandfather was able to gain him
funded his gambling with his allowance and earnings from his
respondent began dating, he took his dates to the race track,
describing the experience as "the best of both
worlds." His senior paper was on the subject of
gambling continued through college. He worked with a
"dormitory bookie," gambling his earnings from a
campus job. By this point, respondent was subject to
"awful mood swings" due to his gambling. When two
of his girlfriends demanded that he choose between them or
gambling, respondent chose gambling.
the time and energy that respondent devoted to gambling, he
managed to do well academically. In the fall of 1984,
respondent entered the University of Pennsylvania Law School,
where he found a professional bookie. He was now gambling
"very large amounts" and still losing. Respondent
considered suicide, but called Gamblers Anonymous (GA)
instead, in November 1984. He described GA as "a
spent the next twenty-two years free of gambling and living a
healthy lifestyle. He attended GA meetings regularly, had a
sponsor and sponsored other GA members, held offices, and
worked on his defects.
graduation from law school, in 1987, respondent became an
associate attorney at a large national law firm, where he
worked in the field of commercial real estate. In 1988,
respondent was married for six months, in 1992, he re-married
and, ultimately, had two children.
marriages, respondent suffered from depression, but did not
seek medical treatment. He did, however, attend GA meetings
regularly. Sometime in 1996 or 1997, respondent was
"physically and emotionally exhausted." He had
started his own law practice and was the sole financial
support for his family. He received "little
affection" and "felt like ... an ATM and gerbil on
the wheel, just work, work, work, work." The obsessive
thoughts returned, as did "some" suicidal ideation.
the recommendation of a GA fellow, respondent sought
treatment with psychiatrist Michael Shore, M.D., who
prescribed an antidepressant, which he continued to take for
two or three years. Although the drug helped respondent's
depression, he felt lethargic and lacked ambition. Thus,
respondent found another doctor, Edwin Castillo, M.D., who
treated him for the next six or seven years.
under Dr. Castillo's care, respondent was prescribed a
number of different drugs to treat depression and anxiety.
Yet, respondent testified, he "never felt good." He
was "down" and "flat," and the
anti-anxiety medication either did not help or, if the dosage
were increased, rendered him "almost catatonic."
Similarly, his depression "never went away."
continued to maintain his law practice while under Dr.
Castillo's care. By 2005 or 2006, however, respondent
sensed that the real estate economy was declining. His'
marriage ended in the winter of 2006. He also felt
overwhelmed by the knowledge that he would not be able to pay
for his children's college education. He decided to
invest in a few stocks to raise the funds, and the stocks did
well. His gambling compulsion resurfaced, and he became
involved in day trading. During this time, respondent's
former wife was denying him visitation with their children.
or 2007, respondent returned to GA, saw a therapist, and had
his medication changed. He was able to maintain a ninety-day
period of ...