IN THE MATTER OF MICHAEL R. SPECK AN ATTORNEY AT LAW
Argued: November 16, 2017
District Docket No. XIV-2013-0658E
R. Fonseca-Romen appeared on behalf of the Office of Attorney
M. Lomurro appeared on behalf of respondent.
A. Brodsky Chief Counsel
C. Frost, Chair
Honorable Chief Justice and Associate Justices of the Supreme
Court of New Jersey.
matter was before us on a recommendation for an admonition,
which we decided to treat as a recommendation for greater
discipline, in accordance with R. 1:20-15(f) (4) . The formal
ethics complaint charged respondent with violations of
RFC 1.15(a) and the principles of In re
Wilson, 81 N.J. 451 (1979) (knowing misappropriation of
client trust funds); RFC 1.15(d) (failure to comply
with the recordkeeping requirements of R. 1:21-6);
RPC 7.1 and RFC 7.5 (false or misleading
letterhead); and RPC 8.4(c) (conduct involving
dishonesty, fraud, deceit or misrepresentation).
Office of Attorney Ethics (OAE) recommends respondent's
disbarment. Respondent asserts that an admonition is
sufficient discipline for his misconduct. For the reasons
detailed below, we determine to impose a reprimand.
earned admission to the New Jersey bar in 1987. He is
currently engaged in the practice of law in Freehold, New
Jersey. During the relevant time frame, he practiced in
Iselin, New Jersey.
and Keith Burns, Esq. were best friends, who enjoyed a
relationship forged in the 1990s, during their hectic,
overlapping New Jersey municipal court practices. Respondent
fondly described their friendship, recounting their daily
telephone conversations; parallel interests, including golf,
baseball, and gambling; and joint family vacations. Burns was
both a certified civil and certified matrimonial attorney,
and focused his practice primarily on divorce cases.
multiple periods between 1996 and 2008, respondent worked as
an associate in three different "incarnations" of
firms managed by Burns. In 2008, however, respondent joined
the law firm of Garces & Grabler, as an associate, where
he remained before rejoining Burns, claiming that he and
Burns had formed a partnership, effective May 31, 2011.
Respondent testified that, for his entire legal career prior
to joining Burns as a partner, he had been an associate, and,
thus, had never been in charge of recordkeeping, trust
accounts, or the administration of a law firm.
the relevant time frame, Burns was the sole attorney and
principal of Burns Law Office, LLC, (Burns Law) located in
Iselin, which he had formed in 2006. Burns had only one
steady employee, Suzi McMillon, who served as his office
manager and paralegal. McMillon originally had worked for
Burns in 1995, moved to Mississippi in 1997, and then
returned to Burns' employ from 2005 until Burns' 2011
death. McMillon handled law office finances and operations,
drafted legal documents, and even administered the personal
finances of Burns and his wife, Angela Burns (Angela).
McMillon collected fees from clients, made all deposits and
disbursements, paid all of the firm's obligations,
including her own salary; and had full access to the
firm's attorney business and attorney trust accounts with
Sovereign Bank. She drafted all business checks for Burns
and, "[n]inetynine percent of the time," even
issued them, using a signature stamp for Burns. She testified
that he signed all attorney trust account checks.
2010, Burns was diagnosed with esophageal, stomach, and liver
cancer, and was told that he had one to three years to live,
He began aggressive and debilitating cancer treatment,
including chemotherapy. Angela testified that Burns'
illness and treatment severely taxed him and immediately
negatively impacted his law practice. According to McMillon,
Burns did not come to the office between August 2010 and
January 2011. Instead, he managed the firm from home and
through daily telephone conferences.
October 2010, respondent began assisting with Burns Law work,
with the consent and support of Garces & Grabler. In
April 2011, respondent moved into the Burnses' home in
Chester. He was going through a bitter divorce, needed a
place to live, and was willing to help Angela care for Burns.
an OAE interview on October 7, 2015, respondent represented
that he and Burns had held in-depth discussions about forming
a law partnership, named "Burns & Speck," to
become effective on June 1, 2011. Angela corroborated this
assertion, testifying that Burns was "anxious to get
something in writing" with respondent, and that they had
drafted a partnership agreement. McMillon, too, recounted
that Burns had informed her, before he died, that he and
respondent were forming a partnership.
maintained, however, that the partnership had never actually
been formed. Moreover, she testified that respondent had
promised her that he would take care of her, representing
that she would receive about $100, 000 after he wound down
Burns Law. Over time, she claimed, that $100, 000 promise
shrunk to $65, 000, then to $50, 000, and, ultimately,
respondent claimed that she actually owed the firm money.
testified that he and Burns had begun their discussions
regarding the creation of the law partnership in February
2011. Respondent admitted that he neither inquired about the
financial status of Burns' firm, nor reviewed Burns Law
financial records in connection with the partnership
negotiations. Respondent maintained that he and Burns had
"agreed on some ideas," which Burns then
memorialized, via bullet points, in a February 8, 2011 e-mail
to respondent. Respondent then expanded those bullet points
into a March 12, 2011 outline of a proposed partnership,
which he e-mailed to Burns. He and Burns further negotiated
terms, which were reflected in a draft partnership document.
Respondent stipulated, however, that they never executed a
final agreement. Nevertheless, respondent repeatedly asserted
that the terms of the partnership were final, because they
"shook hands on it" prior to May 31, 2011, and
further represented that he and Burns had adopted handwritten
changes to the partnership agreement.
draft agreement contemplated a partnership for at least two
years; for Burns initially to work only twenty hours per week
while .he recovered; for Burns to be the managing partner;
for Burns' monthly draw to be $15, 000 and
respondent's to be $10, 000; and, notably, stated that
each attorney's existing accounts receivable, from his
respective prior law firm, would remain an "individual
partner asset" unless otherwise agreed. During OAE
interviews on July 22, 2014 and October 7, 2015, respondent
claimed that he had properly applied that final provision of
the agreement in his administration of Burns Law.
Specifically, he asserted that, if legal fees were received
for services that Burns had performed for Burns Law, those
funds were deposited in the Burns Law attorney business
account, and "[i]f it was a new retainer agreement for
me, it would have went [sic] into Burns and Speck."
4, 2011, Burns died. Respondent testified that, by this time,
he "was running the law practice" known as Burns
Law. Respondent conceded, however, that he was formally
associated with Burns, at most, from May 31 to his death on
June 4, 2011.
to both McMillon and respondent, Burns Law was in "a lot
of debt." The practice owed multiple fee arbitration
awards, and was obligated to refund client and expert
retainers, given Bums' failure to perform promised work
after he fell ill. At least one of the fee arbitration awards
had been reduced to a judgment against Burns Law. Bills for
law office equipment and other operating expenses remained
unpaid, and the firm's landlord was threatening eviction
over past-due rent. McMillon testified that, due to
Burns' illness, the office was not receiving legal fees,
and that Burns had to cover his significant personal
expenses. Based on information gathered by Dennis Estis, the
attorney-trustee ultimately appointed for Burns Law, as
detailed below, Burns Law owed more than $56, 000 to clients
and third parties.
Burns Law was owed significant legal fees from clients for
work completed. For example, one client owed Burns more than
$91, 000. Based on information that Estis gathered, clients
owed Burns Law more than $172, 000 in outstanding legal fees.
Additionally, Burns was holding $25, 000 in a trust account
associated with one of his prior law partnerships, and more
than $80, 000 in a trust account for the Estate of Delia
Katenkamp, a long-standing client matter. Ultimately, $107,
226.91 was disbursed from the Burns Law attorney business
account to Estis, partially paying him for services rendered
as the trustee. After Burns Law was wound down, Angela
received only two paintings and an office chair from the
admitted that, on June 2, 2011, he paid his divorce attorney
$5, 000 in legal fees from the Burns Law attorney business
account, claiming that he and Burns had contemplated his
doing so, and that he had deposited enough of his own
earnings into that account to cover that disbursement.
Moreover, respondent maintained that he actually had saved
money for Burns' estate by remaining in the Burns Law
office space and paying the rent and other operating
14, 2011, ten days after Burns' death, respondent formed
Burns & Speck Attorneys at Law, LLC (Burns & Speck),
of which he was the sole owner. The firm used the same
office, in Iselin, that Burns Law had occupied. Respondent
and McMillon testified that respondent had formed the new
firm because he and Burns had agreed to a partnership, and
because he wanted to "honor" Burns. McMillon
testified that Angela, a graphic designer, had created
letterhead and envelopes with the Burns & Speck logo, and
had personally brought the stationery to the office, after
Burns had died. Angela disputed that assertion, testifying
that she had created the letterhead, at Burns' request,
in March 2011, and only as a sample for use in "talking
about the partnership." She conceded that she had hoped
the partnership would work out, and that Burns would fully
recover from his cancer, but steadfastly maintained that the
partnership was never consummated.
became concerned when she visited the bank and learned that
respondent had formed Burns & Speck and was
"commingling [Burns Law] money." At the time, she
believed that respondent represented her on a case she had
against an architect, and further claimed that respondent
owed a fiduciary duty to her, based on promises he had made
to Burns, and because she was Burns' heir. She related
that, upon confronting respondent about his use of Burns Law
funds, he represented that he would pursue a bankruptcy for
Burns Law, "screw all the creditors," and split the
money with her. At that point, respondent was still living in
her home. During a July 2014 OAE interview, respondent
admitted having represented the Burnses in litigation against
an architect, but asserted that any such representation had
ended before Burns' death, and, thus, he no longer had an
attorney-client relationship with Angela.
learning of the "commingling," Angela went to the
offices of Burns Law, while respondent was in Utah. She
testified that her visit was spurred by "[t]oo many odd
things" happening, citing a judgment against Burns Law
that had attached to her personal bank account, the
repossession of Burns' car from their home, and the
receipt of notices informing her that McMillon had not paid
her health insurance premium or mortgage payment. Upon
visiting the office, Angela learned of the existence of the
Burns & Speck law firm. Respondent had not informed her
of the formation of the law firm.
to respondent, many of Burns' files had been ignored
during his illness, and needed "[m]ore than CPR."
Shortly after Burns' death, respondent began to meet with
existing clients of Burns Law, in an effort to convince them
to allow him to assume their representation. Notably, and
contrary to his fundamental position in this case, on June 7,
June 29, and August 2, 2011, respondent executed retainer
agreements, which identified his firm as "Michael R.
Speck, Esq.," yet another new firm that respondent had
apparently formed - not Burns Law or Burns & Speck. On at
least one occasion thereafter, on July 5, 2011, however,
respondent executed a retainer agreement with a client that
identified his firm as Burns & Speck.
31, 2011, respondent deposited checks, totaling $6, 250, for
fees owed to him in connection with his prior law practice,
into Burns Law bank accounts. McMillon testified that she saw
no problem with the continued use of the Burns Law bank
accounts. Moreover, she admitted repeatedly using Burns'
signature stamp, after he had died, to issue business account
checks drawn on Burns Law funds. Specifically, she testified
regarding her June 10 and June 14, 2011 issuance of attorney
business account check numbers 1206 and 1207 to respondent,
in the amounts of $2, 000 and $500, respectively, as
"draws," as well as a check to herself, for $1,
000, representing money that she claimed Burns had borrowed
from her, in April 2011, to cover a gambling debt. She also
issued numerous checks to pay law firm operating expenses.
14, 2011, the same day that he created Burns & Speck,
respondent opened three bank accounts for the firm - an
attorney business account, an attorney trust account, and a
money market account. Respondent was the only authorized
signatory on all three accounts. Respondent used $2, 000 from
the Burns Law attorney business account to open the new
accounts. The deposited check was signed using Burns'
signature stamp, and included the notation "open new
account." The $2f000 was distributed in
the new accounts as follows:
Attorney Business Account - $1, 400
Attorney Trust Account - $ 100
Money Market Account - $ 500
an OAE interview in October 2015, respondent claimed that the
only reason he could "think of" that this $2, 000
was used was it "could have been money that got
mis-deposited [sic]" from his client matters into the
Burns Law attorney business account. During the ethics
hearing, however, respondent testified that he had
intentionally used the $2, 000 in Burns Law funds to
"transfer assets into the new partnership account,"
as he and Burns had contemplated. Sovereign Bank sent
statements for these accounts to Angela's house, because
respondent still lived there and had used her mailing
address. Angela admitted that she had opened the statements
because "she was Burns." As detailed above, weeks
after Burns' death, she discovered that respondent was
using Burns Law funds. Thus, on July 14, 2011, she complained
to the bank, which froze those accounts. She claimed that, in
turn, respondent called her on the phone and began
"screaming" at her.
acknowledged that, "at some point" after Burns'
death, he became concerned with the ethics implications of
using Burns' signature stamp, stating that he
"figured out [McMillon] was writing checks with a
stamp." Despite his purported concern, respondent
conceded that, as late as June 20, 2011, almost three weeks
after Burns had died, respondent deposited a $500 draw check
using Burns' stamp. Moreover, he could not recall taking
any corrective action in respect of McMillon's use of
Burns" signature stamp.
14, 2011, the same date that he created Burns & Speck and
opened the Sovereign Bank accounts, respondent applied to be
appointed the attorney-trustee for Burns Law, pursuant to r.
1:20-19, via an e-mail to the Honorable Travis L. Francis,
A.J.S.C., then the Middlesex County Assignment Judge. In that
e-mail, respondent stated that, due to Burns' illness and
his heavily medicated state near the end of his life,
respondent believed that Burns was not "competent enough
to go forward with our partnership" and that "[w]e
never consummated the deal." During a July 22, 2014 OAE
interview, respondent also stated that, in the last month of
his life, Burns was "on very large doses of pain
killers. And I started to worry about his competence."
He described Burns & Speck as a single-member entity,
with Burns' name on the letterhead "solely to honor
him," and twice referred to Angela as Burns'
"sole heir." During the hearing before the special
master, respondent stated "I understand the way it
looks," but maintained that he meant that Burns was not
competent to continue to practice law, but was mentally
competent to agree to form a partnership. In requesting the
appointment from Judge Francis, respondent stressed the
outstanding obligations of Burns Law to existing clients,
specifically referencing multiple distributions that needed
to be made posthaste, including for overdue fee arbitration
next day, Judge Francis appointed respondent as the
attorney-trustee of Burns Law. Despite the overtures that
respondent had made to the court in his appointment request,
he neither conducted an accounting of Burns Law's assets
and debts, as required of an attorney-trustee, nor paid any
of Burns Law's fee arbitration or client debts. Indeed,
he admitted he "didn't do anything with the Court
pursuant to [his role as] the attorney-trustee."
Respondent testified that, in retrospect, it was imprudent
for him to have applied to be the attorney-trustee, as he
"wasn't equipped to do it." Notably, during
oral argument before us, respondent's counsel repeatedly
took the position that the new firm, Burns & Speck, had
assumed all of the debts of Burns Law.
learned of respondent's appointment as the
attorney-trustee for Burns Law after respondent locked her
out of the office and, as she recounted, "sent [her] a
big reprimand," which stated that "he was in charge
now." At the end of July or in early August 2011, given
his deteriorating relationship with Angela, respondent
vacated the Burnses' residence. On August 11, 2011,
Angela's attorney, Mark Goldstein, filed a motion seeking
respondent's immediate removal as the attorney-trustee of
Burns Law. On September 30, 2011, Judge Francis removed
respondent and appointed Dennis Istis as the
on July 1, 2011, invoices for outstanding Burns Law legal
fees were sent to existing Burns Law clients, using Burns
& Speck letterhead. Also, on July 8, 2011, McMillon had
deposited a $13, 503.59 check into the Burns & Speck
trust account, drawn on a trust account that Burns Law had
held exclusively for the Estate of Delia Katenkamp, one of
Burns' earliest clients. Burns had received these funds