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In re Gayl

Supreme Court of New Jersey

June 8, 2018

IN THE MATTER OF JOSHUA LAWRENCE GAYL AN ATTORNEY AT LAW

          Argued: February 15, 2018

          Hillary K. Horton appeared on behalf of the Office of Attorney Ethics.

          Respondent waived appearance for oral argument.

          BONNIE C. FROST, CHAIR 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 motion for final discipline, filed by the Office of Attorney Ethics (OAE), pursuant to R. l:20-13(c)(2), following respondent's guilty plea to, and conviction of, conspiracy to commit obstruction of justice, contrary to 18 U.S.C. § 371 (1994). The OAE seeks a three-year prospective suspension, with the condition that, prior to reinstatement, respondent be required to submit proof of fitness to practice, as attested to by a qualified mental health professional approved by the OAE. Respondent urges the imposition of "a retroactive suspension for a reasonable amount of time."

         For the reasons set forth below, we determine to grant the OAE's motion for final discipline and find that respondent committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of RPC 8.4(b), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of RFC 8.4(c). Consequently, we determine to impose a three-year suspension, retroactive to April 7, 2017, the date on which the Court temporarily suspended respondent from the practice of law. Moreover, we condition his reinstatement on his provision of proof of fitness to practice law as attested to by a mental health professional approved by the OAE.

         Respondent was admitted to the bars of New Jersey and Pennsylvania in 2006. At the relevant times, he was general counsel to VO Financial, Inc. (VO Financial), a provider of timeshare consulting services in Egg Harbor Township.

         Respondent's disciplinary history is limited to a temporary suspension, imposed by the Court on April 7, 2017, following his federal conspiracy conviction. In re Gayl, 228 N.J. 468 (2017).

         On March 23, 2016, respondent appeared before the Honorable Noel L. Hillman, U.S.D.J., in the United States District Court for the District of New Jersey, waived indictment, and pleaded guilty to an information charging him with one count of conspiracy to obstruct justice, a violation of 18 U.S.C. § 371.

         In July 2012, respondent became general counsel to, and corporate secretary of, VO Financial, the successor corporation to the Vacation Ownership Group (VO Group). VO Financial's president was Adam Lacerda; its vice president was Ian Resnick; and its chief operating officer was Ashley Lacerda.

         At the time respondent became employed by VO Financial, the Lacerdas, Resnick, and "others" were under federal indictment for conspiracy to commit mail and wire fraud while they were involved with the VO Group. Respondent knew that the Lacerdas, Resnick, "and others" had been indicted because, prior to his hiring, he had read the indictment.

         The criminal trial was scheduled to begin in July 2013. Resnick continued to work for VO Financial through June of that year. The Lacerdas continued to work there through July 2013.

         VO Financial maintained a "pipeline" database containing notes of contacts with its customers, copies of recordings of telephone calls, copies of documents, "tasks from one VO Financial employee to another," and other materials. Respondent used the pipeline database in his work with the company.

         During respondent's employment with VO Financial, he was aware of the developments in the criminal case. Specifically, respondent knew that the court had prohibited the Lacerdas and Resnick from communicating with any person named in the indictment or anyone identified as a witness by the government. Nevertheless, in September and October 2 012, respondent wrote to and called Victim Number 1 (Victim 1), knowing that Victim 1 had told the Federal Bureau of Investigation (FBI) that the VO Group had defrauded Victim 1 and that Victim 1 was to be a witness in the criminal case. In doing so, respondent intended to "lock Victim ... 1 into a story and elicit any statements that would be helpful to the defense in the criminal case." Respondent did not tell Victim 1 of his intention.

         In a September 25, 2012 letter, respondent informed Victim 1 that respondent would be "better able to assist" Victim 1 if Victim 1 was able to "confirm in writing some information about what Victim 1 was told by the FBI." Six days later, respondent and "S.A." telephoned Victim 1. S.A. began the call by informing Victim 1 that the call was being recorded for quality assurance and training purposes. The statement was misleading because the true purpose of recording the call was to obtain recorded statements favorable to the defense.

         During the call with Victim 1, respondent summarized the allegations in the criminal case but omitted the allegation that the defendants had misrepresented to the victims that the VO Group would sell their timeshares. Respondent asked Victim 1 about Victim 1' s conversations with the FBI. When Victim 1 replied that a VO Group representative had told Victim 1 that the VO Group would sell Victim l's timeshare, respondent asserted "we do not sell timeshares," and stated that Victim 1 was confused in his/her recollection. Respondent admitted that, at the time of the call, he had no knowledge of what the VO Group representative actually had told Victim 1.

         After the telephone call with Victim 1, respondent talked to Adam Lacerda about the conversation. A few minutes later, and at Lacerda's request, respondent called Victim 1 for the purpose of eliciting additional statements that were helpful to the defense, including that Victim 1 was mistaken in his/her recollection regarding the VO Group's promise to sell Victim l's timeshare. Respondent did not tell Victim 1 that this was the purpose of his telephone call. At the end of the conversation, ...


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