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In re Tabor

Supreme Court of New Jersey

June 11, 2018


          Argued: March 15, 2018

         District Docket No. XIV-2013-0539E

          HoeChin Kim appeared on behalf of the Office of Attorney Ethics. Respondent appeared pro se.

          Bonnie C. Frost, Chair Ellen A. Brodsky Chief Counsel.


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

         This matter was before us on a recommendation for disbarment filed by Special Master Patricia B. Santelle. The single-count complaint charged respondent with violating RPC 1.15(a) and In re Wilson, 81 N.J. 451 (1979) (knowing misappropriation of client funds), RPC 8.4(b) (criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects);[1] and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). For the reasons set forth below, we recommend that respondent be disbarred.

         Respondent was admitted to the New Jersey bar, as W*1JL CIS the Pennsylvania and Massachusetts bars, in 2002. At the relevant times, he maintained offices for the practice of law at Tabor Legal Solutions, LLC, in Billerica, Massachusetts. New Jersey has jurisdiction over this matter, pursuant to RPC 8.5(a), which provides that "a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction regardless of where the lawyer's conduct occurs."

         Respondent has no disciplinary history in New Jersey. This matter originally was before us in September 2013 as a default. Subsequently, on October 22, 2013, we granted respondent's motion to vacate the default, and remanded the matter for a hearing. Following a hearing, the matter is again before us on a recommendation for disbarment.[2]

         This matter involves respondent's handling of funds received on behalf of the grievant, Gregory Buchanan. Specifically, the complaint alleged that respondent knowingly misappropriated $16, 250 intended for his client, Buchanan, and/or his client's company, Buchanan & Associates (B&A). Although respondent admits that he used the funds for his own purposes, he maintains that he was Buchanan's business partner -not his lawyer - and that the funds represented his "sweat equity" in the business. Thus, he claims, the funds at issue do not constitute "client funds," and, therefore, are not properly the subject of RPC 1.15(a) or In re Wilson, 81 N.J. 451 (1979).

         The background leading to respondent's use of the subject funds is somewhat involved and convoluted. Moreover, presumably because the parties dispute the characterization of the funds at issue, a fair amount of the testimony was devoted to the nature of respondent's relationship with Buchanan and/or his companies.

         Sometime in 2008 or 2009, a mutual friend, Kyle Spells, introduced Buchanan to respondent, indicating that respondent was a New Jersey attorney. Buchanan claims that, soon thereafter, respondent began providing legal services to him, including the review of contracts, purchase and sale agreements, and lease agreements, as well as general legal advice relating to one or more of his companies. Respondent admits that he performed these tasks, but denies that his services were legal in nature or that he ever functioned as Buchanan's attorney.

         According to respondent, he, Spells, and a third individual created Vinamar, LLC (Vinamar) in order to provide professional consulting services to Buchanan and his several companies. Respondent consistently pointed to the consulting agreement between Transworld World Power, LLC (Transworld), a Buchanan-owned company, and Vinamar, which specifically refers to non-legal services, to support his claim that he did not function as Buchanan's attorney. Ultimately, however, the work Vinamar performed for Transworld included incorporating foreign entities, as well as drafting corporate resolutions and operating agreements.

         Buchanan testified that he considered respondent to be a very competent attorney, in fact, in his opinion, respondent provided all of the value from Vinamar, which is why respondent eventually left Vinamar and formed his own entity. Specifically, he formed Tabor Legal Solutions (Tabor Legal), which, respondent maintained, was also a non-legal services company. After respondent formed Tabor Legal, Buchanan had no further contact with anyone at Vinamar, other than respondent. Thus, Buchanan testified, Vinamar was not involved in the $16, 250 payment dispute that ultimately developed. Respondent, however, maintained that Tabor Legal was formed while the agreement with Vinamar was still in effect, that the Vinamar agreement was never terminated, and that, therefore, Tabor Legal and Vinamar are one and the same.[3]

         According to Buchanan, sometime in 2010, Transworld officially hired respondent, as an individual, to perform various legal services. A written agreement to that end was never drafted. Despite the lack of a formal fee agreement, Buchanan periodically sent respondent money to cover "out-of-pocket expenses." Otherwise, respondent would participate in the ownership structure of any new entity acquired by Transworld, which Buchanan described as a "success-fee type of relationship." Buchanan also described the relationship as one that gave respondent an equity stake in lieu of a fee. Buchanan testified that, ultimately, respondent was a partner only in Transworld Aerospace and Transworld Capital. They had formed those two entities together, but, unfortunately, nothing ever came to fruition beyond that.

         When Buchanan did pay respondent, it was either by check or in cash. The checks ranged from $1, 000 to $5, 000 so respondent "wouldn't fall behind." He considered respondent a trusted friend. Therefore, if respondent said he needed a few dollars, Buchanan would give it to him.

         Eventually, Buchanan began operating B&A, an executive search and recruiting company. Buchanan consistently denied that respondent had been an equity partner in B&A, that respondent assisted in its creation, or that respondent provided any legal services to B&A. Conversely, respondent claimed he was an owner/partner of B&A.

         B&A eventually began providing recruiting services for Chromalloy Gas and Turbine, LLC (Chromalloy). These services involved the recruitment of Ricardo Cruz. It is undisputed that respondent had no involvement with Cruz's recruitment. Rather, according to Buchanan, respondent became involved with B&A only when Buchanan began establishing that entity. Buchanan needed somewhere to bill for the Chromalloy job and he had not yet formed B&A. When he asked respondent's advice, respondent offered to establish a "d/b/a" account under Tabor Legal to which Chromalloy could send money until Buchanan was able to "set-up" the new entity.

         Respondent, on the other hand, categorized the Chromalloy business as a venture between Transworld and Tabor Legal. For tax purposes, the money was to flow through respondent's entity, Tabor Legal, in order to move the partnership forward. To that end, on June 3, 2011, respondent opened a business checking account ending #9988 under "Tabor Legal Solutions, LLC DBA Buchanan Associates." The address on the account was respondent's home address in Billerica, Massachusetts.

         On August 8, 2011, Chromalloy issued a $5, 000 check to B&A, as a retainer for services. On August 12, 2011, respondent deposited that check into account #9988, bringing the balance of the account to $4, 265.17.[4] Respondent immediately began making regular ATM withdrawals and debit card payments from the account, to businesses such as Exxon Mobil, K-Mart, and Best Buy. On several occasions, the account fell into an overdraft status, thereby accruing significant fees. As of August 31, 2011, the ending balance of account #9988 was ($617.24).

         Buchanan testified that he never received the $5, 000 retainer check from Chromalloy. The check was sent directly to respondent, and, at some point, Buchanan told respondent to keep the check as a retainer to cover any future expenses. Buchanan was clear, however, that this money was intended to cover future services since, as of August 8, 2011, respondent had been compensated for all past work with other "monies and equity."

         Respondent disputed Buchanan's explanation. First, he asserted, he did not receive this money into his company as an attorney. More importantly, respondent claimed, he cashed the $5, 000 check and sent the funds back to Buchanan. At another point in his testimony, however, respondent explained that he kept the $5, 000 for services "between me, my entity, Transworld Power, and Chromalloy." He also argued that the fee represented his compensation for consulting performed for Cruz, but then admitted that he had no involvement with the recruitment of Cruz or his services. Rather, he explained, his involvement was limited to the formation of Tabor Legal Solutions d/b/a Buchanan & Associates, as well doing the general corporate work for the entity.

         In yet a third explanation, respondent testified that, as an owner/partner of B&A, he was not required to perform any services. Rather, the money he kept was for his share in the partnership and not payment for services. Elaborating further, respondent explained that the $5, 000 rightfully belonged to him for taking all of the risk, such as insurance costs, taxes, liability (if Chromalloy sued), and other liabilities to which he was exposed- "I had all the risk [Buchanan] had none." According to respondent, this was the deal he made with Buchanan, albeit a verbal arrangement that was never reduced to writing.

         In still a fourth explanation, respondent maintained that he returned the $5, 000 to Buchanan during a meeting in the fall of 2011. Almost within the same breath, however, he claimed that he had sent a $5, 000 money order to Buchanan's home in New Jersey.

         As noted earlier, a review of respondent's account ending #9988 began and ended with a negative balance for the month of August 2011. Bank statements evidence various transactions over the course of the month, depleting the $5, 000 he deposited - all in the form of ATM and debit card transactions and overdraft fees, with only several entries for more than $100. When challenged on the lack of evidence supporting his claimed distribution of the $5, 000 to Buchanan, respondent explained that he had paid the monies from his separate, personal account, not account #9988, and not by check. Thus, he had no record of the payment. He later maintained that he paid the money to ...

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