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In re Downs

Supreme Court of New Jersey

June 26, 2018

IN THE MATTER OF THOMAS E. DOWNS, IV AN ATTORNEY AT LAW

          Argued: April 19, 2018

          District Docket No. XIV-2015-0166E

          HoeChin Kim appeared on behalf of the Office of Attorney Ethics.

          Gerard E. Hanlon appeared on behalf of respondent.

          Ellen A. Brodsky Chief Counsel

          DECISION

          Disciplinary Review Board Bonnie C. Frost, Chair

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

         This matter was before us on a disciplinary recommendation for an admonition filed by the District VIII Ethics Committee (DEC). We determined to treat the matter as a recommendation for greater discipline, in accordance with R. l:20-15(f) (4) . The formal ethics complaint charged respondent with violating RPC 1.1(a) (gross neglect), RPC 1.3 (lack of diligence), and RPC 1.4(b) (failure to keep the client reasonably informed).

         For the reasons set forth below, we determine to impose a reprimand.

         Respondent earned admission to the New Jersey bar in 1975. On April 19, 2013, he received an admonition for failure to communicate with a client and failure to cooperate with an ethics investigation. In the Matter of Thomas E. Downs, IV, DRB 12-407 (April 19, 2013). On March 9, 2016, in a default matter, respondent received a censure for his second instance of failure to communicate with a client, failure to provide in writing the rate or basis of his fee, failure to return the unearned portion of a retainer, and failure to cooperate with disciplinary authorities. In re Downs, 224 N.J. 272 (2016).

         We turn to the facts of this case. Joseph Makara died on March 5, 2013. His Last Will and Testament, which respondent had prepared, was executed on June 22, 2012, and appointed Joseph's sister, Letitia Makara (the grievant), to three roles: Executrix, Testamentary Trustee, and Guardian to any minor heir of his estate. Josephs bequeathed his residuary estate as follows: 50% to his son, Andrew R. Makara (Andrew R.); 25% to his minor grandson, Andrew J. Makara (Andrew J.); and 25% to his adult grandson, Michael C. Smith. The estate comprised three assets: a joint bank account with Andrew R., at Amboy Bank, in the amount of $88, 261.49; an ING insurance policy valued at $100, 000; and real estate located in Parlin, Middlesex County, New Jersey. Upon Joseph's death, Andrew R. became the sole holder of the account with Amboy Bank.

         On March 21, 2013, Letitia-- retained respondent to represent the estate. Pursuant to a written fee agreement, the estate was to pay respondent a $2, 500 retainer and $300 per hour for legal services rendered. Respondent maintains that Letitia was aware that Andrew R. paid the retainer, on March 22, 2013, by a check drawn on the Amboy Bank account he had shared with Joseph.

         Joseph's ING insurance policy beneficiaries mirrored the division of the estate set forth in his will. The insurance proceeds, thus, were to be disbursed as follows: 50% to Andrew R.; 25% to Andrew J.; and 25% to Michael. Accordingly, after the Middlesex County Surrogate's Office issued Letters of Guardianship to Letitia, respondent provided them to ING, requesting disbursement of Andrew J.'s 25% share of the insurance proceeds to Letitia, as the Testamentary Guardian. ING, however, disbursed the insurance proceeds directly to Andrew J., pursuant to the express provisions of the insurance policy. Because Andrew J. was a minor, his father, Andrew R., received the $25, 000 in insurance proceeds earmarked for Andrew J.

         On September 27, 2013, a closing for the sale of Joseph's Parlin property was held at the law office of Terry J. Finkelstein, the buyer's attorney, Letitia signed the HUD-1 settlement statement, as Executrix and Trustee of the estate. Respondent was paid a $1, 100 legal fee for services rendered in respect of the transaction. At Letitia's request, respondent deposited the $252, 051.93 in sale proceeds from the transaction into his ...


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