In re Bowe

          Argued: October 18, 2018

         District Docket No. XIV-2016-0291E

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

          Robert A. Weir, Jr. appeared on behalf of respondent.

          Ellen A. Brodsky Chief Counsel.

          DECISION

          Bonnie C. Frost, Chair Judge.

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

         This matter was before us on a recommendation for a six-month suspension filed by the District IX Ethics Committee (DEC). The two-count complaint charged respondent with violations of RPC 1.15(a) (failure to safeguard funds - commingling personal and client funds), RPC 1.15(d) (recordkeeping violations), RPC 5.5(a) (unauthorized practice of law), RPC 8.4(b) (criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), ^[1] RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), ^[2] and RPC 8.4(d) (conduct prejudicial to the administration of justice).

         For the reasons expressed below, we determine that respondent not be permitted to appear pro hac vice in any New Jersey matters, until further Order of the Court and, should he apply for readmission, his readmission is to be withheld for a period of one year. We further determine to require the OAE to refer respondent's conduct to Illinois disciplinary authorities.

         Respondent was admitted to the New Jersey bar in 1984. He has no history of discipline. However, respondent's license was administratively revoked, on August 18, 2014, pursuant to R. 1:28-2(c), based on his failure to pay his annual attorney registration fee for seven consecutive years. Although respondent was admitted to practice in Illinois in 1982, according to the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois' website, respondent is not authorized to practice, based on his failure to demonstrate "required MCLE compliance." The website further indicates "Last Registered Year: 2007."

         The stipulated facts and testimony at the DEC hearing establish that respondent's failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection (Fund) for seven consecutive years and to report his change of address to the OAE or to the Fund, resulted in the Court's Order administratively revoking his license to practice law. Respondent asserted that he was unaware of the revocation. However, even after the OAE provided him with notice of it, he continued to practice law for several months.^[3]

         By way of background, at the time of the DEC hearing, respondent was sixty-five years old. Prior to becoming an attorney, he was a civil engineer. He began his legal career in Chicago, as in-house counsel for an engineering firm. Thereafter, he worked for two large corporations before joining the law firm of Giordano, Halleran & Ciesla, where he was employed for ten years. Subsequently, he and two other attorneys from that firm formed the law firm of Bowe, Caruso & Epstein, which dissolved in 2000. From approximately 2003 to early 2007, respondent practiced law at a firm located at Two Bridge Avenue, Red Bank, New Jersey, and registered that address with the Fund. After working in two other firms, including the firm of Bowe & Fernicola, also in Red Bank, respondent began working as a solo practitioner in April 2008. Respondent failed to notify the Fund or the OAE of his new address as PL 1:20-1(c) requires.^[4]

         At the relevant time, respondent maintained trust and business accounts at Bank of America. On May 6, 2016, the bank notified the OAE of an overdraft in respondent's trust account. Thereafter, by letter dated May 11, 2016, the OAE directed respondent to provide a written explanation for the overdraft. The letter further notified him that, on August 18, 2014, his license to practice law had been administratively revoked.

         On May 25, 2016, respondent submitted a reply to the OAE. Thereafter, on June 23, 2016, the OAE conducted a demand interview/audit of respondent's books and records, which revealed the following recordkeeping violations: (1) failure to perform three-way trust account reconciliations; (2) failure to maintain bank account cash receipts and disbursements journals; (3) inactive balances in the trust account; (4) personal funds relating to his mother's estate commingled with trust account funds; and (5) failure to maintain a client ledger card identifying attorney funds designated for bank charges; violations of RPC 1.15(a), RPC 1.15(d), and R, 1:21-6.

         Respondent asserted that, after he left the Bowe & Fernicola firm, he thought he had so informed the Fund, but "obviously" had not done so because he did not receive any further communications from the Fund. He maintained that all of the Fund's notices had been sent to his prior law firm address.

         Respondent stipulated that he did not file his annual attorney registration statements or pay his annual assessment to the Fund from 2008 to 2014. He asserted that he recalled filling out the attorney registration documents after his office address changed and thought that his business manager had mailed in the forms, "[b]ut, obviously," unbeknownst to him, that had not occurred. When asked whether he realized that, "at some point," he had not paid his fee or taken required continuing legal education courses, he replied, "I completely suppressed it. Did I know? I guess yes, subconsciously. But consciously I just suppressed it and pushed forward."

         Respondent maintained that, from 2008 through 2013, he suffered a financial setback. Specifically, his house went into foreclosure and he was struggling financially to keep his house and maintain a staff, whom he ultimately dismissed. He ignored notices from the Fund, from the Internal Revenue Service, and from his mortgage company. As a result of his problems, he began drinking excessively. In 2013 and 2014, he sought counseling to address his depression.

         According to the stipulation, in May 2014, the Fund notified respondent that he had been on the ineligible list since 2008 and that, if he did not rectify his ineligibility, his license to practice law would be administratively revoked. Respondent did not file the registration forms or pay his cumulative assessments before the August 22, 2014 deadline. Therefore, on August 18, 2014, the Court entered an Order, effective August 25, 2014, administratively revoking respondent's license to practice law, a copy of which was sent to his last known office address. The revocation also was published in the August 25, 2014 New Jersey Law Journal. Respondent maintained that, as a cost-cutting measure, he had canceled all of his subscriptions and, therefore, did not receive the New Jersey Law Journal.

         As noted previously, on May 11, 2016, the OAE notified respondent that his license had been revoked. He took no immediate action to remedy the revocation. Indeed, he continued to practice law. At the June 23, 2016 OAE demand audit, respondent informed the OAE that he was currently representing two clients in commercial real estate transactions. Respondent's bank statements and bills to his clients confirmed that he continued to provide legal services, even after the OAE audit. Thereafter, respondent did not reply to the OAE's multiple calls seeking information on the steps he planned to take to obtain the restoration of his license.

         In respect of the trust account overdraft, respondent maintained that, in 2016, he had mistakenly issued a trust account check from the wrong subaccount, resulting in an overdraft in another subaccount. Although he resolved the problem immediately, his bank notified the OAE of a trust overdraft, resulting in OAE's inquiry. Respondent ...