In The Matter Of Dwight Hugh Simon Day An Attorney At Law
Argued: January 17, 2019
Docket No. XIV-2015-0222E
Christina Blunda appeared on behalf of the Office of Attorney
N. Adams 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 disciplinary recommendation for
disbarment filed by Special Master Harold W. Fullilove,
J.S.C. (Ret, ). The three-count formal ethics complaint
charged respondent with violations of RPC 1.15
(presumably, subsection (a)) and the principles of In re
Wilson, 81, N.J, 451 (1979) (knowing misappropriation of
client funds), RPC 3.3(a)(1) -- (false statement of
material fact to a tribunal), RPC 8.4(b) (commission
of a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer), and RPC
8.4(c) (conduct involving dishonesty, fraud, deceit or
misrepresentation) (count one); RPC 8.1(b) (failure
to cooperate with disciplinary authorities) (count two); and
RPC 1.15(d) and BL 1:21-6 (recordkeeping) (count
Office of Attorney Ethics (OAE) recommends respondent's
disbarment. Respondent contends that, at most, his misconduct
constituted negligent misappropriation of client trust funds,
and, therefore, disbarment is not warranted.
reasons detailed below, we find that respondent knowingly
misappropriated client trust funds and, thus, recommend his
earned admission to the New Jersey bar in 2004. During the
relevant time frame, he was a solo practitioner, with an
office in Newark, New Jersey. He has no prior discipline.
the relevant time frame, respondent maintained an attorney
trust account (ATA) at PNC Bank and an attorney business
account (ABA) at Wells Fargo. In September or October 2010,
the grievant, B.N., retained respondent to sue the federal
government in connection with injuries he claimed to have
received when he was assaulted while incarcerated in federal
prison. Respondent and B.N. executed a contingent fee
agreement that provided for attorneys' fees "based
on a percentage of the net recovery," but failed to set
forth the specific percentage.
August 12, 2011, respondent filed a lawsuit in behalf of
B.N., ; naming the federal government and multiple federal
employees as defendants. Almost three years later, in
February 2014, the parties to the lawsuit executed a
Stipulation of Dismissal, whereby B.N. agreed to dismiss the
complaint, with prejudice, in return for a $10, 000
July 14, 2014 letter, respondent informed B.N. that he had
not yet received the settlement proceeds, but would deduct
$3, 000 from them for his costs, expenses, and attorneys'
fees. In that letter, respondent asked B.N. to provide him
instructions for disbursing B.N.'s portion of the
settlement. Two days later, on July 16, 2014, an Assistant
United States Attorney hand-delivered to respondent a $10,
000 United States Treasury check, payable to respondent's
law firm. That same day, respondent deposited the check in
his ATA, bringing the balance to $14, 524.38, which included
the $10, 000 for B.N., $4, 394.50 for an unrelated client
matter (Nelson), and $129.88 in unidentified trust funds.
respondent initially alleged that he was entitled to almost
$6, 000 of the settlement amount, he later negotiated with
B.N. and agreed that, of the $10, 000 settlement, respondent
would receive a $2, 000 fee, and B.N. would receive $8, 000.
Respondent made this concession because he did not have
documents supporting the costs he claimed he had incurred in
B. N's case. Moreover, respondent admitted that he had
neither prepared nor provided to B.N. a settlement statement,
as he routinely did for other clients in civil matters.
Respondent admitted that he had never sent B.N. the final $1,
000 of the $8, 000 he owed to his client.
the ethics hearing, respondent repeatedly admitted that,
although he knew that he had an express obligation to hold a
client's settlement funds in his ATA until they are
disbursed, he had not done so in respect of B.N.'s trust
funds. Respondent further admitted that, notwithstanding his
awareness of his duty to safeguard B.N.'s funds, within
approximately one month of receipt of those trust funds, he
had disbursed ...