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In re Simon Day

Supreme Court of New Jersey

April 8, 2019

In The Matter Of Dwight Hugh Simon Day An Attorney At Law

          Argued: January 17, 2019

         District Docket No. XIV-2015-0222E

          Christina Blunda appeared on behalf of the Office of Attorney Ethics.

          Tisha N. Adams appeared on behalf of respondent.

          Ellen A. Brodsky Chief Counsel

          DECISION

          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 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 three).

         The 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.

         For the reasons detailed below, we find that respondent knowingly misappropriated client trust funds and, thus, recommend his disbarment.

         Respondent 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.

         During 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.

         On 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 settlement.

         In a 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.

         Although 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.

         During 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 ...


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