In the Matter of Charles M. Damian
Docket No. XIV-2017-0716E
Disciplinary Review Board reviewed the motion for discipline
by consent (reprimand or such lesser discipline as the Board
deems appropriate) filed by the Office of Attorney Ethics
(OAE), pursuant to R.1:20-10(b). Following a review of the
record, the Board determined to grant the motion. In the
Board's view, a reprimand is the appropriate quantum of
discipline for respondent's violation of RPC
1.15(d) (failure to comply with the recordkeeping
requirements of R. 1:21 -6).
on September 25, 2012, the OAE's random audit of
respondent's attorney books and records identified
recordkeeping deficiencies, including several unidentified
trust account balances. In a January 25, 2013 certification
to the OAE, respondent represented that he had resolved the
deficiencies, had contacted all clients and attorneys
involved in the matters, and was aggressively pursuing the
disbursement of all inactive balances in the trust account.
during a June 19, 2018 follow-up audit, the OAE identified
eleven inactive balances in the trust account, including
seven respondent had certified, in 2013, he was actively
attempting to disburse. The 2018 audit also identified new
recordkeeping deficiencies, including an improper trust
account designation; old, outstanding trust account checks;
and improper image-processed trust and business account
checks. As of September 2018, respondent had resolved all
recordkeeping deficiencies and was in full compliance with R.
1:21-6, including the disbursement of all inactive client
respondent's stipulated failure to abide by the
recordkeeping Rules, he is guilty of having violated
RPC 1.15(d) and R., 1:21-6.
irregularities ordinarily are met with an admonition.
See, e.g., In the Matter of Eric
Salzman. DRB 15-064 (May 27, 2015) and In the Matter
of Leonard S. Miller, DRB 14-178 (September 23, 2014). A
reprimand, however, may be imposed if the attorney failed to
correct recordkeeping deficiencies that had been brought to
his or her attention previously, or the attorney has prior
discipline. See, e.g.. In re
Michals, 224 N.J. 457 (2015) and In re Murray,
220 N.J. 47 (2014).
In re Wianecki, 232 N.J. 454 (2018), the Board
imposed a reprimand on an attorney who had engaged in
recordkeeping violations identified during a demand audit,
although those violations had not resulted in a negligent
misappropriation. In the Matter of Robert A. Wianecki,
Jr., DRB 17-381 (February 21, 2018) (slip op. at 1 -2).
In Wianecki, a June 2012 random audit identified
several recordkeeping deficiencies, including the electronic
transfer of funds without proper authorization and the use of
improperly designated business account checks. In November
2012, Wianecki certified that those and other deficiencies
had been corrected. Id. at 2. In May 2016, after
receiving overdraft notices from Wianecki's bank, the OAE
conducted a demand audit of his trust account. Contrary to
statements contained in his certification to the OAE three
years earlier, Wianecki had continued to make electronic
transfers without proper authorization and to use the
improperly designated business account checks. In imposing a
reprimand, the Board remarked that, although Wianecki had not
been disciplined for his 2012 recordkeeping deficiencies, he
'"should have been more guarded in the handling of
his attorney accounts'" and '"should have
recognized the importance of being mindful of the
recordkeeping requirements.'" Id. at 3
(quoting In re Conroy, 185 N.J. 277 (2005).
in mitigation, respondent admitted his misconduct and
consented to discipline, thereby saving disciplinary
resources. Because the parties also cited lack of harm to
clients as a mitigating factor, the Board was left to
conclude that, once the inactive trust account balances were
resolved, the OAE was satisfied that no clients had been
aggravation, respondent has a prior admonition, albeit for
dissimilar misconduct. Moreover, he permitted inactive trust
account balances to languish in his trust account for more
than five years after they were first discovered by the OAE,
and after he represented to the OAE that he was aggressively
seeking to resolve the disbursement of those funds.
to the attorney in Wianecki, respondent escaped
discipline after the initial OAE audit disclosed
recordkeeping deficiencies, and should have had a heightened
awareness of his recordkeeping duties when handling his
attorney accounts. For respondent's failure to learn from
prior mistakes, the Board determined to impose a reprimand.
are the following documents:
1. Notice of motion for discipline by consent, dated March ...