Sunday, October 12, 2008

Prospective Sanction

An attorney who was convicted of a number of criminal offenses in New Jersey relating to the conversion of a $75,000 settlement was suspended for three years by the New York Appellate Division for the First Judicial Department. The conviction is described in the court's opinion:

...respondent was convicted, after a jury trial, in Superior Court of the State of New Jersey, Union County, of one count of theft by failure to make required disposition of property in the third degree (NJ Stat Ann § 2C:20-9), one count of misapplication of entrusted property in the third degree (NJ Stat Ann § 2C:21-15) and two counts of forgery in the fourth degree (NJ Stat Ann § 2C:21-1a[2], [3]). He was sentenced to three years' probation, 500 hours community service, and a fine of $5,000, plus assessments.

Respondent's theft convictions resulted from his failure to pay certain clients their $50,000 portion of a $75,000 settlement payment, received in January 1999 in connection with the settlement of the clients' wrongful death action relating to the death of their son. Respondent deposited the $75,000 check into his attorney trust account, which had a balance of $250 the previous day. Respondent then depleted most of the funds in the escrow account within two days, by writing checks to pay clients and other firm obligations. The forgery convictions were based on his forgery of the clients' signatures on the settlement check, which was made payable to respondent's law firm and the two clients. Respondent eventually made payment of the $50,000 to his clients in December 1999, but only after he became aware of a police investigation into his conduct. After an ethics investigation was commenced, respondent consented to his immediate and temporary suspension in New Jersey in 2000.

The attorney was suspended in New York on an interim basis in 2003. The conviction, except for the forgery, was reversed on appeal because ethics rules were submitted to the jury without proper instructions. A referee recommended a suspension in New York that would have reinstated the attorney, which the court rejected in favor of a suspension that will run from the date of the decision here.

The Referee's recommended sanction of a three-year retroactive suspension to January 2004, which would have already expired in January 2007, is too lenient. While a two-year suspension might be appropriate if the misconduct was limited to the forgery, respondent's additional misconduct in making false representations to his clients and his temporary use of such funds to pay personal or firm obligations warrants a more severe sanction. Also relevant is respondent's minimal expression of remorse, since it provides this Court with a basis to evaluate whether respondent is deserving of a chance to practice law again in this State in the near future. In sum, having considered respondent's convictions of the serious crimes of fourth-degree forgery, his misrepresentations and use of escrow funds, and the aggravating and mitigating circumstances previously mentioned, we conclude that a suspension of three years is the appropriate sanction.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/10/an-attorney-w-1.html

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