Saturday, July 8, 2017
A crime of opportunity led to the public censure of a New Jersey attorney.
Read the agreed-upon facts and tell me whether you think this is a non-suspension case.
The attorney stipulated to these facts recounted in the report of the Disciplinary Review Board
On the afternoon of February 25, 2015, Arthur Alte, IV, a TD Bank customer, cashed his pay check for $1,185.65 at the drive-up window of the Hazlet, New Jersey branch of TD Bank.
After conducting the transaction, Alte became distracted while on his cell phone and left the drive-up window without retrieving from the transaction tube the bank envelope containing $1,185.65 in cash and his driver’s license.
Realizing his mistake a few minutes later, Alte returned to the bank to retrieve his property, and saw the clear transaction tube still sitting in place with a white envelope inside. When he opened the envelope, he found his driver’s license -and sixty-five cents. Alte immediately alerted bank personnel about the missing $1,185, and contacted local police.
The Hazlet police reviewed the bank’s surveillance video for the drive-up area, and observed respondent in a white BMW automobile taking cash out of the transaction tube, counting it, and returning the envelope containing Alte’s driver’s license and sixty-five cents in change. Respondent, who was driving the very next automobile to move through that lane after Alte, then drove away without conducting a transaction.
Respondent did not return the cash to TD Bank.
Two weeks later, on March i0, 2015, police received information from TD Bank identifying respondent as the driver of the white BMW. Once contacted by police, respondent went to the police station, cooperated fully with police, and admitted having taken the $1,185 on February 25, 2015. Respondent explained his actions to the police as follows:
Okay. And there were -- I think there’s three lanes open; two of the lanes were full, so I went into the open lane. And in the open lane I went to put my deposit in and when I opened the container to put my money in, my checks in with my deposit slip, there was cash in there. And I didn’t know what to do. And I had a momentary lapse of reason, and it was just sitting there, and I made a bad decision and I decided to -- to take the money, because it was there.
He was charged with theft of mislaid property and completed a pretrial intervention program.
The DRB on sanction
Here, although respondent’s criminal act was serious, it was also spur-of-the-moment, and not a premeditated act, as was the conduct in the suspension cases. In mitigation, respondent was remorseful, self-reported~his conduct to the OAE, completed PTI, and paid full restitution to the victim. Finally, respondent has no prior discipline in over thirty years at the bar.
The New Jersey Supreme Court agreed. (Mike Frisch)