Friday, November 9, 2018

Gallipoli And The Fog Of Practice

A fascinating (and frankly disturbing) tale is told in a recent report and recommendation for a reprimand adopted by the New Jersey Supreme Court.

I recently posted some criticism of a District of Columbia decision as unduly considerate of the interests of lawyers over the protection of the public.

The disposition of that case was an unfortunate byproduct of a rogue hearing committee and not reflective of a court that almost invariably strikes an appropriate balance between the competing interests posed in bar discipline matters. 

Things are far worse in New Jersey.

The Disciplinary Review Board recounts an attorney's interactions with the law practice of his deceased best friend and his rather curious formation of a formal law partnership at or about the time he died.

Respondent and Keith Burns, Esq. were best friends, who enjoyed a relationship forged in the 1990s, during their hectic, overlapping New Jersey municipal court practices. Respondent  fondly described their friendship, recounting their daily telephone conversations; parallel interests including golf, baseball and gambling; and joint family vacations. Burns was both a certified civil and matrimonial attorney, and focused his practice primarily on divorce cases.

When Burns received his fatal diagnosis, Respondent (with the consent of the law that employed him as an associate) began to assist Burns

In October 2010, respondent began assisting with Burns Law work, with the consent and support of Garces & Grabler. In April 2011, respondent moved into the Burnses’ home in Chester. He was going through a bitter divorce, needed a place to live, and was willing to help [Burns's wife] Angela care for Burns.

There was disputed testimony as to whether Respondent and Burns became partners as nothing was reduced to writing. 

The findings on that key issue (as they so often do in bar discipline) favored the accused attorney.

On June 4, 2011, Burns died. Respondent testified that, by this time, he "was running the law practice" known as Burns Law. Respondent conceded, however, that he was formally associated with Burns, at most, from May 31 to his death on June 4, 2011.

Five days.

On June 14, 2011, ten days after Burns’ death, respondent formed Burns & Speck Attorneys at Law, LLC (Burns & Speck), of which he was the sole owner. The firm used the same office, in Iselin, that Burns Law had occupied.

He assumed control over the Burns Law practice,  taking over the firm's accounts receivable and debts owed. 

Respondent did manage to persuade a court to appoint him as the attorney-trustee for Burns Law.

Despite the overtures that respondent had made to the court in his appointment request, he neither conducted an accounting of Burns Law’s assets and debts, as required of an attorney-trustee, nor paid any of Burns Law’s fee arbitration or client debts.

Angela learned of the court appointment when respondent locked her out of the law offices. 

The specific charges involved estate funds that had been held in the Burns trust account for many years. 

The board rejected the Office of Attorney Ethics efforts to establish disbarable conduct

Given the unique circumstances of this case, where respondent was attempting to navigate (i) the formation of a new law firm (2) the assumption of Burns Law’s debts and continuing  client obligations; and (3) the death of his best friend all within a relatively short period of time, we conclude that the OAE’s Siegel theory of knowing misappropriation is not supported by clear and convincing evidence. Rather, respondent’s conduct, while not on all fours given the unique facts of this case, was most akin to the facts of Bromberg, in that respondent had a reasonable belief of entitlement to use the funds, based on his partnership interest in Burns & Speck.

Unique circumstances is putting it mildly. 

And isn't there a wee problem with establishing and assuming a partnership with a dead man?

The widow Burns certainly thought so. 

Angela maintained, however, that the partnership had never actually been formed. Moreover,  she testified that respondent  had promised her that he would take care of her., representing that she would receive about $100,000 after he wound down Burns Law. Over time, she claimed, that $100,000 promise shrunk to $65,000, then to $50,000, and, ultimately, respondent claimed that she actually owed the firm money.

The DRB bought his story and excused his conduct as they put it as occurring

In the fog within which he was operating.

Perhaps a fog of his own making but the key finding absolved him

Given our finding that a partnership existed between Burns and respondent, prior to Burns’ death, we further determine to dismiss the charges that respondent’s use of the firm name "Burns & Speck" on letterhead and advertising.

As per usual in New Jersey DRB matters, member Gallipoli sees through the fog

Member Gallipoli voted to recommend respondent’s disbarment, finding that respondent offered no evidence of entitlement to the Katenkamp funds that he took, which he understood to be legal fees earned by Burns decades prior to the formation of their partnership. Given those circumstances, Member Gallipoli concluded that respondent’s wielding of the partnership agreement with Burns, as a sword, to defend the Wilson charge, while providing sworn testimony that he believed the Katenkamp funds were a legal fee earned by Burns, leads to the inescapable conclusion that respondent must fall on that sword.

In New Jersey, disciplinary swords are converted into plowshares.

If Member Gallipoli's views held sway, the legal profession in New Jersey would be far more honorable. 

Note: The links do not seem to work. The case is Matter of Michael Speck. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/11/a-fascinating-tale-is-told-in-a-recent-report-and-recommendation-adopted-by-the-new-jersey-supreme-court-the-disciplinary-r.html

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