Barry, Matter of

• Decision Date: 28 July 1982
• Citation: 90 N.J. 286,447 A.2d 923
• Parties: In the Matter of Thomas J. BARRY, an Attorney-at-law.
• Court: New Jersey Supreme Court

Page 286

90 N.J. 286

447 A.2d 923

In the Matter of Thomas J. BARRY, an Attorney-at-law.

Supreme Court of New Jersey.

Argued Jan. 26, 1982.

Decided July 28, 1982.

Robyn M. Hill, Trenton, for complainant, Disciplinary Review Board (Collette A. Coolbaugh, Secretary, Trenton, attorney).

Saverio R. Principato, Camden, for respondent.

PER CURIAM.

These disciplinary proceedings commenced with the filing of a complaint with the District IV Ethics Committee (local committee) by the law firm with which respondent, Thomas Barry, was associated. The firm charged Barry with a series of what can be described only as extraordinary and bizarre ethical transgressions that occurred between the latter part of 1974 and June 1979. One of the unusual aspects of the matter is that respondent not only admitted, in his answering pleading, the nineteen separate instances of misconduct set forth in the complaint, but in the interests of full disclosure acquainted the local committee with two additional transactions that he believed might involve ethical violations.

Respondent's defense was that he did not intentionally violate the Disciplinary Rules "because, as subsequent psychiatric evaluations confirmed, [his] actions were the result of psychic conflicts rather than a reflection of [his] intent to defraud either [his] partners or [his] clients." When the misconduct came to light in June 1979, Barry voluntarily withdrew from the practice of law and promptly obtained psychiatric aid. About nine months thereafter he resumed practice as an associate in another lawyer's office and continued in therapy until August 1980, when he was discharged from further regular treatment. He continues to practice in the association he formed in April 1980.

After a hearing the local committee filed a presentment charging respondent with violations of numerous ethical rules. The DRB conducted its own hearing, on the completion of which it recommended a private reprimand. We have made an independent review of all the evidence and have concluded that a suspension is warranted.

I

After a period of clerkship while he was attending law school, respondent became employed with a Woodbury law office in August 1974. He had taken the bar examination but was not sworn in as an attorney until December 1974. Even before being admitted respondent was given responsibility for some files, and ultimately the number of cases he was charged with handling reached about 200.

One of the first matters entrusted to respondent--and one of the first with which he had difficulty--was given to him by a principal in the firm about three or four weeks before his admission date. It involved a claim of A.C.M. Realty Co., Inc. for about $18,000 in real estate commissions. Between 1974 and 1979 Barry told the client's principal of numerous trial listings and ongoing negotiations, and twice had the client travel to the courthouse. In truth no suit had been started and there had never been any negotiations.

Respondent's fabrications in the A.C.M. matter did not come to light until June 1979. The circumstances of that revelation are perhaps best appreciated by reference to the testimony of one of the law firm's principals before the local committee:

One day * * * [the client] came storming in the office and demanded to see me and indicated to me that he had been sitting at court several times. On one occasion is called back from a vacation that he had been on because the case was listed for trial and he didn't understand why it was listed so many times and why it took so long. At this point I think it was about four years or so that the case had allegedly been in process. Maybe longer.

At this point I asked Tom [Barry] to get the file and come in. He brought in a file jacket with, I believe, was the original letter that I had gotten in the file and turned it over to Tom and I said, "Bring me the whole file." I looked at it and saw the original letter from when I turned it over to him and asked him for the balance of the file and he said, "That's it."

He didn't do anything on the file. I gulped, like I am gulping now, and asked if he had filed the complaint and he indicated that he hadn't, and at that point I called my partners * * * to come down to the office and indicated, "I think we have a problem."

Indeed they did. As the tangled skein unravelled, it appeared that at least eighteen additional files that had been entrusted to respondent were in disastrous shape. Of these, eight were characterized by variations on the A.C.M., Inc. theme--that is, Barry told the client that their cases were in various stages of progress when in fact he had taken no steps to advance the clients' interests. In another eight cases respondent had permitted the statute of limitations to run against the clients. In two other cases Barry had borrowed money from the clients and had performed legal services for them as an offset against the loan without the knowledge of any member of the firm, thereby violating his financial arrangement with the office, which entitled him to keep a percentage of the fees he generated with the balance going to the firm. Two additional instances of misconduct, voluntarily disclosed by respondent, involved complicated schemes by which he hid the fact that he had not attended to the clients' affairs and had even advanced his personal funds--and, in one instance, cosigned a $7000 note--to placate the clients.

The response of the law firm to this dilemma was immediate and, as far as the clients were concerned, effective. The principals called in every client involved in respondent's files and explained the true status of his case. They structured a "crash program" to bring the mishandled files to a rapid conclusion, in many instances by instructing the clients to seek independent counsel and then settling the cases out of their own pockets. The result was that no client sustained any pecuniary loss. In addition, the firm's principals persuaded respondent to undergo psychiatric therapy with Dr. Scott Sibert.

As for Barry, in addition to seeking psychiatric assistance he immediately withdrew from the practice of law, as we have indicated above. To his parents he made a clean breast of the whole sorry affair, and his father and brother helped him devise a plan to relieve his mountainous indebtedness, since his assets, including the value of his pension and profit-sharing plan and receivables from his share of legal fees, had been depleted by the various claims. He cooperated immediately and completely with the local committee. He did not return to the practice until he and his physician were confident he could cope with the pressures of practice. The burden of his work in his new association is substantially lighter than that which he was attempting to sustain during the 1974-1979 period, and he appears to be bearing it successfully. There is no allegation of misappropriation of funds.

The presentment issued by the local committee concluded that respondent had violated DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit and misrepresentation); DR 1-102(A)(6) (conduct adversely reflecting on fitness to practice law); DR 6-101(A)(1) and (2) (gross negligence and exhibiting a pattern of negligence); DR 7-101(A)(1), (2) and (3) (failure to seek lawful objectives of client, failure to carry out contracts of employment and prejudice to client's case); and D...