Imbriani, Matter of

Decision Date27 June 1997
Citation694 A.2d 1030,149 N.J. 521
PartiesIn the Matter of Michael R. IMBRIANI, an Attorney at Law.
CourtNew Jersey Supreme Court

Richard J. Engelhardt, Assistant Ethics Counsel, argued the cause on behalf of the Office of Attorney Ethics.

Mark D. Imbriani, Somerville, argued the cause for respondent.

PER CURIAM.

This disciplinary proceeding arises from a motion filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB), seeking final discipline of former Superior Court Judge Michael R. Imbriani (respondent). The motion was based on respondent's plea of guilty to the offense of theft by failure to make required disposition of property received, in violation of N.J.S.A. 2C:20-9. The DRB recommends that respondent be disbarred.

I

Michael R. Imbriani was admitted to the New Jersey bar in 1957. For almost 20 years, he was a Judge of the New Jersey Superior Court. For 30 years, he assisted in the control and management of the financial affairs of the Community Medical Arts Building, Inc. (CMAB), a real estate corporation that leased offices to professionals.

We refer to this Court's removal decision, In re Imbriani, 139 N.J. 262, 652 A.2d 1222 (1995), for a description of events leading up to respondent's criminal conviction. CMAB was formed by respondent and others in 1963. Respondent acquired 12.5% of the issued common stock at that time. In 1970, he transferred his stock in CMAB to his wife. By 1982, respondent's wife owned forty percent of the stock because the stock of many shareholders had been purchased and the shares retired. The remaining shares were owned by three doctors.

From its inception, respondent helped manage CMAB and its primary asset, the Community Medical Arts Building in Bound Brook. Respondent collected rent checks from the corporation's bookkeeper, helped the bookkeeper pay CMAB's bills, and helped the bookkeeper file tax returns. He also assisted in the maintenance of the building.

In April 1992, the stockholders discovered that the mortgage on the building was close to foreclosure. They asserted that between April 30, 1989 and June 1992, respondent misappropriated rent and real estate tax checks payable to CMAB for his own use by endorsing such checks and depositing the monies into his personal account. In addition, they charged that between June 1987 and June 30, 1992, respondent misappropriated funds from CMAB's corporate bank account by withdrawing funds and using the money for his personal non-corporate purposes, issued corporate checks to payees whom CMAB owed no money, endorsed these checks in their names and used the funds for his own personal purposes, and that respondent removed funds from a CMAB investment account for his own personal uses without stockholder authorization.

As part of a plea agreement with the state, respondent pled guilty on June 16, 1994, to a one-count accusation charging theft by failure to make required disposition of property received in the third degree in violation of N.J.S.A. 2C:20-9. Respondent was also permitted to make application to the Pretrial Intervention Program (PTI). The State agreed not to object to respondent's participation in PTI, should respondent be admitted, on the recommendation of the Program Director, contingent on the following: respondent pay restitution to CMAB in the amount of $173,000; respondent pay approximately $5,000 in state taxes on funds unlawfully obtained; and that respondent perform 300 hours of community service. The Program Director, however, rejected respondent's application.

Respondent sought Law Division review of the Program Director's decision. In the light of the Director's rejection of respondent's application, the State opposed respondent's Law Division request for admission to PTI. In a reported decision, the Law Division judge upheld the Program Director's determination. State v. Imbriani, 280 N.J.Super. 304, 654 A.2d 1381 (1994).

On March 8, 1995, the Law Division sentenced respondent to five years' probation and 300 hours of community service. Because respondent had already repaid approximately $85,000, he was ordered to make restitution in the amount of $88,002.93 and pay $5,314 in taxes on the illegally obtained funds. After sentencing, respondent appealed the denial of his application for PTI to the Appellate Division. Finding that, "[i]n April 1992, the stockholder[s'] ... investigation revealed that [respondent] had diverted [money] in tenant rent and real estate tax checks ... to his personal bank accounts," the Appellate Division affirmed respondent's denial of admission to PTI on June 3, 1996. State v. Imbriani, 291 N.J.Super. 171, 174-75, 677 A.2d 211 (App.Div.1996).

II

As noted, when respondent committed his offense, he was a New Jersey Superior Court Judge. He retired from the bench on May 1, 1994. Following his June 1994 guilty plea, respondent was temporarily suspended from the practice of law. The Advisory Committee on Judicial Conduct (ACJC) began an investigation into the matter. After conducting a hearing, the ACJC issued a Presentment finding that respondent had violated Article 6, Section 6, Paragraph 6 of the New Jersey Constitution, which prohibits members of the judiciary from engaging in business, and various Canons of the Code of Judicial Conduct requiring judges to observe high standards of conduct, to respect and comply with the law; to refrain from financial and business dealings interfering with and exploiting the proper performance of judicial duties; not to serve as an officer, director, manager, advisor, or employee of any business; and not to receive compensation for extrajudicial activities.

Relying on the ACJC's Presentment, this Court filed a complaint permanently to remove respondent from judicial office. See N.J.S.A. 2B:2A-3; R. 2:14-1. Respondent consented to his removal from judicial office. On February 15, 1995, we issued our judicial removal decision. Imbriani, supra, 139 N.J. 262, 652 A.2d 1222. We said:

[W]e are satisfied that the ACJC's findings, as summarized in the Presentment, are amply supported by the evidence adduced at the hearing before the ACJC. We are fully cognizant of Respondent's long years of faithful and dedicated public service, and that Respondent has diligently and conscientiously discharged his judicial duties. However, our focus in this proceeding is determined solely by the public interest, and by our steadfast commitment to maintaining an independent and incorruptible judiciary. Respondent's conduct warrants his removal from judicial office. Respondent's resignation from judicial office effectuates his removal from the judiciary and vindicates our determination, based on the evidence before the ACJC, that Respondent's conduct is totally incompatible with continued judicial service. He shall not hereafter hold judicial office.

[Id. at 266, 652 A.2d 1222 (citations omitted).]

In this case, we must now decide whether to remove respondent from the New Jersey bar. In its decision recommending disbarment, the DRB did not conclude that a misappropriation from business associates would invariably require disbarment as under In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979). It was convinced, however, that respondent should be disbarred because the misconduct was "extreme and extended," the amount was substantial, and respondent "used various deceptive practices to accomplish the conversion of the funds." Finally, the DRB observed: "The Court has consistently subjected attorneys who commit acts of serious misconduct while serving in public office to stringent discipline, normally disbarment." In re Yaccarino, 117 N.J. 175, 197, 564 A.2d 1184 (1989).

III

Respondent disputes certain key facts and asks the Court that he be permitted to practice law. Respondent firmly denies that he ever misappropriated any funds, much less the sum of $173,000. First, respondent argues that he had total and complete control over the financial affairs of CMAB, that his business partners were uninterested in the day-to-day affairs of the corporation, and that they gave respondent absolute discretion in the management of the business. He claims that he was entitled to determine the rentals to be paid, the distributions to be paid out, what loans respondent would receive and when and how they would be accounted for at the time when the corporation would be sold. Respondent further maintains that

[i]t is undisputed that, other than some minor sums respondent used for his personal expenses, practically all of the funds received by respondent were loans which he was allowed for decades to take without the express approval of the president [of CMAB], Dr. Borow, but were clearly with [the president's] full knowledge and implicit approval at all times. It is beyond belief that respondent could act in the manner he did for decades without the knowledge and approval of [the president], a well-educated surgeon. Importantly, the reason why [the president] did not object to the loans taken by respondent is because ... [the president's] medical office received many and substantial trade-offs from this unusual arrangement.

Respondent maintains that the conclusions that he misappropriated funds were ill-founded factually and represent incorrect determinations drawn from his efforts amicably to resolve disputes with his former partners. He argues that he is being unfairly judged because of his status as a judge. For example, he asserts that the sums due from him to the partnership were shown as loans on the books of account of the business. Respondent argues that "a good faith effort on his part to pay his loans to CMAB has been misconstrued by the media and others to suggest that he committed a serious crime."

He states that he "unselfishly ran the corporation for thirty years without asking for or receiving a single dime for his services, [therefore] he obviously believed that the use of...

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