In re Pomper
| Decision Date | 12 August 2020 |
| Docket Number | Docket No. DRB 19-407 |
| Parties | In the Matter of Neal M. Pomper An Attorney at Law |
| Court | New Jersey Supreme Court |
Disciplinary Review Board
District Docket Nos. XIV-2015-0391E and XIV-2019-0136E
Ryan J. Moriarty appeared on behalf of the Office of Attorney Ethics.
Respondent appeared pro se.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a disciplinary stipulation between the Office of Attorney Ethics (OAE) and respondent. Respondent stipulated to having violated RPC 1.15(a) (commingling); RPC 1.15(d) and R. 1:21-6 (recordkeeping); RPC 8.4(b) (); and RPC 8.4(c) ().
For the reasons set forth below, we determine to impose a two-year, retroactive suspension.
Respondent was admitted to the New Jersey bar in 1982, the New York bar in 1981, and the Massachusetts bar in 1980. In 1986, he received a private reprimand for engaging in a conflict of interest. In the Matter of Neal M. Pomper, DRB 86-182 (December 23, 1986).
In 2004, respondent received an admonition for failing to set forth in writing the basis or rate of the fee in a post-judgment matrimonial matter, and for improperly agreeing to share his legal fee with another attorney. In the Matter of Neal M. Pomper, DRB 04-216 (September 28, 2004).
On February 10, 2009, respondent was censured for assisting his paralegal in the unauthorized practice of law, violations of RPC 5.5(a)(2) and RPC 8.4(a). Respondent directed the paralegal to attend a paternity hearing with a client, where the paralegal advocated in behalf of the client. In re Pomper, 197 N.J. 500 (2009).
On September 18, 2019, respondent was temporarily suspended from the practice of law based on the misconduct underlying this matter. He remains suspended to date. In re Pomper, 239 N.J. 566 (2019).
At all relevant times herein, respondent maintained an office for the practice of law in Haddonfield, New Jersey.
Respondent and the OAE entered into a disciplinary stipulation which sets forth the following facts in support of respondent's admitted ethics violations.
In 2011, after respondent's home was damaged in a flood, he contracted with Rivera Remodeling (Rivera) to remediate the water damage. At the time, respondent had a homeowner's insurance policy with Selective Insurance Company (Selective).
An employee of respondent, Larissa Sufaru, sent to Selective a fax purporting to be Rivera's invoice for remediation performed at respondent's home. Sufaru wrote "paid in full" on the invoice to reflect an alleged payment of $14,000 by respondent. After Selective learned, during its investigation, that Rivera had not prepared that invoice, Selective denied the claim.
On July 10, 2015, a superseding indictment issued by a grand jury in Middlesex County charged respondent with the following crimes: (1) third-degree conspiracy to commit insurance fraud, contrary to N.J.S.A. 2C:5-2; (2) third-degree insurance fraud, contrary to N.J.S.A. 2C:21-4.6a, N.J.S.A. 2C:21-4.6b, and N.J.S.A. 2C:2-6; (3) third-degree attempted theft by deception, contrary to N.J.S.A. 2C:2-4 and N.J.S.A. 2C:2-6; (4) fourth-degree uttering, contrary to N.J.S.A. 2C:21-1a(3) and N.J.S.A. 2C:2-6;1 and (5) fourth-degree forgery, contrary to N.J.S.A. 2C:21-1a(2) and N.J.S.A. 2C:2-6.
Although respondent initially was granted admission into the Pretrial Intervention Program, the Appellate Division reversed that decision and remanded the case for trial. Beginning on November 6, 2018, the Honorable Dennis Nieves, J.S.C. conducted a three-day bench trial. Sufaru testified at the criminal trial that, at respondent's direction, she created the $14,000 invoice and transmitted it to Selective. Respondent argued that Sufaru's invoice represented actual, post-flood repair work to the home for which he was entitled to reimbursement.
On March 20, 2019, Judge Nieves found respondent guilty of three crimes: third-degree conspiracy to commit insurance fraud, based on respondent's agreement with Sufaru to create and transmit a fraudulent invoice to Selective to receive insurance funds; third-degree insurance fraud, because he directed Sufaru to create a phony invoice for the purpose of obtaining a benefit from Selective; and third-degree attempted theft by deception, because, if Selective had relied on the phony invoice, respondent would have received funds from Selective to which he was not entitled. Judge Nieves found respondent not guilty of the forgery charge.
On August 1, 2019, Judge Nieves denied respondent's motion for a new trial and sentenced him to three, concurrent, one-year terms of probation with mandatory fines. At sentencing, Judge Nieves found several mitigating factors: (1) respondent's conduct neither caused nor threatened serious harm; (2) he did not contemplate that his conduct would cause or threaten serious harm; (3) he had no history of delinquency or criminal activity, and had led a law-abiding life for a substantial period of time before the commission of the present offense; (4) his conduct was the result of circumstances unlikely to recur; (5) he is particularly likely to respond affirmatively to probationary treatment; and (6) imprisonment would entail excessive hardship to him or his dependents.
Respondent stipulated that his misconduct constituted criminal conduct, in violation of RPC 8.4(b), and conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of RPC 8.4(c).
On August 28, 2018, the OAE sent respondent a random compliance audit letter requesting copies of certain financial records for the preceding twelve-month period. The OAE's audit of those records revealed the. following recordkeeping deficiencies: (1) client ledger cards not fully descriptive [R. 1:21-6(c)(1)(B)]; (2) legal fees were not deposited in the attorney business account (ABA) [R. 1:21-6(a)(2)]; (3) improper ABA account designation [R. 1:21-6(a)(2)]; (4) improper attorney trust account (ATA) designation [R. 1:21-6(a)(2)]; (5) noncompliant ABA imaged-processed checks [R. 1:21-6(b)]; (6) noncompliant ATA imaged-processed checks [R. 1:21-6(b)]; and (7) improper electronic transfers made from the ATA [R. 1:21-6(C)(1)(a)].
In a January 16, 2019 letter to respondent, the OAE outlined the deficiencies and notified him that, within forty-five days, he must acknowledge receipt of the correspondence and inform the OAE, in writing, of his intended corrective measures.
On March 20, 2019, the OAE requested respondent's explanation for the January 16, 2019 deficiencies and sent a second letter scheduling a demand audit interview. On March 25, 2019, respondent denied having received the OAE's January letter; therefore, on that same date, the OAE again sent the letter to him. On May 13, 2019, respondent provided a written explanation for the deficiencies and a corrective plan.
Respondent stipulated that, during two prior audits, the OAE had provided instruction to him in respect of the requirements of the recordkeeping Rules. Yet, once again, he failed to comply with his recordkeeping obligations, in violation of RPC 1.15(d) and R. 1:21-6. Specifically, respondent previously had been the subject of random audits in 1987 and 2013. On April 10, 2013, respondent had certified to the OAE that he corrected the 2013 deficiencies.
Further, the 2018 audit revealed that, on December 28, 2017, respondent deposited a $5,675 check for legal fees from a client, Thomas Paddock, in his ATA. On January 5, 2018, respondent transferred those funds to the ABA. In a January 4, 2019 letter to the OAE, respondent explained that he had deposited the check in the ATA:
At an April 29, 2019 demand audit interview, respondent again admitted that he had deposited the fee in the Paddock matter in his ATA to avoid paying taxes on those fees in tax year 2017, "as per the advice from his accountant." He further admitted that, on occasion, if he received a legal fee at the end of a calendar year, he would place the check in his desk drawer and deposit it in the ABA at the beginning of the new calendar year. The Paddock check was an exception, because he did not want to leave it in his desk while he traveled. Respondent agreed that, going forward, he would not delay the deposit of fees in his ABA. In the stipulation, the OAE acknowledged that it did not find clear and convincing evidence of unethical conduct sufficient to support an ethics violation for prior instances of tax evasion.
Respondent stipulated that, by depositing the Paddock fee in his ATA, instead of his ABA, he commingled personal and client funds, a violation of RPC 1.15(a). Further, respondent stipulated to having engaged in conductinvolving dishonesty, fraud, deceit, or misrepresentation by placing the Paddock fee in his ATA in an attempt to "reduce his tax liability for 2017 and receive the benefit of a presumably more favorable tax bracket in 2018."
The OAE cited a number of insurance fraud and tax evasion cases in support of its recommendation of a one-year to eighteen-month suspension. The OAE likened the insurance aspect of this case to In re Fisher, 185 N.J. 238 (2005). In respect of respondent's admission that he acted dishonestly by placing the 2017 Paddock fee in his ATA, the OAE noted that he was not charged with tax evasion and...
To continue reading
Request your trial