Johnson, Matter of
| Decision Date | 30 January 1987 |
| Citation | 520 A.2d 3,105 N.J. 249 |
| Parties | In the Matter of Hubert T. JOHNSON, An Attorney-at-Law. |
| Court | New Jersey Supreme Court |
Robyn M. Hill, Deputy Ethics Counsel, Trenton, on behalf of the Office of Attorney Ethics.
Richard R. Width for respondent (Lindabury, McCormick and Estabrook, Westfield, attorneys).
Acting on a presentment filed by the District V-A Ethics Committee (Essex DEC) and five presentments filed by the District XII Ethics Committee (Union DEC), the Disciplinary Review Board (DRB) determined that respondent, Hubert T. Johnson, had committed numerous ethical infractions. Specifically, the DRB concluded that respondent failed to carry out contracts of employment, in violation of DR 7-101(A)(2); that his misconduct demonstrated a pattern of neglect in his handling of clients' legal matters, contrary to DR 6-101; and that he kept retainers without performing services therefor, commingled clients' trust funds, and failed to account to his clients as required by DR 9-102, all of which reflected adversely on his fitness to practice law. See DR 1-102(A)(6). Because these professional delinquencies are alleged to have occurred between 1978 and 1982, respondent's conduct was governed by the precepts set forth in the Disciplinary Rules then in effect rather than in the Rules of Professional Conduct, which were adopted on July 12, 1984, to be effective September 10, 1984. See Rule 1:14.
Most notably, the DRB found that in respect of the three charges involving unauthorized use of clients' funds and misappropriation--the Fluker, Mack, and Briggs matters addressed below--there was "no evidence that respondent intentionally or knowingly misappropriated clients' funds," and hence the disbarment rule of In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979), did not obtain. The DRB unanimously concluded that respondent's ethical transgressions warranted his being suspended from the practice of law for three years retroactive to the date of his temporary suspension, December 16, 1982, and that he should not be readmitted until he reimburses the Clients' Security Fund the full amount of $29,501.68 paid out by the Fund to eleven claimants, of which $13,672.94 had been paid back to the Fund by the date of the DRB's Decision and Recommendation.
The Office of Attorney Ethics (OAE) resists the DRB's recommendation of a three-year suspension. It seeks respondent's disbarment, based on "overreaching * * * and, most seriously, multiple instances of post-Wilson misappropriation of client trust funds." Our independent review of the record does not satisfy us that there is clear and convincing evidence of respondent's knowing misappropriation of funds held in trust for clients. We therefore accept the DRB's recommendation for discipline short of disbarment.
Because our concern is concentrated on the misappropriation cases, we pause on the complaints that involve failure to carry out contracts of employment, failure to communicate with clients, and conduct amounting to a pattern of negligence--the Ashford, Howell, and Bunn matters--only long enough to record our conclusion that the record demonstrates those infractions, except in the Ashford case, by clear and convincing evidence. The Ashford matter we see as a fee dispute involving at most a misunderstanding of the terms of the retainer agreement. Respondent has acknowledged that he owes Mrs. Ashford a refund, the prospects of collecting which are remote, at least at this time, in view of respondent's indigency.
The misappropriation cases, three in number, involve respondent's clients Fluker, Mack, and Briggs. We recite the pertinent facts separately.
Respondent represented Runette Fluker, guardian ad litem of Sherri Fluker, an infant, in her claim against one Elton Hill and the City of Newark. The case was settled for a total of $20,000. On November 17, 1980, Judge Margolis entered judgment in favor of Sherri Fluker for $10,901.68, representing the infant's share of the proceeds. The order for judgment required that the infant's share be deposited with the Essex County Surrogate, to be maintained by the Surrogate and the guardian ad litem in an interest bearing account. The City mailed its check for $20,000 payable to respondent and Runette Fluker as guardian ad litem, on January 13, 1981. The check was endorsed and respondent deposited it in his trust account the following day, January 14, 1981.
Respondent did not thereafter deposit the funds with the Surrogate or otherwise bring them under the Surrogate's control. Letters dated November 4, 1982, and November 5, 1982, from Judge Scalera and the Essex County Surrogate respectively, inquiring about the infant's funds went unanswered. On December 9, 1982, Judge Scalera signed an order directing respondent to show cause why he should not be compelled to comply with Judge Margolis's prior order. Thereafter Judge Scalera directed respondent to deliver $10,901.68 to the Surrogate. Respondent failed to comply with that order, wherefore yet another order was entered, requiring respondent to pay $7500 to the Surrogate by February 17, 1983, on account of the $10,901.68 judgment, which by that time had accumulated an additional $3,208 in interest. Respondent deposited the $7500 on February 22, 1983. On April 6, 1983, Judge Scalera entered a consent judgment against respondent for $6686.68, the monies withheld by respondent, plus interest. Additional interest was to be accrued until the judgment was satisfied. When the ethics complaint was filed on June 1, 1984, the judgment had not yet been paid, but respondent deposited the funds with the Surrogate around September 1984.
Mack, like Fluker, involves funds of an infant. On April 5, 1982, Judge Harth entered judgment in favor of Rahin Mack, an infant, for $7,153. The order required that the funds be deposited with the Essex County Surrogate for the benefit of the infant. Respondent thereafter failed to file guardianship papers, so on October 14, 1982, the Surrogate requested information concerning those documents. Respondent did not comply with the request, nor did he respond to a letter of October 21, 1982, from the then-Division of Ethics and Professional Services (now the Office of Attorney Ethics) asking for an explanation of the failure to file a guardianship complaint and for an accounting of the proceeds of the settlement.
On November 1, 1982, respondent delivered his attorney's check in the amount of $7,153 to the Surrogate for the account of Rahin Mack. The bank returned the check for insufficient funds. An accounting firm's audit of November 5, 1982, disclosed that respondent did not maintain a client ledger book supporting his trust account activity, as required by Rule 1:21-6, nor had he ever deposited the Mack funds into his trust account or disbursed any trust funds for the benefit of Rahin Mack.
Thomas C. Briggs, Jr. retained respondent on April 22, 1978, to commence a guardianship proceeding relating to his father and to file a civil action on behalf of Mr. Briggs, Sr. against the Department of Corrections and the Parole Board. Mr. Briggs, Sr. was at that time confined in the New Jersey State Prison system and experiencing poor health. Respondent prepared a Complaint seeking his appointment as guardian of the person and property of Thomas C. Briggs, Sr., with a renunciation filed by Thomas C. Briggs, Jr. Before respondent could begin to function as guardian, Mr. Briggs, Sr. died.
Thereafter respondent took control of funds of the decedent on deposit in a Trenton bank, as well as a parcel of real estate owned by decedent. His agreement with the Briggs family was that in addition to acting as administrator and attorney for the estate, he would pursue the action against the state agencies for their alleged mistreatment of Mr. Briggs, Sr. There was an agreed retainer of $3500 for services in connection with the estate; the law suit was to be handled on a contingency basis.
Respondent, in his capacity as administrator, withdrew $4,617.16 from the Trenton bank account, the total balance in which was $9,234.33. He used $3500 of the withdrawn funds as his retainer and an additional $600 for reimbursement of expenses. The balance of $517.16 he deposited in an estate checking account. After the estate was audited and the inheritance tax filed, respondent withdrew $4782.87 from the Trenton savings account and deposited it in the estate checking account.
Thereafter, Thomas C. Briggs, Jr. filed an ethics complaint, charging that respondent had not kept him informed of the status and progress of the law suit, had withdrawn funds from the estate for his own use and without court approval, and had failed to make any accounting of the estate funds. The Division of Ethics and Professional Services obtained an audit of the estate accounts, which disclosed that through an error by the bank, two bad checks that had been issued to respondent for unrelated fees, totalling $1002.00, were incorrectly debited and charged to the estate account rather than to respondent's business account. An inquiry of respondent produced his promise to redeposit or return the $1002.00 to the estate account, but as of the date of the Union DEC hearing in October 1984 the monies had not been refunded. The audit further revealed that respondent did not maintain separate ledger accounts for clients' trust funds, disbursed funds from the estate account and his trust account without any notations of what the disbursements were for, and did not keep any trust ledger page for the Briggs matter.
Respondent acknowledges that he misused clients' funds, that he was out of trust in respect of the Fluker, Mack, and Briggs matters, that he commingled clients' funds, that he failed to account, and that he did not maintain the books and records required by the Disciplinary Rules. He claims, however, that the admitted...
To continue reading
Request your trial
-
Konopka, Matter of
...applied uniformly. See In re Librizzi, 117 N.J. 481, 569 A.2d 257 (1990); In re Gallo, 117 N.J. 365, 568 A.2d 522 (1989); In re Johnson, 105 N.J. 249, 520 A.2d 3 (1987). At the same time, we have not retreated one bit from the principle that knowing misappropriation, when shown by clear and......
-
In re Wade
...on in one's trust account will not be deemed a shield against proof of what would otherwise be a ‘knowing misappropriation.’ " 105 N.J. 249, 260, 520 A.2d 3 (1987) ; see also In re Skevin, 104 N.J. 476, 486, 517 A.2d 852 (1986) (defining willful blindness). Ignoring mail that contains finan......
-
Roth, Matter of
...is a thin one. "Proving a state of mind--here, knowledge--poses difficulties in the absence of an outright admission." In re Johnson, 105 N.J. 249, 258, 520 A.2d 3 (1987). However, this Court has noted that "an inculpatory statement is not an indispensable ingredient of proof of knowledge, ......
-
Gold, Matter of
...to act responsibly. Respondent constructed a "bizarre state of affairs" from which he could not extricate himself. Matter of Johnson, 105 N.J. 249, 258, 520 A.2d 3 (1987). In this case [T]he evidence about respondent's state of mind is no more compelling in the direction of knowledge than i......