*1 GREENBERG, IN THE MATTER JOEL OF AN AT ATTORNEY LAW. July
Argued September 1997 Decided 1998. *2 Counsel, Sweeney, Deputy argued cause Michael J. Ethics Attorney on behalf of the Office of Ethics.
Joseph Kenney argued respondent (Kenney H. the cause for & brief). DeSantis, Kearney, attorneys; William J. on the curiae, Jay argued New H. Greenblatt the cause for amicus (Wilentz, Jersey Spitzer, Bar & attor- State Association Goldman counsel; neys; Dennehy, Mr. and Frederick J. Mr. Greenblatt brief). Greenblatt, Dennehy Megan Gajewski, on Mr. K PORITZ, C.J. pursuant
This matter is before the Court for review to R. 1:20- 16(a) (“DRB”) Disciplinary of a of the Board decision Review recommending respondent, Greenberg, A. Joel be disbarred. provided by Greenberg on on Based information its own (“OAE”) investigation, Attorney the Office of Ethics filed a formal complaint against respondent, alleging of Rule violations of Profes 8.4(c) (“RPC”), involving dishonesty, sional Conduct conduct fraud, deceit, misrepresentation. complaint asserted that, during period sixteen-month fraudulently personal obtained law firm funds for his own use. Special appointed Before the Ethics Master to hear the matter for Committee, Greenberg the District XIV Ethics asserted he deprived ability from a mental illness which him of “suffer[ed] *3 comprehend doing prevent what he was the will it.” The Master, DRB, Special Ethics and later the found that “by competent had not proofs demonstrated medical that [he] competency, comprehension magni suffered a loss of or will of a egregious clearly tude that could excuse misconduct Jacob, knowing, purposeful.” 132, 137, volitional and In re 95 N.J. (1984). A .2d 498 Greenberg find that knowingly We Joel A. caused firm to belonged disburse monies to him that firm to the without the partners knowingly consent of his misappropriat law and that he ed fees due the firm to his own use. We reaffirm the rule set Wilson, (1979), forth in In re N.J. A.2d 1153 Siegel, (1993), in extended misappropriation invariably of client or law firm funds will almost in result disbarment. We hold that is in disbarment warranted this case.
I Greenberg practice A. Jersey Joel was licensed to in law New 22, 1993, September from 1975 until when he consented to the temporary suspension suspen- of his At license. the time of his sion, Horn, partner Gomy, Greenberg Goldberg, was a firm”) Daniels, Paarz, (“Horn, Goldberg” Plackter & or “the Weiss City. Greenberg primarily represented in Atlantic health-care providers malpractice actions. medical 1991, Greenberg
In June received a referral from Rochlin & Settleman, firm, Maryland accepted representation a law v. Harrison of Charles and Theresa Harrison the matter $42,500, Cairn. When Greenberg settled the matter for a total of requested company, he two checks from the insurance one for $35,000 payable made to the Harrisons and one for made $7500 payable Greenberg personally. company The insurance refused and, instead, $21,250 payable issued two checks for to both Green- berg depositing than in the and the Harrisons. Rather the checks Harrisons, issuing trust account and a firm check to the firm’s Greenberg endorsed the cheeks and forwarded them to the Harri- they accompanied by request sons return a check in the complied, amount of made out to him. When the Harrisons $7500 Greenberg kept knowledge the authorization or the fee without his law firm. fee, subsequently sought referral
When Rochlin & Settleman request bookkeeper, firm Greenberg presented a check to the 25, 1992, payable to Rochlin & dated June the amount $3000 form, request Greenberg indicated that Settleman. On the expert pursuant check was needed for the “reimbursement of fees accompa- Flynn.” the transmittal letter Court Order —Dr. form, nying request Greenberg explained that the check was Pasqua- expert testimony” for “reimbursement of the matter *4 Schwing. le v.
Thereafter, Greenberg August August from 1992 until $27,025 personal firm for an additional in funds his obtained law knowledge or consent. The method he used use without the firm’s simple: requests disbursement he submitted a series false bookkeeping department. Respondent would either to the firm’s secretary firm check or dictate the instruct a that he needed law request tape, expense an account voucher check on after which by Greenberg prepared signed, either himself or would be support request, secretary on his behalf. the cheek Greenberg prepare a transmittal to would also letter addressed checks, Greenberg received the firm he would payee. Once personal deposit them and retain the funds for his use or endorse corporate checking in account of Medical them the Southern Shore (“SSMS”), entity incorporated by Greenberg in Supply an Decem- Respondent eight similarly ber 1992. submitted such structured preceding up August months requests the twelve 1993. requests by Greenberg
Three of the false disbursement made 31, 1992, sought payment physicians. August were to local On expense Greenberg presented an voucher in the amount of $2000 Marino, payable Denay along Dr. with a transmittal letter fee; explaining payment deposition that the check constituted for a 14, 1992, Greenberg request on a cheek December submitted Forman, payable purportedly the amount of to Dr. Alan $2500 and, 23, 1993, payment expert testimony; July Greenberg on requested payable a check in the amount of to Dr. Glen $1875 expert Greenberg Budnick for fees. endorsed the Marino by forging physicians’ signatures. Forman cheeks Because his home, part-time for Greenberg wife worked Dr. Budnick at had stamp, Doctor’s access business which he used to endorse knowledge or the Budnick check without Budnick’s his wife’s cases, Greenberg kept In all consent. three the funds for his own personal use.
Greenberg requested holding also a check made out to the bank 14, 1992, mortgage. September Greenberg requested his On payable Savings, purpose to Investor with the submitted $2900 paying the State Division of Taxation the matter of the estate uncle, Instead, Stanley Greenberg. sent the check Savings mortgage payments to Investor to cover three months of on his home.
Greenberg requests made four additional fraudulent cheek dur- ing period, payment this each for At the District SSMS. Ethics *5 hearing, Greenberg denied that corpora- SSMS was “a fictitious up Horn, tion” set purpose laundering for the Goldberg checks.1 He incorporated claimed that he SSMS with his wife and person a third legitimate as a business for the sale of medical supplies physicians. conceded, however, He that the business firm, dormant, that, was not a client of the aside from “minimal record, transactions” of which proof there is no in the activity “it’s [sic] business consisted accepting pay- of—of these paying ments and in turn respondent. them out” to The record Greenberg discloses that a corporate established checking account spring 1993, just in the prior SSMS making his first request payable check corporation. By to the requests 20, 28, May 17, 1993, dated May and June Greenberg received, endorsed, deposited SSMS checks the amounts of $1750, $3500, $12,500, respectively. Though the initial bank available, statement for the SSMS account is not the bank state- May ment for through June 1993 shows that $12,500 deposited cheek was and that the account balance at that $12,821.65. time was The June 30 statement also shows that Greenberg issued two checks on this balance: one for $3750 payable 18, 1993, to himself on June payable and one for $9000 Savings Investor noting on June portion the memo June, the cheek that it May, was intended to July cover his mortgage payments.
By mid-June, $34,525 Greenberg fraudulently had obtained belonged Then, 17, 1993, to his law firm. August on he made his request payable final check $23,500. in the SSMS amount of The transmittal letter indicated that the disbursement was the “final purchase by Electric, installment” for the Sawyer firma client, Colavito, of an interest SSMS. This time William Officer, firm’s Chief Financial questioned Greenberg about his request. Respondent explained that the disbursement was to be 1 Greenberg hearings. did not at the district ethics These testify representa- proceedings. tions were made his counsel in the course of the *6 placed Sawyer Electric $90,000 from retainer against a
counted year. When Horn, account earlier Goldberg business against firm charged could be the transaction on how pressed I this said, out about anyone “If ever found funds, Greenberg to the conversation reported the Colavito would be disbarred.” Plackter, met subsequently who partner, Jack managing firm’s requests check respondent’s firm reviewed Greenberg. The with disburse- the three SSMS and discovered prior six months for the endorsements, took no action. apparently but with his ments 1993, Greenberg ap- later, September on Three weeks during a function attorney Paul D’Amato proached friend and parking lot men retired to synagogue. The two began cry where, Greenberg reports, D’Amato privacy You friend, doing. I’m shake, “I know what saying to don’t Greenberg would help, agreed to but got help me.” D’Amato wife, Greenberg’s found wrong. explain not what was D’Amato D’Amato at his office Greenberg meet to have promised who morning. following Greenberg that he day, admitted the next
At D’Amato’s office that he could He told D’Amato law firm funds. had taken had taken but did how much he it started or remember when he illegitimate vouchers. When accident case and mention an called another friend crying, D’Amato in a corner huddled Goldstein, respondent. As Green- help him with attorney, Ed I said, practice of law. calmed, away from the me berg “[G]et he anymore.” doing I’m I know what don’t think and, partners permission to call his Greenberg gave D’Amato Horn, afternoon, Goldberg partners met with three later that point, At that at D’Amato’s office. Greenberg and D’Amato however, not' discuss the Greenberg incoherent and could Dr. Norman S. Chazin psychiatrist matter. D’Amato also called meeting Greenberg began friend. to obtain treatment for his Greenberg’s permission, day. following With Dr. Chazin 14, 1993, and the September on contacted the OAE D’Amato No September 1993. County on Atlantic Prosecutor’s Office charges were filed firm prosecutor. or the Respondent made full restitution to the firm. September On he entered into a consent temporarily suspending order his license.
II The OAE filed a formal complaint against Greenberg on Janu- 13,1995. ary During days hearings four in November 1995 and January Master, Special before a Greenberg present- Ethics wife, friends, testimony ed the of his attorneys, fellow and two witnesses, expert Gary Dr. Chazin and Dr. Michael Glass. The testimony OAE offered the of Dr. Robert Sadoff. friends,
Family, attorneys and fellow testified Greenberg’s *7 reputation community in his changes and to in Greenberg’s per- sonality early August from as up August as Many 1993. Greenberg’s vouched for reputation unquestioned excellent and integrity. perceived He was outgoing, friendly as an man who activities, was known to participate many community including Margate City League synagogue. Little and his testimony that,
There was also Paul early D’Amato as as August Greenberg appeared negative lethargic and and stopped answering telephone interrogatories timely calls and in a Joseph Sayegh, manner. boyhood attorney, another friend and changes: noticed similar
He was an always He had a of humor. optimistic person. sense He was always gone____ He always kind. made a connection with always And it was people____ guy having something wrong I mean this was not a a bad There was with day him. Goldberg, David neighbor, friend and testified Greenberg, community, once active in the stopped socializing. had A. Michael Barker, partner, Greenberg began fellow observed that keep closed, his office door “was withdrawn and ... there was some despondency.” Greenberg’s wife testified to difficulties at home during period. this Chazin, Greenberg’s treating
Dr. physician expert and first witness, dysthymia, testified that suffered from he attributed to
chronic, depression, which low-grade form of depres- family history of and developmental [a] issues “childhood major depres- Greenberg with diagnosed Dr. also sion.” Chazin condition, have that, Greenberg “did not opined due to his sion and Instead, Green- from his law firm.” intent to steal requisite keep attempt “to himself desperate berg’s constituted a actions view, Greenberg “was In Dr. Chazin’s ego disintegration.” from any show delusional, from hallucinations or ... did not suffer not insane,” though ‘McNaughten’ ... was not sign psychosis[, and] misappropriation little about his acts of he remembered appreciation” of the self-destructiveness “any conscious lacked however, Dr. Chazin hearing, At the time of the his behavior. recovered, unlikely repeat fully Greenberg was reported that behavior, ready practice to the of law. to return his antisocial witness, diagnosed Glass, expert Green- Greenberg’s second Dr. adjustment depression, with disorder berg dysthymia agreed with Dr. Chazin that Green- major depression. Dr. Glass “knowingly misappro- requisite intent to berg possess did firm, an explaining his behavior as from the priate or steal” help: cry for unconscious doing Greenberg I because, was this said was aware that he At some level Joel just and make a I mean he didn’t take the money he did it and he behaved. before, on the other the behavior Yet, hand, throw it out the window. airplane paper [sic] behaviors, to secrete motivation, ... without without attempt
was so odd get greater will him in a way without the behaviors pursue attempt gain.... Greenberg not delusional or agreed Dr. Glass insane, right he knew the difference between *8 “McNaughten” that However, Greenberg lacked wrong. when asked whether will,” responded equivo- competency or Dr. “comprehension, Glass cally: right I that he it falls under what the answer is. believe it, I’m not sure whether Greenberg functioning and will. will was for Mr.
was not The competence Greenberg. firm not to hurt ..., will was not to hurt the law Mr. punish The will was a for cry help. clients. OAE, Sadoff, agreed testifying on behalf of the with Drs. Dr. major depression, Greenberg suffered from and Glass Chazin delusional, “McNaughten” was not and was not insane. With respect depression Greenberg, to how affected Dr. Sadoff differed: He had a His him in a but, affected number of as I depression. depression ways, cognitively not not in
indicated, the sense that he could not know what selectively, doing engaged he was be aware of the behavior that he in. implications He was able to cases and them knew try He the outcome. He try successfully. go doing knew how about what he had to do. He was active in in the community life____ doing things just in other areas of his I know of don’t mental illness any cognitive that would him of his functions in this area and not deprive particular globally, just not across the board. no such There’s illness. specifically disagreed comparison Dr. Sadoff with Dr. Glass’s who, Greenberg’s between upon actions and the actions of a driver home, arriving get has no recollection of the decisions made to there, distinguishing Greenberg’s complicated between acts of rote, misappropriation per- and “the kind of automatic behavior daily formed on a basis that one could dissociate from and be so preoccupied Rejecting possibility as to not remember.” dissociation, Greenberg’s depression caused selective amnesia or Dr. deprive Sadoff concluded that condition did not knowledge ability him of doing of what he was or of the to control however, agreed, unlikely his behavior. Dr. Sadoff that it was Greenberg engage misappropriation again. would
Ill
hearing,
Special
At the conclusion of the
Ethics Master
Greenberg
“engaged multiple
taking
found
had
acts
Horn, Goldberg,
funds” from
“without the authorization or knowl
firm,”
edge
resulting
fraudulently
of members of the
obtained
$27,0252
by Greenberg
pur
disbursements of
used
own
poses.
Siegel, supra,
Based on our
decision
133 N.J. at
A.2d
“knowingly misappropriating
wherein we held that
partners
gener
funds —whether from a client or from one’s
—will
disbarment,”
ally
Special
result in
Master framed
issue
Greenberg
This amount does
include
fee
obtained
appear
$7500
from the Harrisons
for himself without his law firm’s consent.
See
kept
148 misap- Greenberg ‘knowingly’ not Joel before her as “whether or ..., any funds or whether money partnership from propriated ability precluded his to ‘know- existed which psychiatric condition found that Green- ingly’ engage misappropriation.” in acts of She illness, magnitude impairment “the berg had not demonstrated [necessary] provide disability ... judgment severity of or misappropriation and recom- mitigation or defense” for his acts mended disbarment. DRB, Master, Greenberg whether Special asked like ie., misappropriation, whether
“knowingly” committed acts knowing they not his ... and Greenberg the funds that were “took Greenberg’s knowing taking was unauthorized.” Because intent,” motive, opposed the DRB relied experts on “focused money Greenberg taking testimony on was aware he was his, parties taking was unauthorized was not and that his money belonged. majority A of the Board four-member whom also recommended disbarment.
IV
A
Court,
Jersey
By
the New
State Bar Association
leave of the
(“NJSBA”
“Bar”)
participated in this ease as amicus
has
has asked us to reexamine the rule
curiae. The NJSBA
Wilson,
“generally”
knowingly
supra
where an
has
—that
only
misappropriated
appropri
“disbarment is the
clients’ monies
view,
discipline.”
N.J. at
There is to the than however, clearer client’s public, money nothing anything worse. Nor is there that affects confidence more —much public Argu- more than the offense itself —than this of such Court’s treatment offenses. overriding ments for lenient overlook this as effect well discipline importance maintaining that confidence.
[Wilson,
457,
1153.]
Simeone,
suggested that an show, attorney if funds should not be disbarred can a client’s evidence, ... convincing that “an identifiable illness clear and judgment” and that substantial impairment caused substantial pres mitigating additional factors unconnected to the illness were have, however, past in the ent. revisited the Wilson rule We conformity appropriate is have concluded strict Wilson See, 236-38, necessary. e.g., Konopka, supra, 126 N.J. (declining accept suggestion concurring opinion in A .2d 733 exceptions special circum “that there should be to Wilson ‘under ”). supported in stances’ We are mindful that 1983 the NJSBA knowing misappropriation permanent disbarment cases of “ ” (quoting New exception.’ “without Id. at Association, Jersey Report Bar Select Committee to State Safeguarding Property Clients’ Review Standards for (1983)). present proposal, After a careful examination of the Bar’s represents a from we have concluded that it substantial retreat the standard enunciated Wilson.
Today,
again reaffirm the rule announced Wilson and
we
it
appropriate
sanction
cases where
hold that disbarment is
evidence,
shown,
convincing
attor
by clear and
that an
has been
accept as an
ney
knowingly misappropriated client funds. We
has
rarely
consequence
application
of the
of this rule that
inevitable
in such cases. Public confi
will an
evade disbarment
lawyers” requires
“integrity
dence in the
and trustworthiness
Wilson,
456,
B
necessarily
on the trust extended from a client
Wilson
focused
that trust in a
to
her
and the terrible breach of
his or
at 454-
involving misappropriation
the
of a client’s funds. Id.
case
trust,
by knowledge
although
That
buttressed
Under practice discipline and the of over the admission to the of law Const, VI, par. § 2. 3. In further- persons admitted.” N.J. art. responsibility, promulgat- of this constitutional the Court has ance regulatory Professional as the framework ed the Rules of Conduct attorney discipline appropriate for cases. The RPCs serve as a attorneys guide map the conduct of them their road clients, courts, attorneys, relationships with their other comprehensively attorneys’ public. The rules deal with obli- gations practice clients because that is what the of law is to their legal representation persons of and entities in need of about —the application services. The Wilson rule reflects the most attorneys exacting relationship ethical standards to the between and their clients. subject relationship attorneys to one another is also join disciplinary oversight. Lawyers together who
the Court’s practice, partnership professional corporation, convey as a Weiss, Rea, “message” public. Healey to the & (1988). 246, 251-52, 536A.2d 266
Such the full financial and of a law partnership implies professional responsibility general firm that has its resources intellect and serve pooled capital clientele____ The we infers that the collective believe, ethical, public, professional, and financial of a the “kind and caliber responsibility partnership-in-fact bespeaks legal services rendered.” (citation omitted).] [Id. 252, 536 A.2d and footnote Lawyers practice together by who are bound those strictures generally applicable lawyers specifically to individual rules applicable to law firms.
Underlying organization each of the Rules that affect law firm representation by lawyers practicing together of clients is clients, protecting past, present, prospective, the interest public perception and concern about the of the bar. The RPCs control, among things, ability lawyers part- other to form 5.4, nerships non-lawyers, advertising, firm RPC law includ- names, 7.1-.5, ing disqualification firm RPC and the lawof firms firm, upon lawyers based the conflicts of individual in the RPC *13 by insuring that designed protect The are clients 1:10. rules law, potential non-lawyers practicing that clients and are not firms, and that accurate information about law clients receive through confidentiality maintained. Law firms are the vehicles is attorneys individual and the cultures in which which clients retain attorneys function once retained. It is the firm’s those individual lawyers practicing reputation reputations of the of the sum—the lawyers in suggests attracts clients and that together —that problems firm can trusted with the clients’ most difficult be Lawyers betray partners assets. who their and with clients’ betray that trust. recognized “no ethical distinction important,
Most
the Court has
willfully
client
lawyer
personal gain
who for
defrauds a
between a
purpose
untoward
defrauds his or her
and one who for the same
A.2d 156.
partners.” Siegel, supra, 133 N.J. at
Our
morally
equivalent
theft are
does
perception that such acts of
attorneys
relationships
and their clients
from the
between
derive
but, rather, from our belief that
attorneys
partners
and their
wrong
from the latter is as
as from the former.”
“misappropriation
Moreover,
it is not clear that
C apply that the rule should not Respondent contends Wilson Siegel, misappropriation pre-dated to him because his acts of *14 23, July 162, which was decided on 1993. Id. at A.2d 156. record, however, support The does not his claim. 23,1993, filed, July day Siegel respondent requested
On payable days and obtained a check made to Dr. Budnick. In the following, Jersey legal periodicals circulating when the New were see, Court; critiquing Siegel opinion, e.g., Supreme In the Siegel, Attomey-at-Law, Digests, Matter Steven G. an State N.J.L.J., 73-76; 26,1993, July Says Court From Firm Call Thefts Disbarment, N.J.L.J., 9, 1993, 5, 35, August respondent took Rather, 17, steps previously August no to return funds taken. on 1993, $23,500 requested an Sawyer he additional in the name of questioned by Electric to be drawn on firm funds. When request, respondent firm’s Financial Officer about Chief his stat- ed, anyone “If found I out about this would be disbarred.” We post- cannot but conclude that was well aware of the then, Siegel consequences request. final his Even he did not requirements conform his conduct to the of law or of the ethics rules. case, any prior Siegel, to this Court’s in decision it was clear See,
that acts of theft often carried the sanction of disbarment.
e.g.,
Spina, 121
at
(disbarring attorney
N.J.
conspiracy fraud, deception, to commit theft stock and sale of Alosio, securities); 84, 90, unregistered (1985) (disbarring engaged who violating conduct 1-102(A)(3), (4), Disciplinary 8.4(b), (c), predecessor Rule to RPC thereby his unfitness remain as a member “demonstrate^ bar”). Siegel rejected argument Court a similar “that respondent’s sanction,” compels lack of notice Siegel, a lesser . agree. A.2d and we The Wilson supra, 138 N.J. appropriately applied case. /Siegel rule is
Y
that,
Greenberg
of sixteen
Although
period
admits
over
$27,025 Horn,
funds,
months,
Goldberg
retained
he obtained
fee,
personal injury
Harrison
and used these funds for
$7500
consent,
knowledge
argues
purposes without
he
own
the firm’s
Rather, he
guilty
knowing misappropriation.
that he is not
has
standard —that he was
that he
satisfied the Jacob
asserts
caused him suffer a “loss
suffering from a mental illness which
*15
through
testimony
competency, comprehension
expert
or
will”—
firm,
hurt himself
that he
proving that his motive was to
not his
that he
conscious
reality,
touch with
had no
was out of
core, respondent’s argument is
his
At its
awareness of
actions.
“knowing” misappro-
the
as an affirmative defense to
framed both
rule,
priation
presentation
as a
of substan-
requirement
justify
he claims
his conduct.
mitigating circumstances that
tial
A
Glass,
intent,
expert
testified:
respect
In
of his
Dr.
Greenberg
Greenberg.
hurt
Mr.
will was not to
will for Mr.
was to
The
The
punish
[Goldberg],
for
law firm of Horn
not to hurt clients.
will was to cry
help.
commit
that he did not have the intent
that,
however we define
I believe
So
plight,
criminal
He had the intent
to call attention
his own
activity.
personal
suffering.
and personal
personal pain
a
expert’s testimony, respondent attempts to draw
By his
is,
“taking”
“stealing,”
he does not
between
that
distinction
but, rather,
that his
deny
intent to “take” firm funds
denies
his
funds,
hurt the
clients.
“steal”
firm or its
motive was to
firm
sug
respondent.
assist
This distinction does not
Wilson
held,
of the
gested,
consistently
have
motive
“[t]he
and we
for
determining
appropriate discipline
lawyer
irrelevant
is
444,
Roth, supra,
misappropriation.”
140 N.J. at
knowing
398;
533,
1264;
A.2d
Warhaftig,
106 N.J. at
supra,
A.2d
Wilson, supra,
1,
(holding
requires disbarment.
N.J. at
[102
722.]
Barlow,
(“Even
supra,
See also
N.J.
competency, will, comprehension or we have considered whether he or she was “out of reality touch with appreciate unable to quality Bock, ethical acts.” [or her] (1992). Respondent testimony relies on the experts two support his claim that he was “out of touch with *16 reality” and had no conscious awareness of his actions when he misappropriated firm funds. Dr. Glass respondent stated that was “out of conscious touch reality;” with spoke Dr. Chazin of some form of dissociation: If he were I truly aware —and think that of consciously was that it part problem though
was not available to his consciousness. Even he didn’t suffer from a dissociative I think disorder, that he dissociated when he did this. He was on a different He was almost like a plane. kind of self-hypnotic different person. expert goes Neither so far respondent as to claim that was out of or, touch reality alternatively, that he did not know what he doing was when he multiple committed misappropriation. acts of Instead, opine respondent’s of and acts Drs. Chazin Glass only misappropriation to his consciousness for short were available during just place and took periods of after acts time — —after they sup- Rather than were confined his subconscious. which claim, testimony respondent’s respon- porting this indicates doing doing what at the time he was dent did understand he was it.
Moreover, unpersuasive expert-testimony that re- we find doing he was because his acts spondent was not conscious of what from misappropriation kept were isolated his consciousness of and Glass his subconscious drive self-destruct. Drs. Chazin by his mental respondent’s testified that acts of theft were caused respondent’s colleagues friends stated Although disorder. and many that, retrospect, begun in he had to withdraw from of his activities, he to function as an and to former continued religious respon- Even social and activities. participate various “trying during period he cases and dent admits that this was attorney.” functioning explanation has been as an No reasonable ability generally function as normal provided respondent’s everyday yet life suffer a mental illness person from system misappropriation causing complicated him to devise testified, just “I Dr. don’t unavailable to his consciousness. Sadoff any deprive cognitive him of his mental illness that would know globally, not across the particular functions this area and testimony just this There’s no such illness.” Based on board. presented, the Court finds claim selective the facts unpersuasive. amnesia during the time he respondent’s experts testified that
Neither appreciate stealing money firm he unable to from his law was right wrong quality or the nature the difference between 496, 505, Baker, N.J. his acts. See (1990) Romano, (“Here, ‘has failed demon right unable to of the mind rendered him tell strate a disease ” quality of his acts.’ wrong understand the nature and from or to (1986))). Romano, 306, 311, (quoting re N.J. *17 158
Indeed, respondent’s clearly own words indicate he understood wrong. respondent’s experts say that his acts were Nor did respondent’s will was overborne or that he otherwise satisfied the Jacob standard.3 Respondent carefully a carried out constructed scheme consti “ ”
tuting ‘pattern activity,’ Siegel, a supra, 133 N.J. 627 (quoting 262), Spina, supra, A.2d 156 121 N.J. at A.2d 580 over year. engaged the course more than one in multiple He $34,525 misappropriation, Horn, taking acts of Goldberg from for purposes he used his own without the authorization or knowl edge kept of members of the firm. Respondent a fee due firmhis by instructing his him clients issue a check fee the amount. Respondent requests authored numerous fraudulent check designed transmittal letters obtain firm funds without detection. Respondent and, forged signatures, stamp “borrowed” a business SSMS, case signed of checks issued to his own name Respondent order to cash the checks. made calculated withdraw als never created overdrafts. He used the monies he obtained personal own purposes, including mortgage payments his on country his residence club pattern activity dues. This does suggest attorney an suffering such competency, a loss of comprehension will comply that he was unable to with the rules ethics; who, it attorney through complex evidences an plan, a sought to defraud his law firm. illness,
Respondent’s
severe,
mental
deprive
however
did not
knowledge
funds,
him of the
taking
that he was
firm
argues
logic
opinion
The Bar
that the
of the recent Third Circuit
of United
McBroom,
(3d Cir.1997),
contrary
compels
States v.
B argues mitigating that factors Greenberg also substantial eases, attorneys his In where have should excuse conduct. similar factor, disorder, mitigating illness or condition as a we asserted underlying proof disability was required “adequate have that the mitigate re as to or the ethical violation.” In so severe excuse (1995). case, 103, 116, Trueger, 140 N.J. this we respondent’s illness did not meet the have determined that mental Jacob, by supra, set and therefore failed standard this Court knowing misappropria support his affirmative defense to asserted reasons, respondent’s mental does not For the same illness tion. mitigate recognize experts that all three his conduct. We serve agreed depression. Yet respondent suffered from in this ease lawyers stealing far without from “[m]any have suffered worse partners. cannot excuse their clients their We every lawyer personal hardships exonerating who suffers without Siegel, misappropriates supra, funds.”4 N.J. at A.2d 156. mitigating uncon-
Respondent following factors also asserts voluntary to his wrongdoing his notification of nected to illness: OAE; prosecutor’s lack a criminal office and the partners, firm; charges by the by filed lack of criminal filed complaint his office; voluntary suspen- wrongdoing; prosecutor’s admission 1993; restitution; cooperation license full with the sion of since among is a mental illness out points depression prevalent Respondent Dr. testified that Glass attorneys. thirty percent especially professionals, according during their suffer at some time careers from depression professionals cites a Johns National Institute Mental Health brief to a study. Respondent's indicating that are three-and-one-half times University study attorneys Hopkins other to suffer from more than occupations depression. likely persons suggests to the OAE small number of cases reported relatively misappropriation mental of the who suffer from manifest their few depression very attorneys acts of illness theft. OAE; rehabilitation; repu- previously outstanding extensive community. tation in the
Following his confrontation with the firm’s Chief Financial Officer, respondent notify authorized his D’Amato to friend firm, prosecutor illegal and the OAE about activities. Respondent voluntary. this claims that notification was The rec ord, however, only supports an inference he came forward discovery. because he at supra feared See 246. prosecute, As for reliance on the failure to prosecutor whatever declining reasons the and the firm had for *19 charges, ignore press respondent’s we cannot admissions to crimi Moreover, misappropriation. nal acts of we accept cannot as mitigating guilt subsequent voluntary admission of factors his suspension only because he after license acted he believed the Wilson, restitution, firm knew what he had done. On the issue “ rule, supra, very importance, held: ‘We do not attach much as a restitution, may to the depend upon matter of because that more ability favoring repentance financial or other than circumstances ” or (quoting reformation.’ 81 N.J. at A.2d re 1153 In Harris, banc)). 18, 22-23, (en (Sup.Ct.1915) 88 N.J.L. 95 A.
Respondent two mitigating raises additional factors: his rehabil- itation reputation. respect and his rehabilita- efforts, Chazin, agree tion Drs. Glass and Sadoff undergone and, has extensive treatment should such treatment continue, unlikely is to commit unethical behavior in the future. permanently may unjust. To him appear Again, disbar now Wilson, injustice the apparent flowing Court addressed the from arguably attorney: the disbarment of an rehabilitated To disbar ... the that such reformation occur is so despite possibility may terribly compelling justify harsh as to most reasons to it. As far are require as we might concerned, reason that disbarment only is that other necessary be any something result risks even more the continued confidence of the important, public integrity judiciary. in the of the bar and the (footnotes omitted).]
[Id. 460, 409 A.2d 1153 (1982) 32, 36-37, Hughes, A.2d 1208 See also (“[E]ven unlikely repeat will the miscon if it is that the duct, legal by attorneys impugn integrity certain acts so only appropriate to restore system disbarment means is the it.”). be public Respondent’s of theft cannot confidence acts by subsequent treatment. excused his that, Greenberg disagree “[i]f Bar’s conclusion Joel
We disbarred, message attorneys from mental is to all who suffer illness, alcoholism, drug they is that not come addiction should forward, represent practice, should should continue to continue clients, Greenberg help.” We do not sanction and should seek Greenberg betrayed a from illness. because he suffers a mental message money partners. from his sacred trust —he stole attorneys not that need which this case sends the bar is but, help seeking practice should continue to without assistance help rather, possible seek attorneys that such should as soon they engage that will certainly if in activities are about reputation public’s damage professional their and the irreparably integrity in the of the Bar. confidence peers and
Greenberg’s exemplary reputation among his
community
gone unnoticed
this Court. We
within his
has not
testifying
honesty
receipt
are in
of over 120 letters
has, by
*20
partner
a
in a
firm and
integrity. He was
successful law
accounts,
unfortunately
But he
all
well.
is
served
clients
commit
attorney
outstanding reputation
who has
only
the
an
See,
Siegel, supra,
e.g.,
ted
of theft and has been disbarred.
acts
689,
679,
167,
156;
Kelly,
577
627
In re
120 N.J.
at
A.2d
N.J.
(1990).
primary
for disci
This
“the
reason
A.2d 497
is because
[but,] rather,
preserve
pline
punish
...
is not to
the
public
integrity
and trustworthiness
of the
confidence
”
Gallo,
568 A.2d
general.’
supra,
117 N.J. at
lawyers
1153). Here,
Wilson,
supra,
at
A .2d
(quoting
dishones
Siegel, supra,
egregiousness
“[t]he
as in
practi-
distinguished
to so
a
ty
readily apparent
have been
should
tioner.” 133 N.J.
Respondent is disbarred. He is ordered to reimburse the Disciplinary Oversight appropriate Committee for administrative costs.
STEIN, J., dissenting. Wilson, In 81 N.J. (1979), this Court longstanding abandoned its prior practice weighing mitigating in imposing discipline circumstances lawyers on misappropri who funds, ate client adopted and virtually rule of automatic disbar egregious ment for that most infraction: knowingly In this case, used respondent his clients’ as if it were his own. money We hold that disbarment is the only We also appropriate discipline. use this generally occasion to state that all such cases shall result disbarment. We significant no foresee to this rule exceptions the result expect to be almost invariable.
[Id. at 453, 1153.] the Wilson Applying rule, today the Court orders the disbar- n ment of Joel Greenberg. Prior to the events that triggered proceeding, this Greenberg partner was a large City Atlantic law firm. He experienced was an highly suc- litigator, cessful specializing in the malpractice defense of medical enjoyed cases. He impeccable reputation an integrity professionalism, widely respected by lawyers in Atlantic County. August
From July 1992 to Greenberg misappropriated $27,000 approximately from by his law firm submitting false requests disbursement bookkeeping department and en- dorsing for his own use the generated by cheeks requests. those No client funds were taken. psychiatric The three experts who testified at hearing Special before the Ethics Master —Dr. Chazin, respondent’s treating Norman psychiatrist, Gary Dr. Glass, respondent’s expert, Sadoff, and Dr. Robert expert retained Attorney Office of Ethics' (OAE) agreed that — Greenberg’s directly misconduct was “major related to a depres-
163 disorder,” sive that his conduct was aberrational and self-destruc- tive, psychiatric and that as a result of successful treatment highly Greenberg engaged aberrational conduct in which Greenberg made full to his firm. unlikely to reoccur. restitution anyone at the law firm confronted him about his miscon- Before done, duct, he Greenberg friends what had surren- disclosed to law, practice acknowledged his misconduct dered his license County well Atlantic Prosecutor. He partners to his as to the voluntarily practice September suspended from law since has been prior history discipline. He had no 1993. First, disagree disposition grounds. with the on three
I
Court’s
Wilson
rigid
rule of automatic disbarment was intended to be
misappropriation
funds.
applied only
be
of clients’
and should
involving
funds or
discipline for other misconduct not
client
dishonesty
directly
implicating
subverts the administration
Verdiramo,
183, 186,
(1984),
In re
96 N.J.
justice,
Finally, my respondent’s view of this record is that conduct was obviously product major so depressive the of a disorder the susceptibility to which shared with several other fami- members, ly diametrically antagonistic so respondent’s exemplary during eighteen years ethical standards exhibited of practice, law years disbarment after suspension almost five of unnecessarily is an discipline. harsh Based on outpouring the respondent’s letters from colleagues, that view is shared the leadership County of the Atlantic Bar who know character and attributes far better than do the members this Court.
I The Court should exercise caution and considering restraint the extent to apply rigid, which it should bright-line rules in attorney disciplinary proceedings. Disbarment is the most unfor- giving discipline, every and it lawyer condemns on whom it is imposed to a professional life sentence of disgrace. In New Jersey, states, unlike most permanent other disbarment is and its stigma is ineradicable. As Justice Schreiber observed in In re Hughes, forget “we must not punishment that disbarment is a its effect can devastating. deciding disbar, be In whether to the Court should person.” consider the whole (citation (1982)(Schreiber, J., omitted). dissenting) adopting rule, the Wilson this Court pro- was influenced foundly by unique quality the lawyer-client of the relationship that prompts clients to lawyers: entrust their funds to governing Like rules the many behavior of this one has its roots in lawyers, the Having
confidence and trust which sought clients in their place attorneys. relying advice and on his the client expertise, entrusts with the lawyer handling including it of the client’s funds. Whether be real transaction — closing, of a business, trust, the establishment of purchase estate litigation, or one of a multitude any investment of funds, receipt proceeds work of involves possession it is that the situations, lawyers of other commonplace That is sometimes occasionally simply their clients’ funds. possession expedient, be for the lawyer’s Whatever the need may but essential. customary, usually handling it he trusts the lawyer. the client because of clients’ money, permits it and faithfulness. Sometimes is a trust built on centuries of honesty It is knowledge integrity a firm’s of a particular lawyer’s reinforced by personal legal underlying an the bar as however, is faith, profession, reputation. willingness to can account for clients’ customary No other institution. explanation strangers are funds to relative because they lawyers. entrust their simply N.J. 1153.] [81 409A.2d *23 attorney although other conduct emphasized that The Court an public confidence in the bar as may equally reprehensible, be misappropriation discipline for of demands the severest institution funds: client has stolen his clients’ money. What are the merits in these cases? attorney wrong to of one he had reason every suffered a client at the hands No clearer satisfying imagined. a matter of is not as entitled,
trust can be The public maintaining to unjustifiable confidence, matter of but as a simple expectations, again moral be a That the quality that will that lawyer. know never person than be no less reprehensible misap- forms of misbehavior by lawyers may other setting factual often occur in a complex beside the Those is point. propriation meaning is uncertain to the bench of ethical standards the where applicability wrong. recognize the which not even to the bar, may and and especially public, stealing nothing a client’s than however, money clearer to the public, There is anything more—much nothing confidence is there affects public worse. Nor treatment of such offenses. than offense itself —than this Court’s more the 1153.] [Id at A.2d 456-57, 409 circumstances, the Wilson opinion respect mitigating to With any excludes consideration acknowledged that a rule that exemplary misappropriation or the leading to the circumstances harsh,” justifiable “terribly offending lawyer was record of the in the bar: public confidence only by overriding need to retain the court which decrees disbarment that must trouble any The considerations deeply him to and the real steal, very that forced are the on the attorney pressures of a result in the creation new person which would reformation, possibility outstanding integrity, There can be no satisfactory member of the bar. true an financial steal may An beset by problems, to this attorney, answer problem. he conduct fact, his home. After the children, may his wife or save his family, to serve is as well doubt that he equipped a life as prove beyond so exemplary 166 judge sitting court. To disbar the circumstances public any any despite that led to the that such reformation despite possibility misappropriation, compelling justify occur is so harsh as to the most
may
reasons to
terribly
require
might
it. As far as
concerned,
we are
reason that disbarment
be
only
something
is that
other
result
risks
even
necessary
any
more
important,
integrity
judiciary.
continued confidence of the
in the
of the bar and the
public
(citation
omitted).]
[Id. at
409
A.2d 1153
and footnotes
Because of the “terrible harshness” of a rule of automatic
precludes
mitigating
disbarment
consideration of
circum
stances, prior
Siegel
applied
principle
we had
of automatic
funds,
only
knowing misappropriation
disbarment
of client
Wilson,
supra, 81 N.J.
eases of criminal
dishonesty
“directly impaet[s]
justice”
the administration of
thereby “directly poisonfs]
justice.”
the well of
In re Verdira
mo,
supra, 96
475
applied
N.J.
A.2d 45. We have
See,
Edson,
appropriate
e.g.,
Verdiramo rule in
eases.
In re
464, 465-70,
N.J.
(1987)(ordering
A.2d 1246
disbarment of
attorney
case);
who counseled client to fabricate defense in DWI
168, 179-80,
Conway,
In re
(1987)(ordering
N.J.
We consider the nature and of the and whether severity crime, the crime is related
167
which
to the
of law. We consider “evidence
does
the crime but
dispute
practice
mitigating
[relevant to]
of
which shows
circumstances
the issue whether the nature
”
Mischlich,
of
if
the extent thereof.’
In re
and,
so,
the ‘conviction merits discipline
(citations omitted);
re
593,
Rosen,
[1,] 3,
60 N.J.
168
Nevertheless, many
impli
involving
in
cases
dishonest conduct
imposed discipline short
cating theft or fraudulent acts we have
on our assessment of the relevant circumstances
disbarment based
See, e.g.,
giving appropriate weight mitigating
to
factors.
In
and
Hoerst,
98, 100-05,
(1994)(imposing
A.2d 801
six-
re
135 N.J.
suspension
county prosecutor
pled guilty
on former
who
to
month
$7,500
third-degree
County
fund
theft based on use of
forfeiture
himself,
three-day
pay
trip
trip
for
and
side
for
convention
companion, colleague
colleague’s spouse; describing
female
among
respondent’s
reputation
peers
noting
unblemished
approximately seventy
attesting
respect in
letters
to esteem and
by colleagues
which
was held
and law enforcement
officials);
Bateman,
297, 298,
In re
A.2d
132 N.J.
(1993)(imposing two-year suspension
attorney
on
convicted under
fraud, conspiracy
making
federal law of mail
false statement
application
appraisal
property);
on loan
to obtain inflated
value of
(1993)
263, 264,
Konigsberg,
(impos
In re
132 N.J.
169
possession, providing
informants arrested for CDS
them with
helpful
charges against
information
to defense of
them and active
them;
ly participating
handling
prosecution against
in
of criminal
aberrational, unlikely
noting
respondent’s
that
conduct was
to
reoccur,
respondent
effectively
by
and that
been
had
rehabilitated
Silverman,
193, 196, 227,
psychiatric counseling); In re
113 N.J.
six-year
attorney
(1988)(imposing
suspension
A.2d 378. In
five-year
DRB’s recommendation of a
suspension,
respondent’s previously
this Court referred to
“un
366,
professional reputation,”
378,
blemished
id. at
A.2d
his
offense,”
367,
“mental condition at the time of the
id. at
378,
crime,
id. at
respondent’s
the aberrational nature of
A.2d
required
determined that disbarment was not
because
misconduct “does not lead to the conclusion
‘good
that his
character and
permanently
fitness have been
lost,’____”
Id. irretrievably
re
In
(quoting
noted has career as respondent a at a of held, times, servant. various series attorney public Respondent legislative recognition of for which he received the and acclaim both his positions colleagues large. projected and the at His active role in affairs public public governor. enjoyed as a candidate for He also a for respondent potential reputation integrity highly in as a Morris The veracity County. respected enduring character of his and its nature were evidenced at the ethics reputation hearing judges in this matter of numerous retired and members testimony high Bar. of for of the The tenor such reflects their esteem testimony clearly Harry transgressions L. faith in we Sears, him, witnesses’ continued despite now consider. resulting in of mental is well-documented The state depression respondent’s concerning the manner in which has respondent record. exists testimony Ample gregarious, changed individual to an been from vibrant unresponsive hearing indicated evidence at the ethics committee Furthermore, one. melancholy psychological to function state ability this severely compromised respondent’s might of This condition some of the only explain lapses memory normally. but also his inability which characterized respondent’s testimony, apparent investigatory for his before various tribunals. prepare appearances considering we must also evaluate measure, In the appropriate disciplinary engage in that he will in similar activities character and the likelihood is to the record which the future.... Our attention drawn exemplary professional throughout This has won him the has record compiled years. respondent conjunction In with this, and admiration of his and his community peers. respect colleagues the trust of his and clients has retained respondent apparently despite with herein. We find that this his unfortunate association the events discussed genuine L. Furthermore, is a to the character Sears. testimony Harry respect an will reoccur. we are confident that such never episode (citations omitted).] [Id. 364A.2d 777 survey disciplinary comprehensive This extended and of our involving implicating theft cases dishonest conduct fraud or em Siegel, supra, phasizes prior to In re 627 A.2d mandating rule there was no hard and fast disbarment Moreover, involving spectrum disciplin broad cases theft. this ary prior policy weighing mitigat cases demonstrates that our ing imposing discipline involving in all conduct factors cases dishonesty knowing misappropriation other than of client funds or justice sufficiently directly affecting the is flexi administration fraud, theft, appropriately charges involving ble to deal necessity expanded application other offenses without the of an the Wilson rule. view, my Siegel our observation in ethical “[w]e see no lawyer willfully personal gain
distinction between a
who for
de-
purpose
frauds a client and one who for the same untoward
partners,”
defrauds his or her
id. at
unnecessary
disposition
Siegel.
Siegel
to our
thirty-four
engaged
separate
had
in more than
acts of deceit over
$25,000
three-year span
misappropriating
in the course of
over
as
reimbursement
false disbursements. His defalcations were
and,
firm
not discovered until he had withdrawn from the
*29
us,
distinguished from the matter before
there was no reconcilia-
Siegel
partners although
tion between
and his former
a financial
negotiated.
settlement was
Id. at
The Court overlooks the holding application misappro our in Wilson when it extends its priation Although Siegel of law firm funds. both this matter and firms, misappropriations by partners large involved law sophisticated issue can arise in a much less context. In In re (1998), Bromberg, 152 N.J. we had occasion to who, imposition reprimand affirm the DRB’s of a on an firm, non-equity partner three-lawyer intercepted ap $6,600 proximately payable firm and client checks the law account, deposited asserting right the funds in his own a claim of compensation greater represented by an amount of than Bromberg, the client cheeks. Docket No. DRB 97-129 (December 1997). Although the DRB determined that respondent improperly “self-help” ap he had resorted to when use, propriated the firm cheeks to his own the DRB noted the significance mitigating including manag of substantial factors salary ing partner’s withholding of six weeks’ from the attempt renegotiate prior arrangement her their on terms respondent. The DRB determined that the less favorable to circumstances, knowingly misap respondent, under the had not propriated law firm funds. *30 reflects, Bromberg charges misappropriation
As the matter of clearly characterized firm need not arise in a context as from law Moreover, Siegel. in by deception fraud and as was the case funds, involving knowing misappropriation of client unlike cases firm public significantly implicated in law the interest is cases, leading law firm the circumstances to the misuse of venality may significant bearing degree on the of funds have appropriateness of disbarment or some lesser involved and on the rule, inflexibility of the discipline. The harshness and Wilson adopted exclusively knowing misappropriation to deal with of funds, ill-designed govern imposition discipline the in client is of variety may charges knowing of the wide of cases that involve weighty firm misuse of law funds. Court’s institutional responsibility adjudicate fairly attorney disciplinary matters is unnecessary imprudent disserved extension of the every involving alleged law firm Wilson rule to case misuse of funds.
II persists expanded if in conclusion an Even the Court its application imposition of'the rule must control the Wilson discipline every involving misappropriation in case of law firm funds, apply Siegel, in the Court’s determination to its decision unfair, supra, A.2d 133 N.J. is unjustified, longstanding practice and inconsistent with our affording only prospective disciplinary effect to decisions. Re 23, 1993, spondent’s misappropriation July last act of occurred on requested the date on which he and obtained a check in the $1,875 and, payable amount of to Ur. Glenn Budnick coincidental ly, Siegel. opinion the date on which this Court filed its As noted, Siegel implied first was the case which the Court that the govern imposition discipline rule Wilson should cases involving misappropriation of law firm funds. Our consistent practice apply disciplinary and tradition has been to decisions prospectively, absolutely attorneys in order to be certain that who disciplinary clearly commit offenses would be forewarned of the Smock, consequences. supra, $4,500 respondent knowingly misappropriated of client funds mitigating justify
and advanced numerous discipline factors to short of observing disbarment. After that the Wilson rule effec tively rejected cases, significance mitigating factors in such Smock, apply Court declined Wilson to and observed: change Wilson. conduct, In view of radical Respondent’s however, predated Wilson, effected with its strict result disbarment cases as *31 by misappropriation to this Court’s of such treatment matters we believe it compared thereto, prior Wilson significant, although
would be
unfair to
A
manifestly
apply
retroactively.
element of the Wilson doctrine was its
not
on
paramount,
deterrent effect
the bar.
retroactive
does not
serve that deterrent
Obviously,
application
any way
guidance
We
for the
of the bar
if
note, however,
and the
purpose.
public,
Wilson
conduct had occurred after our decision in
he
presumably
would be disbarred.
N.J. at 427-28,
[86
34.]
432 A.2d
Relying
mitigating
respondent,
on the
evidence advanced
the
imposed
428,
the
two-year suspension.
Court
a retroactive
Id. at
Similarly, (1985), in In re 98 N.J. A.2d 551 respondent repay had trust used funds of clients to retainers to dissolving practice. other clients the course of his law All of the misappropriations prior occurred to our decision Wilson. Ob serving retroactive, 511, that the Wilson mandate was id. at 551, DRB significant took note of the evidence factors, mitigating including the District Ethics Committee’s find ing respondent’s depression impaired reasoning, that the had imposed five-year suspension. retroactive Id. at adopted report. A.2d 551. This Court the DRB’s Id. at A .2d 551. Hollendonner, 21, 28-29, (1985),
In In re
apply
this Court held for the first time that the Wilson rule would
funds,
misappropriation
imposed only
of client escrow
but
one-year suspension
respondent
apply
on the
and declined to
its
holding retroactively:
client trust funds is obvious. So akin is the
The
between escrow funds and
parallel
knowingly
misused
other that henceforth an
found
have
one to the
Wilson,
of In re
Finally,
literally
the Court is
correct when it summarizes the
pre-Siegel
indicating clearly
law
that “acts of
often
case
theft
disbarment,”
carried the sanction of
ante at
714 A.2d at
hardly supports
but that
conclusion that
observation
the Court’s
application
holding
respondent
Siegel
of the
to
is fair. As this
opinion’s
analysis
disciplinary
of our
decisions demon
detailed
strates,
opinions
discipline
our
have been inconclusive on the
for
discipline imposed
theft and have varied in the
on the basis of the
specific aggravating
mitigating
Supra
and
factors of each case.
Siegel
theft law funds would invoke the Wilsm rule of disbarment, prior Siegel automatic and to the bar did not have notice that rule law. rely
The Court should not on technicalities or overstate the precedents justify application effect our the retroactive Siegel respondent. ruling The focus of our on that issue should fairness, emphasis be fundamental an on whether any lawyer adequate Siegel holding other had notice that the discipline imposed misappropriation would determine the to be holding of law firm funds. The should its Court follow Smock respondent’s discipline prevail- and determine under the standard ing prior Siegel. to our decision
Ill respondent’s discipline If on the Court were determine this pre-Siegel pursuant aggrava- the basis of standard which all account, ting mitigating circumstances taken into were undisputed persuasively in this argue evidence record would against despite respondent’s misappropria- disbarment admitted eight separate tion of funds from his law firm on occasions. Misappropriation indisputably is one of the most deceitful and lawyer commit. But what dishonorable acts misconduct can clearly, convincingly overwhelmingly this record demonstrates respondent’s completely incongruous is misconduct was honesty, respondent’s exceptional irreconcilable with record of integrity professionalism during eighteen-year career as a Moreover, lawyer preceded the events at issue. the record psychiatric demonstrates that unanimous of the ex- view Chazin, perts respondent’s physician treating Dr. — Glass, expert expert Dr. and the OAE’s Dr. Sadoff —was that respondent’s misconduct was aberrational and self-destructive and *33 major depressive disorder to which
was the direct result of a respondent genetically susceptible. was experts’ only significant disagreement concerned whether
The depres respondent possessed cognitive capacity, despite his sion, knowing misappropriation, being Dr. to commit a Sadoff expert express opinion acts were not sole testimony by expert product of a loss of will. That the OAE’s adopted by in directly to the standard this Court related Jacob, 132, 137, (1984), 469 A .2d to describe a mental knowing misappropriation:' condition that was inconsistent with grounded does not furnish basis established medical report any firmly legal justification facts for a excuse or for There respondent’s misappropriations. has been no demonstration medical suffered by competent proofs magnitude loss of or will of a that could excuse competency, comprehension egregious knowing, misconduct that was volitional and clearly purposeful. case, Special accepted In this both the Master and the DRB Dr. testimony deeply depressed, respondent, although Sadoffs reality. Accordingly, was not delusional or out of touch with applying the standard their recommendation of disbarment Wilson Special DRB was inevitable. Neither the Master nor the consid- whether, Siegel controlling, ered if were not Wilson mitigating justify discipline evidence the record would other than disbarment.
A Respondent practice was admitted to the of law in 1975. In February 1977 he became associated with the law firm now known Horn, Daniels, Weiss, Gomy, Goldberg, Plackter & one of the largest prominent City. and most firms in Atlantic He became a partner Greenberg began of the firm 1982. At about that time representing, exclusively, providers almost health care medical malpractice responsible actions. He bringing to the firm Jersey’s major malpractice as a client one New medical insur- (MIIX). carriers, Exchange ance the Medical Inter-Insurance He became a certified civil trial and tried 125 cases to over state, juries throughout point eompil- conclusion before at one *34 seventy-five ing string a of consecutive successful medical mal- practice trials.
Respondent an for American was arbitrator the Arbitration frequently court-appointed Association and served as a arbitrator south-Jersey in Atlantic and other counties. He served as a County participated Atlantic Bar and Trustee of the Association actively professional bar-sponsored programs. and
Respondent enjoyed exceptionally strong reputation an for hon- esty integrity among colleagues. Joseph Sayegh, and his As partner Goldenberg, Sayegh in the firm of Maekler and and County former President of the Atlantic Bar Association testified: integrity____ guy He had a for for He was the who honesty, top reputation people thought, judgment. good He was the went to when needed considered honest they trusted and down the line. person everybody up straight-shooter. [H]is was that he was a He was honest. If he told reputation something, mean, know, could take it to the bank. I he was—if you you you you to rank in the bar association and who’swho in terms know, wanted people say, you integrity going eight or all, and and were to rank what seven honesty you right guy us I he’s be and it now, there, hundred of mean would up just regard wouldn’t be four or five who were in better held people by—I’m saying judiciary, the courthouse staff. lawyers, by by me— Special Report quoted testimony of Master’s from the A. Barker, respondent’s partners who testified about Michael one reputation honesty integrity professionally and in his and both community: his enjoyed forthrightness. an excellent for his It was no
Joel reputation problem got right he all for to deal with Joel because he was direct and always very anyone negotiat- things an down to and he excellent really developed reputation quickly ing great and a number of them and it became his resolutions cases very quickly strength him. could because his would knew Eveiybody they reputation precede go trust him cases would like that. did and they synagogue____ for that we went to the same I was the attorney Personally, synagogue synagogue____ It was excellent. and I knew his with the reputation Greenberg. him. He You it was the same Joel knew know, Everybody always enjoyed grew in that town and he an excellent loves reputation. Everybody up Joel____ integrity. There was never about Joel’s any honesty question Respondent generously donated his time and efforts to various Margate civic activities well. He served as a member of the helped reorganize City and rebuild Recreation Committee community’s youth league. basketball He was board mem- League umpire, an ber of Little volunteered time as coach, manager. Among in the written in letters record Mary Maudsley, a support of was one from DRB disqualified who herself from this and whose member matter emphasized respondent’s responsibility: of civic letter sense During Greenberg, the time that I have known Joel his commitment not only larger to the He has law, to the but welfare been practice community. *35 coaching active in baseball and softball the I known him. years have very League, Margate I know that he has coached Little he served on the City High Synagogue Recreation and coached School Baseball. Committee, Despite junior high coaching been difficulties, recent he has softball. I believe these of activities are his commitment the which extends representative community the of law. beyond practice I believe that into account takes the for disciplinary process opportunity Greenberg, again I him have total for Joel and I to have redemption. respect hope colleague as a in the Atlantic Bar. County Special The record before Master incontro- demonstrated vertibly only genetic depression respondent’s predisposition to symptoms respondent’s deepening depression but of were in early any late months of evident before history depression critical acts of misconduct occurred. The in respondent’s family younger diagnosis included his brother’s depression requiring frequent hospitalization manic and manifest- multiple attempts Respondent’s ed at suicide. older sister was depression psychotherapy. for treated with medication and His hospitalized depression. sister for father’s also had been chronic early record The also included evidence of series of events that, according psychiatric experts, to the unquestionably aggravated triggered depression respondent toward which genetically predisposed. January In respondent’s moth- diagnosed kidney In respon- er was with cancer. March major required undergo wife was surgery, resulting dent’s back respondent assuming responsibility substantial for her care recuperative an during period. extended addition, Ettes, respondent’s neighbor and friend Mark executive, helicopter accident, respon- casino was killed in a responsibilities assisting significant Ettes’s widow dent assumed respon- Mrs. Ettes retained and two children after his death. damages law firm to institute a civil action recover dent’s death. confirmed that Mrs. Ettes’s her husband’s Witnesses any explanation, respondent’s partners, without request respondent litigation respondent caused not be involved in Also, personal spring great anguish and humiliation. representa- respondent’s law firm decided to discontinue its MIIX, important tion of most client whose medical respondent’s legal malpractice litigation accounted for the bulk of work. symptoms respondent’s deepening depression were evi- gained In a matter of months
dent to his friends. fifty practice working approximately pounds. began He colleagues that on his office door closed. Several testified asleep during the they sitting found him at his office desk occasion day. returning telephone about calls and He became careless invitations. He keeping appointments. He declined lunch became also professional introverted and withdrawn. His habits were neglectful affected. testified that he became about Witnesses preparing depo- *36 for answering interrogatories such as details sitions. addition, about the marked numerous witnesses testified testimony personal Attorney Sayegh’s
change in his demeanor. colleagues: reflected the observation of several friends and something guy, something something wrong this in the There is with is —there’s me, he looked at he it was his —the manner me, I —the way way way spoke being [of] I him of was an He of how knew always optimistic person. his — —he had a sense of humor. He was kind. He made connection always always always how those, know, hi, with It wasn’t one of are He connected you. you people. just doing, talking on in know who to and move you don’t you you really you’re a connection with me. This is I mean when I saw he would make Joel, your day. He was a And it he was. He was a personality. unique person. way unique guy gone. it I this was not a think I wrote was I mean was bizarre. mean —I get guy having You he didn’t know, letter I mean this was not a a bad day. my judge at him. I mean that’s stressed out some case he had some yelled by something something was what It was there was in his There eyes. happened. me____ something wrong with the look in his he There was eyes. way spoke As I’ve he was a different and I —it struck me all of a sudden and I said, person something wrong I with him. it and knew there was very upset Chazin, respondent’s treating psychiatrist, Dr. Norman testified 15,1993, September day respondent that on after disclosed his D’Amato, misappropriations to Paul his friend D’Amato referred treatment, respondent describing him to Chazin for as suicidal. history testimony respon- Dr. Chazin’s described the he took from dent, description significant which included a of the events that respondent’s contributed to sense worthlessness and low self- depression. Respondent esteem and exacerbated his described apart falling complained himself as and unable to function. He insomnia, motivation, fatigue, anxiety, feelings loss of helplessness. attempt He described an aborted suicide spring of and inclinations toward self-destructiveness and prolonged period. Notwithstanding suicidal acts over those symptoms, respondent severe stated that he was to function able reasonably professionally intensity well of his trial practice therapeutic would serve as a form of relief. misconduct,
Concerning respondent’s ethical Dr. Chazin charac- misappropriations “wantonly terized his firm from his law as self- behavior, “desperate prevent destructive” and as a measure[ ] ego.” Although respondent reported the self-destruction of his little, any, if memory misappropriations, conscious of his Dr. misappropriations Chazin described the as “the acts of a man who over,” essentially felt his respondent’s life was and observed that judgment impaired by depression was so his that he lacked the ability to control his self-destructive behavior. He characterized misappropriating transparent method funds as “so caught,” thereby serving [it] assured he would be to “hasten a self-fulfilling prophecy rejection and humiliation.”
Dr. diagnosed respondent suffering dysthymic Chazin as from disorder, prolonged depression, superimposed a chronic as well as adjustment depression. disorder with He described having depressed many years been as a of both result genetic predisposition development, and childhood *37 and that his depression aggravated chronic and exacerbated the series concluded ego. on his Dr. Chazin personal and assault setbacks relationship to depression a direct causal deepening had that his characterized as aberration- misappropriation, which he his acts of al conduct. therapy respondent continued to receive February
As of significant improvement in weekly had demonstrated and twice mood, concentration, well-being interpersonal re- generalized behavior, depression, had addressed his lationships. Respondent substantially recovered and had personality characteristics highly unlikely that it to be illness. Dr. Chazin believed from his conduct, and again engage in similar respondent ever would practice of law. fit to resume the considers him Glass, essentially agreed with Dr. respondent’s expert, Gary Dr. respon- that and conclusions. He concurred diagnosis Chazin’s disorder, depres- chronic dysthymic suffering from a dent was sion, adjustment depression and disorder with as well as an of those disorders anxiety, characterized the combination and he misappropria- Concerning respondent’s “major depression.” aas tions, clearly not take firm respondent that did Dr. observed Glass Rather, respon- money. he attributed he needed funds because appreci- recognition and desperate need misconduct to dent’s for. recognition gain “tried ation. Dr. Glass noted success, not work but this did through helpfulness, dedication through Dr. gained ‘recognition’ self-destruction.” instead he type,” and Greenberg is not a criminal concluded that “Joel Glass behavior was a respondent’s unethical or “criminal” observed outgrowth his emotional illness: direct appearing through and aware. He may the motions conscious he went
Specifically, driving not aware of his but he was behaviors, certainly have been aware of his innermost unconscious in this way by He was to behave forces. compelled functioning unconscious drive and from a needs and was purely personality of his needs. unaware, sense, the conscious state, motivational was not to respondent’s motivation Finally, opined Dr. Glass hurt the firm: motivation was to out and say to hurt Joel. The “[t]he cry motivation was
Rather, get It attention this it in this I tried to your way. I I can’t way. need help. say *38 184 work. I It
didn’t tried that didn’t work. Here’s what I’m left way. with, tragic unfortunate and a terrible dilemma.” desperate, Sadoff, expert, agreed Dr. Robert the OAE’s with Doctors during period July Chazin and Glass that the relevant 1992 1993, through August respondent “major depres- suffered from a sive disorder.” As for the respondent’s connection between de- pression misappropriations firm, and his from his law Dr. Sadoff testified that he found no personality evidence of antisocial or sociopathy respondent, in respondent’s judgment and believed that impaired by depressive was agreed disorder. He with Dr. engaging Glass that misappropriation, respondent acts of calling “was on a self-destructive bent and was attention to his needs____ certainly gotten He has their attention now and did so self-destructive, negative, in a neurotic manner.” Dr. Sadoff however, disagreed, with Doctors Chazin and Glass in that he during concluded that period respondent the relevant time was not deprived cognitive function, of his and that his will was not overborn to the extent that he was engage unable to decide not to misappropriation from his firm. Dr. Sadoff concluded that respondent doing, “knew what he was that his conduct [ ] was self- destructive and negative [that it] did call attention to him in a way.” respondent’s He observed that prognosis good with continued treatment.
The Court declines to
mitigating
consider as
against
evidence
indisputable
disbarment
proof
record
mis-
major
conduct was the
depressive
direct result of a
disorder
personal
exacerbated
a series of
genetic predis-
setbacks and a
position
depression.
standard,
Applying the Wilson
the Court
considers
depression
whether,
that evidence of
relating only
Jacob,
pursuant
supra,
498,
95 N.J. at
respon-
469 A.2d
comprehension
dent’s
157-58,
and will were overborn. Ante at
Two later to relin- and offered Attorney Ethics of his misconduct Office he September practice law. On quish his license misappropri- County that he had Atlantic Prosecutor informed the 22, 1993, into a September he entered On ated law firm funds. consent suspending practice. order his license to Within weeks after the law firm respondent’s misappro- calculated the amount of priations, respondent made full restitution. respondent’s voluntary
The Court treats
disclosure of his mis-
dismissively, observing
conduct
“supports
that the record
an infer-
only
ence that he
came forward
discovery.”
because he feared
Ante at
Although
this proceeding is the submission of more than 120 letters from
County
members of the Atlantic
Bar supporting respondent’s
*40
readmission.
In pre-Siegel
involving
dishonesty
cases
acts of
by attorneys,
theft
consistently
this Court
has taken into account
prior professional
the
reputation
attorneys charged
with mis
Silverman,
determining
conduct in
appropriate
See,
the
discipline.
e.g.,
sup
ra,
1225; Stier,
who know Joel practiced in an otherwise learn that whatever occurred was a transient episode will conduct Greenberg and he healthy, career. When Mr. was mentally unblemished physically highest an Bar and the standard of was asset to the Association exemplified I returns, When his am and ethical conduct. health professional responsibility again those confident will demonstrate qualities. he Greenberg’s I called him and offered When I learned of Mr. troubles my again judge Greenberg, or on a I it is unfair to Mr. anyone, do so because support. single and standards. inconsistent with conduct prior incident, totally personal Daniels, Respondent’s partner of his firm’s John W. member committee, executive wrote: integrity Greenberg’s in was and community Joel for and reputation honesty was endeavors therefore well [is] excellent. He was active and community very throughout his known his community. Despite present problems, reputation his is one that is still intact and current situation only produces community he his activities. and as to when will resume professional sympathy questions has with the I that this situation is an isolated event. Joel fully know cooperated investigation, firm, an in our his firm this and as owner and shareholder and with I understand the conduct the firm and himself and no one else. hurt only I illness that can was and also understand emotional with, that Joel faced pressures I However, break cannot understand any lead someone to under pressure. regain for and the to one’s that would rehabilitation provide ability system former after rehabilitation. position Flower, County Bar a former the Atlantic Willis F. President of Association, wrote: I a Trustee President mid-80s when became Officer ultimately programs. various Atlantic Bar Joel worked our Association, tirelessly County significantly During Trustee. involved our time, of this he was a Joel part We strides
Association’s relations. made important attempts improve bench/bar handling improving and the bar in the communication between bench of time cases. This involved a substantial commitment of civil disposition effort. he his but was zealously Joel the interests of clients tenaciously represented is “win at these too that, days able resist the cost mentality” unfortunately, any Greenberg Greenberg’s bond. dealt often Joel word was his Joel present. litigate forthrightly ambush” or and did “by with his adversaries not attempt attacking was realistic and his or the adverse Joel adversary party personally. goals to be resolve in the that he advocated and seemed reasonable positions *41 rather to utterly adversary. the conflict on reasonable terms than destroy integrity protecting Bar’s I am aware of the vital necessity certainly safeguarding I believe the reinstatement of our clients. do not that reputation Greenberg goals. Joel is in antithetical to such we must any respect Surely, high maintain standards of the New but I for one would Bar, Jersey question recognize beings those if we cannot that human make mistakes, standards will beings human can be and that when are, rehabilitated should be they they to atone. permitted partners, Gorny, respondent’s Jack one of wrote: great integrity I have had trust in to and, fact, in Joel’s this he has a always day to home. key my change over the last there dramatic several has been a in his retrospect, years interaction with in our office. In the he personality past, people always gregarious, outgoing having engaging to and looked forward lunch and in athletic changed. in events with other the firm. Over the last few years, people Hindsight ongoing it now makes clear that there was an which he process by began excluded himself from contact with other in office. He to lawyers regularly not attend firm social functions and lunch tended to eat himself and engaged cut back his activities others here. IWhile participation sports psychological am not to make assessments or conclu- reach qualified psychiatric signs working it now sions, that we missed of a hard who had no appears lawyer longer to been able connect with his He chose not to emotionally be a peers. significant a active and this was from socially partner earlier departure his gradual It thus, a manner was not as personality. developed and, readily changes discernible as it should have we to been. Had closer attention these paid significance, their understood the situation in which he finds himself perhaps would have occurred. presently regrettable, While his actions recent are certainly should inappropriate they understanding, be dealt with in an and constructive manner. compassionate Near- of hard dedication and ly years work, service should not be community simply ignored. grievous has a He made mistake but one which I believe clearly arose from difficulties, emotional not a blatant desire to be dishonest. He has suffered greatly a as result his as have his three and the actions, wife, children rest of his young man He is and the rest of his work not be family. life should taken from him. Jacobs, Edwin F. Jr. wrote: nothing I know next current ethical Joel’s and will therefore problems having
remain however, silent as them. I know a bit do, Joel, about been a acquaintance If asked professional twenty years. approximately by any person agency an to state I would without Joel, hesitation characterize him opinion conscientious very and honest I have never had occasion steady, attorney. general, integrity. word, written question or, I spoken representation expect agree that most other local would what I have said in this attorneys letter.
B disciplinary proceeding This is a difficult for the Court resolve. magnitude Its institutional concern is -with the of the misconduct, the theft of from funds law firm over an However, period. extended respondent’s partners as one of ob- served, implicated; no only respondent outside victims are and the *42 harmed, That the and firm been made whole. firm were the has supports leadership respondent’s of law firm his readmission perhaps profound is the most evidence practice law respondent’s misconduct was aberrational and result major partners His understand better depressive disorder. law totally incompatible anyone misappropriations that his were than values, character, professional his and his entire career. with his responsibili- institutional then must be said of Court’s What ty? is for Court urge I would this not case continuing or to its commitment to the rule reaffirm Wilson modify from unwillingness depart or Wilson’s communicate its implicated not no client funds were is because rationale. Wilson only ground, by applying Siegel prospec- taken. Either on that rigidity of confront the the Wilson tively, the Court need not holding.
Moreover, undisputed unique of the this record is because miscon- illness and his between mental connection duct, with his law respondent’s obvious reconciliation because of reputa- and, respondent’s extraordinary firm, finally, because for colleagues not case among bar. This is tion individual- is a case for our traditional discipline. formulaic This mitigating fairly strength of the discipline reflects the ized truly nature of the misconduct. and the aberrational evidence on this fully if we determine that public will understand The know Joel lawyers who record disbarment is mandated. Greenberg not understand if we do otherwise. best will
O’HERN, J., opinion. joins in this
ORDER of ATLANTIC A. It is ordered that JOEL GREENBERG CITY, be to the of this State who was admitted bar attorneys from the roll and that his name be stricken disbarred State, immediately; it is further effective this is hereby be that JOEL A. GREENBERG ORDERED law; it enjoined practicing from permanently restrained and is further A. comply
ORDERED that JOEL GREENBERG with Rule dealing attorneys; 1:20-20 with disbarred and it is further funds, any, currently any if existing ORDERED that all New Jersey financial institution JOEL maintained A. GREEN- BERG, 1:21-6, pursuant to Rule from be restrained disbursement shown, except upon application Court, good to this cause *43 shall be transferred financial institution to the Clerk Superior deposit Court is who directed to the funds in the Fund, Superior Court; pending Court Trust further of this Order and it is further Disciplinary
ORDERED that reimburse Over- sight appropriate Committee for administrative costs incurred in prosecution of this matter. PORITZ,
For disbarment —Chief Justice and Justices HANDLER, POLLOCK, GARIBALDI, and COLEMAN —5.
Dissenting O’HERN and STEIN —2. —Justices BAXT, SHERWOOD BAXT AND SAIDA PLAINTIFFS-APPEL LANTS, v. A. GERALD LILOIA AND ANTHONY SYL J. VESTER, DEFENDANTS-RESPONDENTS. Argued September July 17, 1996 Decided 1998. Reconsideration Denied Oct. 1998.