(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 24, 1996 -- Decided November 22, 1996
PER CURIAM
This is an attorney disciplinary case. The Disciplinary Review Board (DRB) concluded that John P.
Doyle of Brick should receive a one-year suspension from the practice of law for his misconduct in the course
of his representation of several members of the same family in the preparation of various documents. Three
members of the DRB voted to impose a reprimand. Doyle has been a member of the bar since 1967 and
served as a member of the New Jersey Assembly from 1974 to 1992.
The conduct in question stems from Doyle's relationship with members of the Osborn family, one of
whom, Jack, had become a client of Doyle by late 1960. Later, Doyle represented Jack's wife, his father
(John), his aunt (Kathryn) and other members of the Osborn family. Doyle's primary ethical transgressions
involve his representation of John's sister, Kathryn Osborn.
Doyle first represented Kathryn in l978, when she became the executrix of her sister's estate, a
significant portion of which consisted of real property, known as Camp Osborn in Brick Township. In
November l979, Kathryn suffered a severe stroke that left her unable to communicate orally and confined to a
nursing home. After Kathryn suffered the stroke, John, who was the alternate executor under the will, retained
Doyle to help him prepare an application to have Kathryn removed as executrix of their sister's estate. Doyle
obtained an affidavit from one of Kathryn's physicians stating that, as a result of her stroke, Kathryn was
unable to take care of herself or estate business. Kathryn was removed as executrix on the basis of her
incompetence to function in such a capacity. There was no adjudication of her as incompetent to conduct her
own affairs.
At John's request, after Kathryn was removed as executrix, Doyle prepared a power-of-attorney for
Kathryn's signature, which gave John broad authorization with regard to the disposition of Kathryn's assets.
Although Doyle claimed that he was representing Kathryn in the preparation of the power-of-attorney, he did
not recall discussing the preparation of the document with her. There was no allegation that John misused the
power-of-attorney. Kathryn signed it with an “X” and it was notarized by Doyle's secretary.
Thereafter, in December 1980, Doyle prepared reciprocal wills for Kathryn and her husband, James.
Kathryn signed her full name to the will rather than affixing an “X.” The will was witnessed by Doyle and the
very same doctor who, less than one year earlier, had signed an affidavit attesting to Kathryn's incompetence to
continue as executrix of her sister's estate. The will created a trust for her support during her lifetime and
further provided that, upon the death of her last brother, the corpus was to be divided between Jack (John's
son) and Robert (the son of Bartlett, one of John's brothers). Bartlett would later challenge Kathryn's will.
Doyle then met with Kathryn in November l984 to discuss a new estate plan that would minimize the
tax consequences to the beneficiaries of Kathryn's estate, primarily John and his family. Although Doyle had
not seen Kathryn in four years, prior to their meeting, he had engaged a tax attorney and accountant to
prepare such an estate plan upon the request of John and Jack, both of whom had advised him that it was
Kathryn's desire to revise her l980 will and adopt a new estate plan. At their November meeting, Kathryn was
unable to communicate verbally, but was able to make grunting sounds or utter an occasional word. Doyle
claimed that he had discussed the concepts proposed by the tax attorney with Kathryn by asking questions
requiring only “yes” or “no” answers. In addition, Doyle determined Kathryn's specific wishes after he wrote
names and amount of bequests on sheets of paper, pointed to the name or amount and Kathryn responded with
a nod or a grunt. Through this method, Doyle was able to determine that Kathryn wanted to leave her brother,
Bartlett, only $5,000. The bulk of her estate was to be left first to her husband, James, then to John and
ultimately to Jack.
In February l985, Kathryn and her husband executed reciprocal wills effectuating the tax plan. Kathryn
executed her will with a mark, instead of her signature. Prior to the execution of the will, however, and in
accordance with the overall estate plan, Kathryn conveyed outright to John and Jack the totality of her real
estate holdings. Doyle prepared each of the deeds involved in the transfers and witnessed Kathryn's mark as
her signature on those deeds.
Kathryn, who survived her husband, ultimately died in October l987. After her will was offered for
probate, one of her brothers, Bartlett, filed a petition contesting the will, alleging that the will and the inter
vivos gifts were invalid because Kathryn was mentally incompetent and had been subjected to undue influence.
Although Doyle's firm was originally retained to oppose Bartlett's claims, John ultimately retained new counsel
and entered into a settlement agreement, setting aside the will and inter vivos transfers and giving Bartlett
approximately forty percent of the estate's assets. John thereafter filed a malpractice action against Doyle and
recovered that amount from his malpractice carrier.
The last transaction in which Doyle was charged with misconduct occurred in l987, when Doyle
purchased property from John, known as the Drum Point property, that had been conveyed by Kathryn to John
and his wife earlier that same year. When Kathryn made that conveyance, Doyle did not inform her of the
likelihood that he would be purchasing the property. Moreover, John was not represented by independent
counsel in the transaction with his attorney. Doyle purchased the property for $25,000. He based that figure on
an offer one of his other clients had previously made to Kathryn for the purchase of that same property.
Shortly after the purchase, Doyle subdivided the property and sold it for $110,000 to the former client who had
previously made the $25,000 offer to Kathryn.
HELD: Doyle's conduct while representing Kathryn in the preparation of her power-of-attorney, her wills and
her estate plan constituted a conflict of interest and gross neglect in violation of RPC 1.7, RPC 1.4, RPC 5.4(c)
and RPC 1.1(a). In addition, Doyle's conduct in the purchase of the Drum Point property from John
constituted both a conflict of interest and a prohibited business transaction with a client in violation of RPC 1.7
and RPC 1.8. Doyle's misconduct warrants a six-month suspension.
1. Doyle engaged in unethical conduct when he prepared Kathryn's power-of-attorney, her will and her estate
plan at the request of another client, John, without disclosing to Kathryn his representation of John, without
giving her an opportunity to be represented by independent counsel and without obtaining her consent to his
representation. (pp. 11-14)
2. Doyle's failure to take reasonable measures to ensure the validity of Kathryn's will and inter vivos transfers
constituted gross neglect. (pp. 14-15)
3. Ignorance or gross misunderstanding of the rules does not excuse misconduct. (p. 16)
4. Generally, when an attorney's conflict of interest causes serious economic injury to clients, a term of
suspension has been imposed. (pp. 16-17)
5. An attorney should refrain from engaging in a business transaction with a client who has not obtained
independent legal advice on the matter. (p. 18)
6. A six-month suspension is the appropriate discipline in this case where the attorney's misconduct spanned a
period of eight years and was not limited to a single aberrant act. (p. 19)
7. Doyle has had an exemplary career and is well respected by members of the bar and the public at large.
Were it not for his conduct with respect to the Drum Point property, a suspension would not be imposed. (p.
19)
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN
and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
15 September Term l996
IN THE MATTER OF
JOHN P. DOYLE,
An Attorney at Law.
Argued September 24, l996 -- Decided November 22, 1996
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Nitza I. Blasini, Deputy Ethics Counsel,
argued the cause on behalf of the Office of
Attorney Ethics.
Robert F. Novins argued the cause for
respondent (Novins, York & Pentony,
attorneys).
PER CURIAM
This disciplinary proceeding arises out of a presentment filed by the District I Ethics Committee (DEC) against respondent, John P. Doyle, based on his representation of members of the Osborn family. The DEC found respondent guilty of unethical conduct in the preparation of a power-of-attorney, wills, and an estate plan for Kathryn Osborn and in the purchase of property from John Osborn, Jr. The Disciplinary Review Board (DRB) agreed with that finding. A majority (five members) of the DRB recommended respondent's suspension from the practice of law
for one year; three members recommended a reprimand. We granted
respondent's petition for review.
After independently reviewing the record, we conclude that
respondent engaged in unethical conduct. We find, however, that
a six-month suspension from the practice of law more
appropriately reflects the seriousness of respondent's conduct.
Respondent was admitted to the bar in l967. Until recently, he was engaged in the general practice of law and, from l974 to l992, was a member of the New Jersey Assembly. Respondent's practice is now limited almost exclusively to representation of municipalities. Numerous letters attesting to respondent's good character and good works have been received. In l985, respondent was privately reprimanded for a conflict of interest in a real estate transaction.
The conduct in question stems from respondent's relationship with members of the Osborn family. Respondent met John W. Osborn, III (Jack) in the late l950's when they attended the same high school. By the late l960's, respondent began representing Jack in various matters. Later, he represented Jack's wife, Carol. Eventually, respondent performed legal work for Jack's father, John Osborn, Jr. (John), and his wife, Loretta.
Respondent's primary ethical transgressions involve his
representation of John's sister, Kathryn Osborn. John and
Kathryn had three other siblings, Marion Osborn Wagner, Stanley
Osborn, and Bartlett Osborn. Respondent first represented
Kathryn when, on the death of her sister Marion in l978, she
became the executrix of her sister's estate. John was named
alternate executor and Kathryn was the primary beneficiary of
that estate. A significant portion of the estate consisted of
real property, known as Camp Osborn, in Brick Township that had
an approximate value of $l.8 million. Kathryn and Marion owned
the real estate jointly, and Kathryn inherited Marion's share
under her will.
On November 24, l979, Kathryn suffered a severe stroke that
rendered her paralyzed on the right side, unable to communicate
orally, and confined to a nursing home. After Kathryn suffered
the stroke, John retained respondent to help him prepare an
application to have Kathryn removed as executrix of Marion's
estate. Respondent obtained an affidavit from one of Kathryn's
physicians, Doctor Bregman, stating that as a result of her
stroke, Kathryn was "unable to take care of herself and certainly
any business or estate matters." Dr. Bregman reported that
Kathryn no longer had the physical or mental ability to make
decisions and that the condition was irreversible.
Kathryn was removed as executrix on the basis of her
incompetence to function in such a capacity. There was no
adjudication that Kathryn was incompetent to conduct her own
affairs.
After Kathryn was removed as executrix, respondent prepared a power-of-attorney for Kathryn's signature, at John's request. The power-of-attorney named John as attorney-in-fact and authorized him to "perform any act or execute any document including checks received or to be paid out, to convey, encumber, dispose or effect any real or personal property owned by [Kathryn]." Respondent did not recall discussing the preparation of that document with Kathryn, but did remember John asking him to prepare the document. Respondent, however, claimed that he was representing Kathryn, not John, in the preparation of the power-of-attorney. Although respondent realized there was a problem with Kathryn's capacity to grant such a power-of-attorney, he proceeded with the preparation of the document for Kathryn's signature. There is no allegation that John misused the power-of-attorney.
Kathryn signed the power-of-attorney with an "X" and it was notarized by respondent's secretary. Although the letter transmitting the document to Kathryn for her signature directed her to execute and return the document to respondent's office for witnessing, respondent assumes that his secretary personally witnessed the signature, as he would have wanted it done that
way. Respondent acknowledged the impropriety of notarizing a
document signed out of the presence of the notary.
C
In l980, respondent prepared reciprocal wills for Kathryn and her husband, James. The record does not reveal at whose behest respondent prepared those wills. His file did not contain any notes of a meeting with Kathryn or James before the preparation of the wills. Nonetheless, he believes he "must" have met with Kathryn before he prepared the will.
Kathryn's l980 will essentially provided for the conveyance of "certain properties" (seventeen lots that were part of Camp Osborn) to John in trust. The income from the properties was to be used for the support and maintenance of Kathryn and her husband. On the death of the survivor of Kathryn or James, the income was to be paid equally to John, Stanley, and Bartlett. When the last brother died, the trust was to be terminated and the corpus to be divided between Jack (John's son) and Robert (Bartlett's son). Respondent asserts that Jack's lots were worth $630,800, and that Robert's lots were worth only $265,300. The residue and remainder of Kathryn's property, was devised to John, Stanley, and Bartlett. John was appointed executor and trustee under the will.
The will, dated December l5, l980, bore the signature of "Kathryn M. Osborn," rather than an "X," and was witnessed by
respondent and Dr. Bregman, the same doctor who signed the March
l980 affidavit stating that Kathryn lacked the ability to
continue as executrix of Marion's estate. Marion B. Perrine, an
employee of the nursing home, notarized the will. Respondent
testified that Kathryn signed the will with her own hand.
Nursing home employees testified that it was common practice to
have a social worker assist patients to sign their names to
certain documents.
The Estate Plan and the l985 Will
Although respondent had not seen Kathryn in four years, he engaged a tax attorney and accountant to prepare an estate plan for Kathryn that would minimize the tax consequences to the beneficiaries of Kathryn's estate, primarily John and his family. Respondent did not visit Kathryn at the nursing home to determine whether she wanted to revise her l980 will and adopt a new estate plan, but relied on information and representations about Kathryn's wishes provided by John and Jack.
Respondent met with Kathryn to discuss the new estate plan, for the first time, on November 29, l984. Respondent claimed that he had a "general" discussion with Kathryn regarding the nature of the estate plan and its effect. Kathryn was unable to communicate verbally, but apparently was able to make a few grunting sounds or utter an occasional word or two. Respondent claimed that he discussed the concepts proposed by the tax
attorney with Kathryn by asking her only "yes" or "no" questions.
Respondent determined Kathryn's wishes after he wrote names and
amounts on sheets of paper, pointed to the name or amount and
Kathryn responded with a nod or grunt. According to respondent,
through this method he was able to determine that Kathryn wanted
to leave her brother Bartlett only $5,000 and that she wanted the
bulk of her estate to be left first to her husband, James, then
to John and ultimately to Jack. Stanley, Kathryn's other
brother, had already died. Her husband, James, was the only
other individual present during that exchange.
On or about February 27, l985, Kathryn and her husband
signed new reciprocal wills. Kathryn executed her will with a
mark, instead of her signature. Her will created two trusts.
The first, the spouse's part, was to be held by John as trustee,
for the benefit of James during his lifetime; on his death, the
corpus was to be added to the second trust, the residual part.
The second trust was to be held by John, as trustee, and the
income was to go to James during his life. On James' death, the
income was to go to John or his wife, and, on the death of the
survivor of them, the entire balance of the trust was to be
distributed to Jack. James made a reciprocal will.
Respondent did not read the will to Kathryn word for word,
but reviewed the provisions in a "general way." Frances
Robinson, a friend of John's wife, witnessed Kathryn's signature.
Ms. Robinson testified that Kathryn understood the contents of
the will: "it was the way she wanted it." She recalled
respondent showing and reading parts of the will to Kathryn. Ms.
Robinson also remembered respondent asking Kathryn if she
understood parts of the will and if "it was the way she really
wanted it." Kathryn did not answer "no" to any of respondent's
questions. According to Ms. Robinson, it took approximately ten
minutes for respondent to review the will with Kathryn.
Prior to the execution of Kathryn's new will, and in
accordance with the overall estate plan, Kathryn conveyed to
John, Jack, and their spouses income-producing property in Sea
Girt, New Jersey, for one dollar. Between December l984 and
February l987, in furtherance of the estate plan, Kathryn also
conveyed outright to John and Jack the "totality" of her real
estate holdings. The value of the properties was in excess of
one million dollars. Respondent prepared each of the deeds
involved in the transfers. He also witnessed Kathryn's mark as
her signature on those deeds.
The tax expert recommended that an annuity for Kathryn's
support and maintenance should be purchased. John, however,
could not afford the annuity payments. Therefore, in May of
l986, Jack, as "borrower," executed a note and mortgage to
Kathryn as the "lender," in the amount of $400,000. The security
for the "loan" was a piece of property that had been conveyed by
Kathryn to Jack. The payment terms were obscure.
Because Kathryn transferred all of her properties during her
lifetime, there was literally nothing left, other than the
$400,000 note, to form the corpora of the trusts created under
the reciprocal wills. James died in May l986 and Kathryn in
October l987.
After Kathryn's will was offered for probate, in March l988,
Bartlett filed a petition contesting Kathryn's will. The
petition alleged that the will and inter vivos gifts were
invalid, because Kathryn was not mentally competent and had been
subjected to undue influence from John, Jack, and their
respective wives.
As the executor of Kathryn's estate, John retained
respondent's law firm to oppose Bartlett's claims. Approximately
three weeks before the trial, however, respondent's partner sent
a letter to John, notifying him of Bartlett's claim that
respondent's representation of both Kathryn and the will
beneficiaries gave rise to a presumption of undue influence that
could only be rebutted by clear and convincing evidence. The
letter advised John that, if clear and convincing proof could not
be presented, John would have a cause of action against
respondent for respondent's actions between l980 and l987.
As a result of the letter, John and the other named-defendants in the will contest retained new counsel. The
defendants ultimately entered into a settlement agreement with
Bartlett, setting aside the will and the inter vivos transfers.
Bartlett received approximately forty percent of the estate's
assets. Thereafter, John filed a malpractice action against
respondent and apparently recovered most, if not all, of that
amount from respondent's malpractice insurance carrier.
E
In l987, respondent purchased property referred to as "Drum
Point property" from John and Loretta. That property had been
conveyed by Kathryn to John and Loretta on February l3, l987, for
$l, in accordance with Kathryn's estate plan. Six days after the
property was conveyed to them, John and Loretta contracted to
sell the Drum Point property to respondent for $25,000. Neither
John nor Loretta was represented by an independent attorney in
the transaction. Thereafter, the property was transferred to a
partnership composed of respondent and his two daughters. In
arriving at the $25,000 price for the property, respondent stated
that he had a sense of the property's worth based on an earlier
offer in l984 of $l9,900 that one of his clients made to Kathryn.
Respondent also considered comparable land values in the area.
Respondent testified that he strongly urged John to have the
property appraised and obtain independent counsel, but he did not
press the issue after John and Loretta failed to act on his
recommendations. Respondent believed that John, as a business-person, had the ability to determine whether the price of the
property was reasonable. Respondent never discussed his
intention to purchase the Drum Point property with Kathryn. He
did, however, obtain the following acknowledgment from John and
Loretta:
The undersigned acknowledge that they have
been represented by John Paul Doyle, who is
under contract to purchase from them certain
real property known as Lot 8 in Block l94,
located on Drum Point Road, in the Township
of Brick, Ocean County, New Jersey.
The sellers acknowledge that they have
entered into the contract freely and
voluntarily and have not been advised by
[respondent] on the contract. They further
acknowledge that they have been independently
satisfied that the sale price is a fair one
and have not been given any representation,
understanding, advice or opinion by
[respondent] as to its value.
Shortly after purchasing the Drum Point property, respondent
applied for a subdivision approval, which he obtained in mid-l988. Seven or eight months later, respondent sold the property
for $ll0,000 to Jenco Builders, Inc., respondent's client who had
offered to buy the property in l984.
Before the DRB, respondent's counsel stated that respondent
was no longer representing Jenco at the time of that sale.
According to respondent, his attorney-client relationship with
the Osborns, including Kathryn, terminated on February l3, l987
when she transferred title to the last of her property.
We are satisfied by clear and convincing evidence that respondent was guilty of unethical conduct while representing Kathryn in the preparation of her power-of-attorney, her wills,
and her estate plan. With regard to the power-of-attorney, we
find, as did the DRB, that
[r]espondent's action in this regard created
a conflict of interest situation because he
had represented Kathryn as executrix of
Marion's will, had acted (or still was
acting) as John's attorney, was admittedly
representing Kathryn in the power-of-attorney
matter, prepared the power-of-attorney at
John's, not Kathryn's, request and failed to
make full disclosure to Kathryn of the
attendant circumstances, to advise her to
consult with separate counsel or to obtain
Kathryn's consent to the representation.
Respondent's conduct in this regard clearly
violated RPC l.7.
We find, however, inadequate evidence to support a determination
that respondent's secretary had notarized the power-of-attorney
after it was “signed” by Kathryn.
Respondent also violated RPC l.7 when he prepared Kathryn's
l980 will. His failure to disclose to Kathryn his past and
present attorney-client relationship with John and Jack, to
advise Kathryn of the opportunity to be represented by
independent counsel, and to obtain her consent to his
representation created a conflict of interest in violation of RPC
l.7.
Regarding his representation of Kathryn, respondent's most
egregious conduct was his preparation of Kathryn's estate plan
and her 1985 will. Respondent, without Kathryn's knowledge,
engaged a tax attorney and tax accountant to create a complicated
estate plan that was different from the disposition of assets
provided for in Kathryn's prior l980 will. Respondent believed
that Kathryn understood the import of the estate plan. Support
for that belief is found in the testimony of the nursing home
employees, who treated Kathryn on a daily basis. Nothing in the
record compels a conclusion contrary to respondent's belief that
Kathryn understood the general concepts of the estate plan.
Kathryn's l985 will and estate plan most likely conformed
with her intent. She had raised John, sending him to the
University of Pennsylvania. She lived near him and watched Jack
grow up. Employees of the nursing home testified to the care,
attention, and love between John and Kathryn. Both Kathryn and
her husband were well maintained at the nursing home. After
Kathryn's illness, John managed the business of Camp Osborn. In
l987, when Marion's estate did not have sufficient funds to pay
estate taxes, John had contributed $20,000 of his personal funds
to pay the taxes. Moreover, Marion had named John as the
alternate executor of her will, and Stanley, the other brother,
left most of his estate to John and Jack and their wives.
Nonetheless, respondent's claim that he was representing
Kathryn, as well as John, Jack, and Loretta, alone required
disclosure to all the parties, advice to all the parties to seek
independent counsel, and a waiver from all the parties. An
examination of the totality of circumstances surrounding the
preparation of Kathryn's estate plan and her l985 will discloses
that respondent violated RPC l.4 by failing to keep Kathryn
informed so that she could make an informed decision, RPC l.7(a)
and (b) by representing conflicting interests without formal
consent and disclosure of the various interests, and RPC 5.4(c)
by allowing his legal services, particularly with respect to the
estate plan, to be influenced by John rather than his client,
Kathryn.
In addition, respondent failed to produce notes of the
November l984 meeting with Kathryn. In his file, respondent had
only several sheets from a legal pad that he used to record
Kathryn's wishes as to what to leave and to whom. In large
print, one sheet read "JACK," another "BART," and the third
"STANLEY." A fourth sheet had the numbers "One," "Five," "Ten"
and "Twenty" written on it. The fifth sheet contained the
following figures: "$l,000," "5,000," "l0,000," "20,000," and
"O." Respondent claims that he prepared the five sheets in
anticipation that Bartlett would contest Kathryn's will, just as
he had contested Marion's will.
Respondent, nevertheless, failed to take detailed notes of
the meeting, tape-record the meeting, or have a witness present.
Respondent assumed that Kathryn was in "good mental shape" and
that she knew what she was doing. Respondent based this
assumption on the nursing home staff's assurances, on comments
made by the Osborns, and, allegedly, on statements from Dr.
Bregman.
Faced with a situation fraught with conflicts of interest in
dealing with the will of a woman who had had a stroke and knowing
that one branch of Kathryn's family was not being left anything,
the branch that he did not represent, respondent failed to take
the precautionary step of documenting Kathryn's competency in
agreeing to the estate plan and the will or to urge her to obtain
outside counsel. The DRB found that such neglect constituted
gross negligence in violation of RPC l.l(a). The DEC found that
conduct to be akin to professional malpractice, rather than
ethical misconduct. We need not decide when the line of ordinary
negligence is passed. The clearly established conflicts of
interest and respondent's other ethical violations warrant the
discipline that we impose.
Respondent also violated RPC l.7 when he purchased the Drum
Point property from John and Loretta, who should have had
independent counsel. Likewise, he violated RPC l.8(a) when he
entered into the business transaction with his clients, and RPC
l.8(b) when he failed to advise Kathryn and/or John that the
value of the property could substantially increase if it was
subdivided, a fact an attorney with respondent's experience in
land use and municipal law would have known. Even if respondent
believed that he did not represent Kathryn after February l3,
l987, he obviously began negotiating with John for that property
on or before that date. Yet, he never advised Kathryn that he
was likely to purchase her property.
There remains the question of what discipline should be imposed. The purpose of discipline is not to punish the offender, but to protect the public. In re Goldstaub, 90 N.J. l, 5 (l982). That goal is consistent with our need to maintain the public's confidence in the integrity of attorneys. Ibid. “The severity of discipline to be imposed must comport with the seriousness of the ethical infractions in light of all the relevant circumstances." In re Nigohasian, 88 N.J. 308, 3l5 (l982).
Respondent's conduct regarding his preparation of Kathryn's power-of-attorney, her wills, and the estate plan discloses that respondent did not appreciate the importance of the concept of conflicts of interest. Respondent claims that he was attempting to represent “family” interests in doing that which was best for the family. However, “ignorance or gross misunderstanding of these rules does not excuse misconduct." In re Berkowitz, l36 N.J. l34, l47 (l994).
Generally, we have found that in cases involving conflicts of interest, absent egregious circumstances or serious economic injury to the clients involved, a public reprimand constitutes appropriate discipline. Id. at l48 (citations omitted). When an attorney's conflict of interest causes serious economic injury to clients, however, we have imposed a period of suspension. See In re Dato, l 30 N.J. 400 (l992) (imposing one-year suspension on
attorney who purchased client's property at below fair-market
price); In re Humen, l
23 N.J. 289 (l99l) (imposing two-year
suspension on attorney who was engaged in numerous sensitive
business transactions with client in which attorney's interests
were directly in conflict with those of client); In re Harris,
ll5 N.J. l8l (l989) (imposing two-year reciprocal suspension for
inducing one client to lend large sums to another client of whom
respondent was creditor, without informing first client of
financial difficulties of borrowing client); In re Reiss, l0l
N.J. 475 (l986) (imposing one-year suspension on attorney who
exhibited gross disregard of conflicts of interest with clients
who were also partners); In re Gallop,
85 N.J. 3l7 (l98l)
(imposing six-month suspension on attorney who took deed to
housekeeper's real property, to her disadvantage); In re Hurd,
69 N.J. 3l6 (l976) (imposing three-month suspension on attorney who
advised client to transfer title to real property to attorney's
sister for twenty percent of property's value).
Unlike the respondents in those cases, respondent's
unethical conduct with respect to his representation of Kathryn
was not for his own pecuniary benefit. His actions, however, did
cause hardship to his clients, John and Jack, who were involved
in a will contest and then in a malpractice action against
respondent. His actions also very likely resulted in Kathryn's
estate being distributed in a manner that did not conform with
her probable intent.
Respondent's purchase of the Drum Point property, however,
was for his own benefit. Repeatedly, we have warned attorneys of
the dangers of engaging in business transactions with their
clients. E.g., In re Humen, supra, l23 N.J. at 300. An attorney
should refrain from engaging in a business transaction with a
client who has not obtained independent legal advice on the
matter. In re Barrett,
88 N.J. 45l, 453 (l982). We apply that
rule because an attorney's judgment can be impaired by his self-interest. In such a situation, an attorney has a duty to explain
carefully, clearly, and cogently why independent advice is
needed. In re Humen, supra, 123 N.J. at 300.
In view of respondent's background in real estate and land
use, he either knew that a subdivision of the property was
possible, if not likely, and that a subdivision would increase
the price of the property significantly. Although he had John
and Loretta sign an acknowledgment, that document did not include
any acknowledgment of conflict, no statement concerning the
establishment of the price, and no mention of the possibility of
subdivision. Moreover, he never explained to Kathryn, when she
was transferring the property to John, that it was likely that he
would purchase it.
Respondent's misconduct was not just limited to a single
aberrant act. Nor was he a young, inexperienced attorney. His
conduct continued over an eight-year period, and although the
conduct involved only one family, the ethical transgressions were
many.
Yet, we are mindful of the many tributes to respondent's
impeccable character that we have received and the respect that
fellow members of the bar, and the public at large, hold for
respondent. He has had an exemplary career. Furthermore, his
misconduct was not the result of fraudulent conduct, but rather
from a lack of good judgment, which except for the land purchase,
was not for his pecuniary gain. If it were not for respondent's
conduct with respect to the Drum Point property, we would not
impose a suspension. Under the circumstances, however, we find
that respondent should be suspended from the practice of law for
six months.
Respondent shall reimburse the Ethics Financial Committee
for appropriate administrative costs.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
15 September Term 1996
IN THE MATTER OF :
JOHN P. DOYLE, : ORDER
AN ATTORNEY AT LAW :
It is ORDERED that JOHN P. DOYLE of BRICK, who was admitted
to the bar of this State in 1967, is hereby suspended from the
practice of law for a period of six months, effective December
16, 1996, and until the further Order of the Court; and it is
further
ORDERED that respondent be restrained and enjoined from
practicing law during the period of his suspension and that he
comply with Rule 1:20-20, which governs suspended attorneys; and
it is further
ORDERED that the entire record of this matter be made a
permanent part of respondent's file as an attorney at law of this
State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight
Committee for appropriate administrative costs incurred in the
prosecution of this matter.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at
Trenton, this 22nd day of November, 1996.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-15 SEPTEMBER TERM 1996
Application for
Disposition Six-Month Suspension
Decided November 22, 1996
Order returnable
Opinion by PER CURIAM