(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 June 20, 1995 -- Decided July 28, 1995
PER CURIAM
In November 1992, a judge of the Superior Court advised the District IV Ethics Committee (DEC)
that the court was unable to contact Michael D. Kasson, Esq., at his office in Pitman, New Jersey, to discuss
his civil cases in Camden County. An investigator went to the address set forth on Kasson's letterhead as the
New Jersey office of Spencer Wertheimer, a Pennsylvania attorney. The investigator attempted to locate the
office but was unable to find it or an office under the name of either Michael B. Kasson or Spencer
Wertheimer. The rental agent for the building informed the investigator that although rent was being paid,
the agent had never seen anyone using the property as an office.
Kasson was charged in a formal ethics complaint with failure to maintain a bona fide office and
failure to maintain required trust and business accounts. At the DEC hearing, Kasson was unable to tell the
hearing panel how to get to the Pitman office and was unable to describe the building in which the office was
located. Kasson testified that he had been in an automobile accident in August 1992 and that thereafter he
had been unable to travel to the Pitman office. Kasson acknowledged that after October 1992, a paralegal
who had been staffing the office had stopped working due to family illness. Kasson stated that Wertheimer
sent an employee to the office every other week to pick up the mail. Kasson left Wertheimer's employ in
March 1993.
The DEC unanimously found that Kasson had failed to maintain a bona fide office and had failed to
maintain trust and business accounts.
In its review, the DRB agreed that there were record-keeping violations but that the infraction did
not rise to a level requiring discipline. A majority of the DRB did not find a violation of the bona fide office
rule, although the DRB noted that Kasson was placed in a difficult position by his employer in respect of the
Pitman office.
HELD: Michael D. Kasson is reprimanded for his failure to maintain a bona fide office in New Jersey.
Ethical standards requiring that attorneys maintain a bona fide office in New Jersey apply to both
the attorney-employer and the attorney-employee.
1. The bona fide office rule requires more than an occasional attendance in a bona fide office by an attorney
and more than an answering service unrelated to a place where business is conducted. The rule requires a
responsible person at the office to answer questions posed by courts, clients, or adversaries so that accurate
information about the attorney's whereabouts and competent advice from the attorney can be obtained within
a reasonable period of time. Kasson's Pitman office did not meet those requirements. There was no
attorney or responsible person acting on the attorney's behalf who could be reached in person or by
telephone during normal business hours. The frustration of a judge's attempt to schedule trial matters when
confronted with this situation cannot be tolerated. (pp. 3-5)
2. Kasson argued that he should not be disciplined because he was simply Wertheimer's employee and, as
such, had no control over the office. A New Jersey attorney, by reason of such an employment situation, is,
nonetheless, responsible to conform to applicable ethical standards. (pp. 5-6)
3. Coincident with the recognition of the right to practice under the name of the non-resident firm is the
corresponding burden to ensure that employees of the firm licensed to practice in New Jersey shall not be
made unable to comply with the ethical requirements for practicing law in New Jersey. Consequently,
although Kasson should be reprimanded for his failure to maintain a bona fide office for the practice of law
in New Jersey, his employer should not escape responsibility, having created the conditions that placed
Kasson in this situation. Thus, the administrative costs of the appeal will be assessed against Kasson's
employer, Spencer Wertheimer. Because Wertheimer has not been heard in this matter, he is given sixty
days to apply to the Court to be relieved of these conditions by showing that he was not responsible for the
failure to maintain a bona fide office. (pp. 6-7)
4. In future disciplinary matters concerning the failure to maintain a bona fide office in New Jersey, notice
of such potential responsibility shall be given to employers who have the managerial responsibility to provide
New Jersey attorneys with bona fide offices. (p. 7)
So Ordered.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN, and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
129 September Term 1994
IN THE MATTER OF
MICHAEL D. KASSON,
An Attorney at Law.
Argued June 20, 1995 -- Decided July 28, 1995
On an Order to show cause why respondent
should not be disciplined.
Walton W. Kingsbery, III, Deputy Ethics
Counsel, argued the cause on behalf of Office
of Attorney Ethics.
Michael D. Kasson argued the cause pro se.
PER CURIAM
This matter arises from a Report of the Disciplinary Review
Board (DRB) recommending the dismissal of charges alleging that
respondent had failed to maintain a bona fide office for the
practice of law in New Jersey. Two members of the DRB dissented,
believing that the conduct warranted a private reprimand. Based
on our independent review of the record, we find that the conduct
warrants a reprimand.
In November 1992, a judge of the Superior Court advised the
District IV Ethics Committee that the court was unable to contact
respondent, Michael D. Kasson, Esq., at his office in Pitman, New
Jersey, to discuss his civil cases in Camden County. An
investigator went to the address set forth on respondent's
letterhead as the New Jersey office of Spencer Wertheimer, a
Pennsylvania attorney. That address was listed as 8 North
Broadway, Suite 105, Pitman, New Jersey. A sign at the building
with respondent's name misspelled as "Kaffon" indicated that
respondent's office was located in Suite 2B (unlike respondent's
letterhead, which listed the address as Suite 105). The
investigator attempted to locate the office on the second floor
and throughout the rest of the building, but was unable to find a
Suite 2B, Suite 105, or an office under the name of Michael B.
Kasson or Spencer Wertheimer. The rental agent for the building
informed the investigator that although rent was being paid, the
agent had never seen anyone use the property as an office.
A formal complaint charged respondent with violations of
Rule 1:21-1(a) (failure to maintain a bona fide office) and Rule
1:21-6 (failure to maintain required trust and business
accounts). At the District Ethics Committee (DEC) hearing,
respondent was unable to tell the hearing panel how to get to the
Pitman office and unable to describe the building in which the
office was located. He testified that he had been in an
automobile accident in August 1992, and that thereafter he had
been unable to travel to the Pitman office. He acknowledged that
after October 1992, a paralegal who had been staffing the office
had stopped working due to family illness. Respondent stated
that Wertheimer sent an employee to the office every other week
to pick up the mail. Respondent left Wertheimer's employ in
March 1993.
The DEC unanimously found that respondent had failed to
maintain a bona fide office and had failed to maintain trust and
business accounts. On its de novo review, the DRB agreed that
there were record-keeping violations, but found that because the
respondent's work as an employee of Wertheimer had not resulted
in the expenditure or receipt of clients' or business funds in
New Jersey, that infraction did not rise to a level requiring
discipline. The majority of the DRB did not find a violation of
Rule 1:21-1(a) (requiring maintenance of bona fide office),
noting that "[a]lthough respondent is a member of the bar and has
responsibility for his own compliance with the rules, he was
placed in an extremely difficult position by his employer with
regard to the Pitman office." We issued an order to show cause
to review the DRB's recommendation.
"For many years, New Jersey had required all attorneys who
practice here to be domiciliaries of the State." In re Sackman,
90 N.J. 521, 526 (1982). Subsequently, the Court revised the
rule "to require either domicile or maintenance of a principal
office as a condition to practicing law in [New Jersey]." Id. at
527. That rule was then amended in 1978 to require a domiciliary
to maintain a bona fide office in this State. Ibid. In further
recognition of concerns raised about the requirements of a
principal office for a nonresident attorney, as opposed to the
bona fide office required for a domiciliary attorney, the Court
decided, as a matter of policy, to amend the rule to remove the
distinction between domiciliaries and non-domiciliaries. Id. at
528-29. We believed that that response would not "stifle the
interstate movement of attorneys," but rather would allow
"interstate movement while at the same time assuring a sufficient
degree of competence, accessibility and accountability." Id. at
533.
Rule 1:21-1(a) defines a bona fide office:
For the purpose of this section, a bona fide
office is a place where the attorney or a
responsible person acting on the attorney's
behalf can be reached in person and by
telephone during normal business hours. A
bona fide office is more than a maildrop, a
summer home that is unattended during a
substantial portion of the year, or an
answering service unrelated to a place where
business is conducted.
That Rule requires more than an occasional attendance in a bona
fide office by an attorney and more than an answering service
unrelated to a place where business is conducted. It requires a
responsible person at the office to answer questions posed by
courts, clients, or adversaries so that accurate information
about the attorney's whereabouts and competent advice from the
attorney can be obtained within a reasonable period of time. It
is insufficient for an employee to receive and transmit messages
with nothing more.
There can be no doubt that respondent's Pitman office did
not meet those requirements. Surely since October 1992, when the
paralegal was no longer employed at the office, there was neither
an attorney nor a responsible person acting on the attorney's
behalf who could be reached in person or by telephone during
normal business hours. The frustration of a judge's attempt to
schedule trial matters when confronted with this situation cannot
be tolerated.
Respondent argued that he should not be disciplined because
he was simply Wertheimer's employee and, as such, had no control
over the office. In his brief, respondent states that Wertheimer
"supplied the office, a phone, a desk, a filing cabinet, a few
chairs, and * * * a paralegal who was willing to work for minimum
wage." But Wertheimer "refused to give [r]espondent any money to
start the required bank accounts in New Jersey." Due to his
employer's method of hiring, which was to spend the least amount
of money possible, there were serious staffing problems.
We acknowledge the difficulties respondent encountered when
employed under such circumstances. We are nonetheless unable to
agree that a New Jersey attorney is, by reason of such an
employment situation, not responsible to conform to applicable
ethical standards. The requirement that attorneys maintain a
bona fide office represents, not an effort at protectionism, but
a reasonable effort to assure "competence, accessibility and
accountability" of attorneys for the benefit of clients, courts,
counsel, and parties. In re Sackman, supra, 90 N.J. at 533. As
the U.S. District Court for the District of New Jersey has
explained, our Court Rules "ensure that attorneys representing
New Jersey clients in New Jersey courts are sufficiently familiar
with state law and practice to represent their clients
knowledgeably and effectively." Ingemi v. Pelino & Lentz,
866 F.
Supp. 156, 162 (1994).
In this case, the letterhead used by the firm included the
names of both Wertheimer and Kasson. In recognition of the
interstate practice of law, we have permitted a law firm with
offices in more than one jurisdiction to use the same name in
each jurisdiction, provided that the identification of all
lawyers of the firm in New Jersey shall indicate the
jurisdictional limitations on those not licensed to practice in
New Jersey. Coincident with the recognition of the right to
practice under the name of the nonresident firm is the
corresponding burden to ensure that employees of the firm
licensed to practice in New Jersey shall not be made unable to
comply with the ethical requirements for practice in New Jersey.
Consequently, although we believe that respondent should be
reprimanded for his failure to maintain a bona fide office for
the practice of law in New Jersey, his employer should not escape
responsibility, having created the conditions that placed the
respondent in this untenable situation.
We reprimand respondent for his failure to maintain a bona
fide office in New Jersey. We also direct that the
administrative costs of the appeal be assessed against the
employer, Spencer Wertheimer. Because Wertheimer has not had the
opportunity to be heard in this matter with respect to the
allegations made by Kasson, we afford him the opportunity to
apply to the Court to be relieved of these conditions by showing
that he was not responsible for the failure to maintain a bona
fide office. In future disciplinary matters concerning the
failure to maintain a bona fide office in New Jersey, notice of
such potential responsibility shall be given to employers who
have the managerial responsibility to provide New Jersey
attorneys with bona fide offices.
Based on the foregoing, we find that a reprimand of
respondent is warranted. We further provide Spencer Wertheimer
with sixty days to respond to our disposition concerning the
violation of Rule 1:21-1(a) and the assessment of administrative
costs.
So ordered.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
Garibaldi, Stein, and Coleman join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
129 September Term 1994
IN THE MATTER OF :
MICHAEL D. KASSON, : ORDER
AN ATTORNEY AT LAW :
It is ORDERED that MICHAEL D. KASSON of PHILADELPHIA,
PENNSYLVANIA, who was admitted to the bar of this State in 1987,
is hereby reprimanded for violating Rule 1:21-1(a) (failure to
maintain a bona fide office) by his conduct as the New Jersey
associate of Pennsylvania attorney Spencer Wertheimer; 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's employer at the time of the
ethical violations, Spencer Wertheimer of PHILADELPHIA,
PENNSYLVANIA, reimburse the Disciplinary Oversight Committee for
appropriate administrative costs incurred in the prosecution of
this matter; and it is further
ORDERED that any application by Spencer Wertheimer to be
relieved of the reimbursement obligation be filed with the Court
within sixty days of the filing date of this Order.
WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at
Trenton, this 28th day of July, 1995.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-129 SEPTEMBER TERM 1994
Application for
Disposition Reprimand
Decided July 28, 1995
Order returnable
Opinion by PER CURIAM