(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 October 6, 1997 -- Decided November 21, 1997
PER CURIAM
Robert H. Obringer was admitted to the bar of New Jersey in 1982. At the time of the alleged
offenses leading to this disciplinary matter, Obringer practiced in Marlton, New Jersey and specialized in
bankruptcy law. His name was on a list used by the United States Trustee for the District of New Jersey to
appoint trustees in bankruptcy proceedings.
Obringer had been appointed trustee in a case in which the debtor was Gaskill Construction, Inc.
(Gaskill). Serving in that capacity, Obringer, on November 20, 1995 filed with the Bankruptcy Court the
appropriate notice informing the Court that as trustee, he had disbursed all of the funds in the trustee's
account, with the exception of $20,733.93, representing 1) a claim for $8,902.62 filed by LCW Leasing, Co.
c/o Ronnie Schwartz, Esq. and 2) a claim for $11,831.31 filed by Equileasing. Attached to the notice was a
check for $20,733.93 payable to the Registry of the Court. Obringer deposited those funds in court because
he was unable to locate the two creditors. In December 1995, Obringer filed the appropriate certification
asserting that he had completed all requisite duties as trustee and requesting that he be discharged.
Two months later, on February 21, 1996, Obringer opened a post office box in Audubon, New
Jersey. He then created a letterhead for a law firm, Ciob & Associates (C&A), showing a New Jersey office
address at the post office box in Audubon. On February 27, Obringer sent a letter to Sharon Newman,
Financial Deputy of the United Sates Bankruptcy Court. The letter was purportedly signed by Ronnie
Schwartz of C&A, wherein he declared that he represented the two creditors and sought payment of the
funds due them. Attached to the letter were two documents: a letter dated January 18, 1996 purporting to
be from Obringer to Ronnie Schwartz, and a release, purportedly signed by Equileasing personnel,
authorizing Schwartz to collect the funds due from Gaskill. Based on this letter, the Bankruptcy Court
released the funds held in escrow in the form of two checks sent to C&A at the Audubon post office box.
Obringer forged endorsements and deposited the monies in a checking account he had opened in his name.
Obringer wrote three checks against these funds: one for over $10,000 to the IRS; one for $5,600 payable to
himself to cover outstanding debts; and one for just over $4000 to pay his American Express charge account
bill.
In May, 1996, Obringer was diagnosed with cancer of the mouth. He underwent surgery and
treatment, requiring a lengthy absence from the office. His firm members monitored his mail and, in so
doing, discovered Obringer's scheme and theft. The firm reported the incident to the local district ethics
committee and repaid the Bankruptcy Court. Obringer pleaded guilty to mail fraud in federal court for his
theft of the $20,733.93 from the Bankruptcy Court registry. He was sentenced to a term of probation.
The Office of Attorney Ethics (OAE) filed a complaint charging Obringer with knowingly
misappropriating escrow funds in violation of RPC 1.15; knowingly making a false statement to a tribunal in
violation of RPC 3.3 (a)(1); and engaging in conduct involving dishonesty, fraud, deceit and
misrepresentation in violation of RPC 8.4 (c). A Special Master conducted a hearing on behalf of the local
district ethics committee. At the conclusion of the hearing, the Special Master found that Obringer had
violated Rules of Professional Conduct (RPCs) 3.3 (a)(1), 8.4 (b) and © and recommended a two-year
suspension.
Obringer provided evidence in mitigation of discipline, including the following: the decline and final
end to his marriage between late 1995 and early 1996; his problems handling the departure of a former
partner from the law firm; and the stroke and other serious illness of Obringer's father that resulted in the
father's death in August 1996. Obringer also proffered the reports of two mental health professionals, a
psychologist and psychiatrist, who both agreed that Obringer suffered from a personality disorder with self-defeating features and features of anxiety and guilt that caused him to suffer from a significantly reduced
mental capacity at the time which contributed to his unethical conduct. The conduct was considered both
mental health professionals to be a result of Obringer's guilt over leaving his wife for another woman. Both
reports suggested that Obringer's conduct was aberrational and was unlikely to recur.
The Disciplinary Review Board (DRB) agreed with the Special Master that Obringer committed the
following ethical infractions: making false statements to a tribunal, RPC 3.3 (a)(1); stealing funds from a
tribunal that reflects adversely on a lawyer's honesty, trustworthiness and fitness to be a lawyer, RPC 8.4
(b); and engaging in conduct involving, fraud, deceit, dishonesty or misrepresentation, RPC 8.4 (c). The
DRB unanimously recommended disbarment. Based on that recommendation, the Supreme Court ordered
Obringer to show cause why he should not be disbarred or otherwise disciplined.
HELD: Robert H. Obringer's conduct so impugned the integrity of the legal system that disbarment is
required.
1. The record establishes by clear and convincing evidence that Obringer committed the three ethical
violations found by the DRB. He filed fictitious documents with the Bankruptcy Court registry to induce
court staff to transmit to him funds that did not belong to him. That misconduct, in violation of RPC 3.3
(a)(1), coupled with renting the post office box, opening a checking account, and forging endorsements on
the two checks sent by the bankruptcy court clearly violated RPC 8.4 (c). The elaborate scheme designed to
commit the theft of funds is a clear violation of RPC 8.4 (b). (pp. 13-14)
2. Although this case does not involve either a knowing misappropriation of client funds from an attorneys
trust account as occurred in In re Wilson or a theft by an attorney from his or her partners as occurred in In
re Siegel, the totality of the circumstances makes this theft just as egregious. The circumstances of this case
demonstrate that Obringer's theft was not an impulsive act, it was premeditated. (pp. 14-15)
3. Obringer's reliance on In re Hoerst is misplaced. (pp. 15-16)
4. As the DRB found, the factors alleged in mitigation do not overcome the egregiousness of this elaborate
scheme to steal money for no reason other than greed. The record clearly and convincingly establishes that
Obringer poisoned the well of justice to carry out his well planned theft. He chose to engage in serious
breaches of the RPC's in order to prevent his wife from discovering his “double life.” Because of the
egregious nature of the conduct, the ethical deficiencies are intractable and irremediable. (pp. 16-19)
Robert H. Obringer is disbarred from the practice of law.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
D-
67 September Term 1997
IN THE MATTER OF
ROBERT H. OBRINGER,
An Attorney at Law.
Argued October 6, 1997 -- Decided November 21, 1997
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Michael J. Sweeney, Assistant Ethics Counsel,
argued the cause on behalf of the Office of
Attorney Ethics.
Carl D. Poplar argued the cause for
respondent (Poplar & Eastlack, attorneys;
Teri S. Lodge, on the brief).
PER CURIAM
This is an attorney-disciplinary case. Respondent was
admitted to the bar of New Jersey in 1982. At the time of the
alleged offenses he practiced in Marlton, New Jersey where he
specialized in bankruptcy law. The Office of Attorney Ethics
filed a complaint charging respondent with knowingly
misappropriating escrow funds contrary to RPC 1.15, knowingly
making a false statement to a tribunal contrary to RPC 3.3(a)(1),
and engaging in conduct involving dishonesty, fraud, deceit and
misrepresentation contrary to RPC 8.4(c).
A Special Master conducted a hearing on behalf of District
XIV Ethics Committee. At the conclusion of the hearing, the
Special Master concluded that respondent violated RPC 3.3(a)(1),
RPC 8.4(b), and RPC 8.4(c), and recommended a two-year
suspension. The Disciplinary Review Board (DRB) agreed with the
Special Master that respondent committed the following ethical
infractions: making false statements to a tribunal, RPC
3.3(a)(1); stealing funds from a tribunal that reflects adversely
on a lawyer's honesty, trustworthiness and fitness to be a
lawyer, RPC 8.4(b); and engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation, RPC 8.4(c). The DRB
unanimously recommended disbarment. Based on that
recommendation, this Court ordered respondent to show cause why
he should not be disbarred or otherwise disciplined.
After conducting a de novo examination of the record, we
adopt the largely uncontested factual findings made by the DRB:
Respondent specialized in bankruptcy law.
His name was on a list used by the United
States Trustee for the District of New Jersey
to appoint trustees in bankruptcy
proceedings. Respondent was appointed as
trustee in a case in which the debtor was
Gaskill Construction, Inc. (“Gaskill”).
Serving in that capacity, on November 20,
1995, respondent filed a Notice Depositing
Funds to the Registry of the Court Pursuant
to Local Rule 12(b). The notice recited that
respondent, as trustee, had disbursed all of
the funds in the trustee's account, with the
exception of $20,733.93, representing (1)
claim number 53 for $8,902.62 filed by LCW
Leasing Co., c/o Ronnie Schwartz, Esq., 1500
The Fidelity Building, Philadelphia,
Pennsylvania 19109 and (2) claim number 56
for $11,831.31 filed by Equileasing, 750
Third Avenue, New York, New York 10017.
Respondent attached to the notice a check for
$20,733.93 payable to the Registry of the
Court. Respondent deposited those funds in
court because he asserted that he was unable
to locate those two creditors.
On December 14, 1995, respondent filed a
Trustee's Certification of Completion of
Estate Administration and Application for
Discharge asserting that he had completed all
the requisite duties as trustee and
requesting that he be discharged. Although
the record does not contain any documentation
on the issue, it is presumed that respondent
was discharged as the trustee in the Gaskill
bankruptcy matter.
Two months later, on or about February 21,
1996, respondent opened Post Office Box 254,
Audubon, New Jersey 08206. He then created a
letterhead for a law firm, Ciob & Associates,
showing an office address in Elkins Park,
Pennsylvania and a New Jersey address of Post
Office Box 254, Audubon, New Jersey. On
February 27, 1996, respondent sent a letter
to Sharon Newman, Financial Deputy of the
United States Bankruptcy Court. Although
respondent wrote the signature on the letter,
it purported to be signed by a Ronnie
Schwartz, Esq., of Ciob & Associates. The
letter declared that Ronnie Schwartz
represented two creditors in the Gaskill
bankruptcy matter and requested payment of
the funds due them. Attached to the February
27, 199[6] letter were two documents: a
letter dated January 18, 1996 purporting to
be from respondent to Ronnie Schwartz and a
release, purportedly signed by Equileasing
personnel, authorizing Ronnie Schwartz to
collect the funds due from Gaskill.
Based on the February 27, 199[6] letter, the bankruptcy court entered two orders dated March 8, 1996 directing that checks in the amount of $11,831.31 and $8,902.62 be made payable to Equileasing and LCW Leasing Co., respectively. The checks, dated April 8, 1996, were issued to the name of Ronnie Schwartz and sent to Ciob & Associates at the Audubon post office box. Respondent had opened a checking account at Community National Bank bearing number 42-03576 in the name of Robert H. Obringer, EAF Gaskill. He “signed” Ronnie Schwartz's name as endorsements on the checks and deposited them
into the new checking account. Respondent
wrote three checks against these funds to pay
for certain personal expenses. One check for
$10,354 was issued to the Internal Revenue
Service on April 15, 1996; another for $5,600
was payable to himself on April 19, 1996 and
used to pay outstanding debts; and a third
one for $4,126.48 was issued to American
Express to pay a personal charge account.
In May 1996, respondent was diagnosed with
cancer of the mouth. He underwent surgery
and a lengthy period of hospitalization. In
his absence from the office, the Levenson
firm members monitored his mail. Apparently,
respondent had the bank statements from the
Community National Bank checking account sent
to his office address. When the Levenson
firm noticed a bank statement purporting to
be from the Gaskill checking account, it
investigated the matter and learned the
truth. By letter dated July 9, 1996, the
partners of the Levenson firm reported
respondent's conduct to the District IIIB
Ethics Committee secretary. Respondent
signed the letter, indicating that it was
sent with his knowledge and consent. The
Levenson firm also made restitution of the
funds to the court registry.
At the hearing before the special master, it
was agreed that certain evidence submitted on
behalf of respondent would be considered in
mitigation, but not as exculpation, for his
misconduct. Four character witnesses
testified in respondent's behalf: Donald
Levenson, one of his law partners; Charles
Nathanson, a former partner in the Levenson
firm; Joseph McCormick, a Haddonfield
attorney with a bankruptcy practice; and
Morton Batt, non-lawyer bankruptcy trustee.
All four testified generally that respondent
was trustworthy, with good morals and with an
outstanding reputation for honesty.
Respondent also testified at the ethics hearing. He contended that, in the latter part of 1995 and early 1996, he began to experience serious personal problems, including marital difficulties and his eventual move out of the marital home. Respondent also alluded to problems dealing
with the departure of Charles Nathanson from
the Levenson firm; respondent felt that he
had let another partner manipulate him into
forcing Nathanson to leave the firm. At the
same time, respondent's father, who resided
in Pittsburgh, had suffered a stroke and lost
both legs as well as the use of his right
arm. Respondent's father passed away in
August 1996.
According to respondent, in retrospect,
taking the funds from the court registry did
not make any sense because he had funds
available from several sources: individual
retirement accounts (“IRA”), a life insurance
policy against which he could have borrowed,
a loan from Donald Levenson, and large fees
coming due from files he was about to close.
When asked for an explanation for his
misconduct, respondent speculated that he was
sending himself a “horrible message that the
circumstance I was in had to change.” He
added that, although he was diagnosed with
cancer shortly after the above events took
place, his physician could not confirm that
the disease had affected him in such a way as
to account for his misconduct.
On cross-examination, respondent testified
that, once he paid the funds into the court
registry, he no longer had control over them
and did not consider them to be escrow funds.
Respondent remarked that the funds would
belong to the federal government after three
years, if no creditor claimed them. He
conceded that, when he applied for payment
from the court, he knew that the court
registry was holding the money in escrow for
the two creditors. Respondent also admitted
that, when he opened the bank account and
post office box to carry out his scheme of
misappropriating the funds, he was aware of
what he was doing, but felt “controlled” by
the event.
With regard to the other sources of money available to him, respondent acknowledged that he would have incurred interest and penalties if he were to withdraw an IRA. He added that, if he had borrowed against his life insurance policy, his wife would have
found out because either she or their
children were the beneficiaries.
In mitigation, respondent submitted the
report of two mental health professionals,
Gerald Cooke, Ph.D, a psychologist, and
Robert L. Sadoff, M.D., a psychiatrist. Dr.
Cooke conducted a psychological evaluation of
respondent and submitted a report dated
January 5, 1997. He discussed with respondent
the circumstances surrounding the
misappropriation of funds from the court
registry. According to the report,
respondent gave the following account of
those events:
He [Mr. Obringer] says that in
February of 1996 he was listening
to Rush Limbaugh about waste in the
government and thought that there
was $20,000 that was going to go to
the Federal Government and he
decided to retrieve that money for
himself. When asked why, after a
lifetime in which he had not
engaged in any illegal activity, he
did this, and did not reject the
idea Mr. Obringer was at a loss to
explain it except to say that in a
number of areas in his life he has
made decisions without really
stopping to think them out. . . .
[H]e did not seem to realize the
coincidence in time: That is, that
he basically enacted this scheme
within one to two days prior to
leaving his wife. Subsequent
activities related to the charges
extended to May 3 of 1996,
predating his diagnosis of cancer
and his operation, so it is clear
that the cancer did not have
anything to do with it. . . .
Several other aspects of this situation were discussed with Mr. Obringer. This examiner asked him if he needed money at that time. His response to that was 'yes and no.' He indicates that he had run up the balances on his credit cards because of trips, dinners, and
presents associated with Betsy
[respondent's paramour]. By the
same token he indicates that he
could have easily cashed in an IRA
or stopped doing charitable work
and bill more time or finish up a
Trustee case which would have paid
him $75,000. When asked how he
justified or rationalized his
behavior he indicated that he did
not. He simply did not stop and
think. This examiner believes,
however, that the nature of the
process clearly required some
thought and planning and Mr.
Obringer is either not sharing his
justification or really was unaware
of why he acted the way he did,
other than the above mentioned
comments by Rush Limbaugh.
Dr. Cooke diagnosed respondent as suffering
from a personality disorder, not otherwise
specified, with self-defeating features and
an adjustment disorder with depressed mood
and features of anxiety and guilt. Dr. Cooke
discussed the effect these disorders had on
respondent's actions:
Regarding the issue of whether Mr. Obringer's mental state at the time meets the criteria for 'diminished capacity' I would state the following: While Mr. Obringer has acted without sufficient thought at a number of times throughout his life and then had guilt for it, he has never acted in an antisocial or criminal manner and from that perspective this is an isolated and idiosyncratic behavior which is uncharacteristic of his general personality functioning. It is further my opinion, as contained in the text of this report, that during the period in which he engaged in this activity he was under an exacerbation of his generally higher then average tension level due to his internal conflict and guilt over leaving his marriage to be with another woman.
While the obtaining of the post
office box was on 2/21, this, in
and of itself, did not yet
constitute an illegal act. The
fact that he actually put the
illegal act into motion the day
before he left his wife is, in this
examiner's opinion, important in
the light of the personality
dynamics discussed above. This
examiner usually does not believe
that individuals who commit
criminal acts want to get caught
and I generally write that off as a
trite and incorrect phase.
However, in understanding Mr.
Obringer's personality functioning
going as far back as his mid-teenage years indicate that guilt
is an important part of his
personality structure and the fact
that he put this scheme into action
one to two days prior to leaving
his wife is consistent with an
individual who, out of guilt, had
an unconscious need to punish
himself and committed an act in
such a way that would ensure that.
Thus, in my opinion he was
suffering from a significantly
reduced mental capacity at that
time which contributed directly to
the commission of the offense.
Similarly, in his January 16, 1997 report,
Dr. Sadoff gave the following summary of
respondent's recitation of the events
surrounding the misappropriation of funds:
It took several weeks or months for him to set up the problem which causes him his current legal difficulty. He said it was not 'a one shot deal.' He said there were a number of different steps that had to be taken along the way. He states as he thinks about what happened, he believes that once he started the journey, he was not able to stop. He indicates, for example, that he had to open a post office box, had to get checks made
up and had to open a bank account.
He said he made the mistake of
having the checks mailed to him at
the law firm office address rather
than at another address.See footnote 1 He said
there were several weeks in between
steps. As he looks back on it, he
states, he could have stopped at
any point along the way if he chose
to do so. He said he became so
caught up in the matter that he
just felt he was not able to stop.
Dr. Sadoff's report also noted that
respondent had been a priest and had agreed
to be ordained primarily because he did not
want to disappoint his parents' expectations.
When he left the priesthood, his pastor told
him that, if he could not be faithful to the
church, he could not be faithful to anyone
and he could not have a successful marriage.
According to Dr. Sadoff, respondent had a lot
of guilt about his wife, Angela, and about
his professional success. As to the reason
for respondent's misconduct in this matter,
Dr. Sadoff observed in his report:
He said he just cannot explain why
he would break the law as he did in
order to get this money when he
really did not need it. I did ask
him what he did with the money, and
he said he paid $10,000 for taxes.
He said he had an IRA that he could
have used if he needed that. He
said he also wanted to fix up
Betsy's home and that is why he
wanted the extra money. He said
that way Angela would [not] have
been aware of the money that would
have been used for Betsy. He
states he also wanted to pay off
his American Express bill, but
that, he said, he could have done
by taking money from another
account.
With regard to respondent's mental condition,
Dr. Sadoff concluded:
I would agree with Dr. Cooke and
his diagnoses on Mr. Obringer. I
feel very strongly that the major
issue here is one of guilt for
behavior that Mr. Obringer has
expressed. He has guilt for
decisions that he has made over
many years of his life. He has
remembered the statement of his
pastor of over 10 years ago, that
if he could not be faithful to God,
he could not be faithful to himself
or to Angela, and his marriage was
doomed. Mr. Obringer has lived out
that prediction and has destroyed
his marriage with Angela. He has
had other areas of decision making
for which he has felt guilt and for
which he sought, unconsciously,
punishment.
I would agree that the timing in
this case is very important in
terms of leaving his wife, taking
up with Betsy and the illness of
his father, the subsequent death of
his father and the development of
cancer in Mr. Obringer, reminiscent
of the cancer in his mother which
led to her death.
Therefore, I would agree that Mr. Obringer committed this act while suffering from the diagnoses noted, i.e., personality disorder, NOS [not otherwise specified], and adjustment disorder, with depressed and anxious mood. These diagnoses, in my opinion, led to a reduced mental capacity that was not a result of voluntary use of drugs or other intoxicants. His behavior is clearly related to his feeling of guilt and his need for punishment. Also, it is my opinion, within a reasonable medical certainty, that Mr. Obringer's mental condition or diminished capacity was a contributing factor in the
commission of these acts. Clearly,
he was not antisocial, has not had
a pattern of antisocial behavior in
the past and led a very
constructive and productive life.
I would agree that this is an
idiosyncratic event in a relatively
long term constructive life of Mr.
Obringer. . . .
It is my opinion, also within
reasonable medical certainty, that
these acts of Mr. Obringer are
unlikely to recur, that they were
unusual and were an aberration for
him, not consistent with his usual
method of honest, constructive
living.
Respondent pleaded guilty to mail fraud in federal court for
his theft of the $20,080 from the Bankruptcy Court registry. He
was sentenced to a term of probation; full restitution has been
made.
The record establishes by clear and convincing evidence that
respondent committed the three ethical violations found by the
DRB. He filed fictitious documents with the court consisting of
a letter dated February 27, 1996, to Sharon Newman from Ronnie
Schwartz of Ciob & Associates with two attachments: a letter
dated January 18, 1996, from respondent to Ronnie Schwartz, and a
letter dated February 27, 1996, purporting to be an authorization
from Equileasing for Ronnie Schwartz to collect funds due from
Gaskill. Those documents were sent to induce court staff to
transmit to respondent funds to which he was not entitled.
Clearly, that conduct violated RPC 3.3(a)(1). That same
misconduct, coupled with renting a post office box, opening a
checking account, and forging endorsements on the two checks sent
by the court violated RPC 8.4(c). That elaborate scheme was
designed to commit a theft of the funds from the court's
registry, a clear violation of RPC 8.4(b).
Although this case does not involve a knowing
misappropriation of clients funds from an attorney's trust
account as occurred in In re Wilson,
81 N.J. 451 (1979), or theft
by an attorney from his or her partners as occurred in In re
Siegel,
133 N.J. 162 (1993), the totality of the circumstances
makes the theft here at least as egregious as those involved in
Wilson and Siegel.
Respondent became aware of the funds while acting as a
trustee in the Gaskill bankruptcy matter. He paid the money to
the registry in his role as trustee. Equipped with the
information that he gained as trustee, he took meticulous steps
to perfect his scheme to steal the money only two months after he
certified that he had completed his duties as trustee and sought
to be discharged. The circumstances make it clear that the theft
was not an impulsive act, but rather the result of premeditation.
Respondent's elaborate scheme contemplated that this would not be
a simple theft such as shoplifting, but one that required
respondent to submit false documents to a tribunal in violation
of RPC 3.3(a)(1) and to otherwise engage in a course of fraud,
deceit and misrepresentation to a tribunal in order to steal
$20,080 of court-managed funds. Thus, we reject respondent's
assertion that this case should be treated as a simple third-degree theft case.
Respondent's reliance on In re Hoerst,
135 N.J. 98 (1994),
is misplaced. There, the Salem County Prosecutor was authorized
to obtain funds from a forfeiture account to attend a convention.
After receiving the funds he converted them to his personal use.
Id. at 103-04. The present case is analogous to a hypothetical
situation in which an attorney has made a legitimate withdrawal
of money from his or her attorney-trust account and has deposited
it with the Clerk of the Superior Court pursuant to Rule 4:57-1.
If the attorney thereafter engages in conduct similar to that of
respondent in order to obtain the money from the Clerk of the
Superior Court as part of an elaborate scheme to steal the money,
disbarment would be the only appropriate disciplinary sanction.
Respondent argues in mitigation that disbarment would be the
inappropriate sanction because he was having marital
difficulties, he was diagnosed with cancer, and his father, who
resided in Pittsburgh, Pennsylvania, was very ill and died in
August 1996. Respondent does not rely on the expert reports in
an attempt to excuse his misconduct as was the case in In re
Jacob,
95 N.J. 132 (1984). He presented the reports only in
mitigation of the degree of disciplinary sanction to be imposed.
We reject respondent's mitigation claims for the same
reasons stated by the DRB:
[T]he marital difficulties that respondent
mentioned consisted of an extra-marital
affair that eventually led him to leave his
wife for his paramour, Betsy. Respondent
told Dr. Cooke that at least part of the
misappropriated funds were used to pay credit
card bills incurred by purchasing gifts for
Betsy and traveling and dining with her. The
record reflects that respondent was
contemplating using the funds to “fix up” his
paramour's home and permits the conclusion
that the reason he did not borrow funds
against his life insurance policy was that
his wife would have been made aware of the
loan. Thus, the claimed mitigating factor of
marital difficulties hardly presents a
sympathetic picture.
Similarly, while there is no reason to doubt
that respondent's father suffered from poor
health and that such a debilitating illness
can take its toll, the record shows that
respondent's father passed away in August
1996, six months after respondent wrote the
letter to the court requesting payment of the
funds. Thus, although a potentially
mitigating factor, respondent's father's
condition cannot be used as a defense to
respondent's misconduct.
Finally, although in May 1996 respondent was
diagnosed with cancer of the jaw and
underwent several surgeries related to this
illness, the disease was, in fact, diagnosed
several months after his theft of the funds.
As respondent candidly admitted, his
physician could not say with any degree of
certainty that the cancer contributed in any
way to respondent's misconduct. Indeed, Dr.
Cooke conceded that respondent's disease was
diagnosed after the theft and that “the
cancer did not have anything to do with”
respondent's misconduct.
Two expert reports alluded to diminished capacity on respondent's part at the time of the theft. Dr. Cooke observed that respondent had engaged in the scheme out of a sense of guilt and that he intended to be caught. Dr. Cooke noted that “the fact that he put this scheme into action one to two days prior to leaving his wife is consistent with an individual who, out of guilt, had an unconscious need to punish himself and committed an act in such a way that would ensure that.” However, the record suggests a different scenario. The sole flaw in respondent's otherwise clever plan was to have the checking account statements sent to his law office. If not for respondent's
unanticipated illness and resulting
unforeseen absence from the office, chances
are his law partners would never have
discovered the misconduct and respondent's
scheme would not have been discovered. Thus,
contrary to Dr. Cooke's report, respondent's
actions do not appear consistent with those
of a person feeling overwhelmed by guilt and
desirous of being caught, but instead of a
person overcome with greed who wanted to
maintain a lifestyle beyond his means.
The record clearly and convincingly establishes that
respondent poisoned the well of justice in order to execute his
well planned theft. In re Verdiramo,
96 N.J. 183, 186 (1984).
His conduct demonstrates his reckless and flagrant disregard of
the rules of professional conduct and “the honor and integrity
demanded of a member of the bar.” In re Pennica,
36 N.J. 401,
423 (1962). Respondent chose to engage in serious breaches of
the rules of professional responsibility to prevent his wife from
becoming aware of his “double life.” Because of the egregious
nature of his misconduct, respondent's ethical deficiencies are
intractable and irremediable. Even assuming that “it is unlikely
that [respondent] will repeat the misconduct, certain acts by
attorneys so impugn the integrity of the legal system that
disbarment is the only appropriate means to restore public
confidence in it.” In re Hughes,
90 N.J. 32, 36-37 (1982).
Here, respondent's misconduct so impugned the integrity of the
legal system that disbarment is required.
We, therefore, disbar respondent. Respondent shall
reimburse the Disciplinary Oversight Committee for appropriate
administrative costs.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in this PER CURIAM opinion.
NO. D-67 SEPTEMBER TERM 1996
Application for
Disposition Disbar
Decided November 21, 1997
Order returnable
Opinion by PER CURIAM
Footnote: 1 The checks themselves were sent to respondent at the Audubon post office box; the checking account statements were sent to respondent's law office.