(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 March 1, 1999 -- Decided July 30, 1999
PER CURIAM
This is an attorney disciplinary case.
Anthony J. Cavuto (“respondent”) was admitted to practice in 1966. He represented Curtis Bayne in a personal
injury action arising out of a motorcycle accident. Ultimately, the matter was settled for $36,000. On May 9, 1986, the
settlement proceeds were deposited into respondent's trust account. Under the terms of the settlement, after certain
deductions, Bayne was to receive $10,022.14. Respondent's fee was $12,000. In addition, from the proceeds, respondent
was to pay Bayne's health care providers, whose bills totaled $12,727.86.
Respondent issued Bayne's portion of the settlement to him on May 17, 1986. However, respondent's records
showed that almost immediately after depositing Bayne's settlement funds, he wrote numerous checks to himself totaling
$26,259. Thus, within a short period of time, respondent invaded the funds that were escrowed for the payment of his
client's medical expenses. By July 31, 1986, only $1,136.21 remained in respondent's trust account instead of the
$12,727.87 that should have been available to pay Bayne's medical bills. Respondent did not pay any of those medical
bills.
Respondent's failure to pay the medical bills and his use of the escrowed funds was discovered over five years
after the settlement, when Bayne sought treatment from Dr. Elizabeth Post. Dr. Post refused to treat Bayne because she
had not been compensated for treatment she rendered Bayne relative to his 1986 accident. Bayne thereafter questioned
respondent and discovered that his medical bills had not been paid. He therefore filed an ethics complaint.
Thereafter, the Office of Attorney Ethics (“OAE”) conducted an audit of respondent's books and records. The
audit revealed that respondent had very few trust account matters and that he did not hold large sums of money in that
account. It further revealed that respondent did not keep the financial records required by the recordkeeping rule pertaining
to attorney accounts and that he did not reconcile his trust account. Rather, he kept track of his trust account only by
maintaining a running balance on the check stubs. According to an accounting expert produced by respondent, the
accuracy of the entries in the checkbook could not be established because there were no bank statements or canceled
checks with which to compare them.
To explain his failure to pay Bayne's medical bills, respondent maintained that the file had been destroyed
inadvertently. When he reviewed a copy of the settlement statement provided by Bayne, he was not able to recall whether
he had paid the outstanding medical bills. However, he never denied that they were not paid. Although he did not
immediately have the funds to pay the outstanding medical expenses, respondent told Bayne that he would be able to pay
those bills on resolution of a workers' compensation matter he was handling for him. Bayne agreed to that arrangement.
Respondent subsequently paid the outstanding medical bills in installments over several years.
In further defense, respondent maintained that when the Bayne matter was settled in 1986, he suffered from
diabetes, hypertension, depression, fatigue, forgetfulness, memory loss, and an inability to concentrate for longer than an
hour or two. He had not sought treatment for several years following the death of his doctor in 1984, allowing his diabetes
to remain uncontrolled.
The OAE filed a formal complaint against respondent, charging him with knowing misappropriation of escrow
funds, among other things. Following a hearing, the District IIIB Ethics Committee (“DEC”) found respondent guilty of
knowing misappropriation. Following a de novo review, a five-member majority of the Disciplinary Review Board
(“DRB” or “Board”) also found respondent guilty of knowing misappropriation, rejecting his claims that he simply forgot
to pay the outstanding medical bills and stressing that respondent disbursed the funds to himself shortly after depositing the
funds into his account. The DRB concluded that once respondent's trust account balance fell below $12,727.86 (the
amount needed to satisfy the outstanding medical bills), he knew that he would be invading client funds. The Board
recommended that respondent be disbarred.
Four members of the Board dissented, concluding that because Bayne had agreed that respondent could pay the
medical bills upon resolution of the workers' compensation matter, there could not have been a knowing misappropriation.
The matter was before the Court pursuant to R. 1:20-16(a).
HELD: Cavuto's use of the funds escrowed for the payment of his client's outstanding medical expenses constituted
knowing misappropriation of client funds for which he is disbarred.
1. Respondent either knew or had reason to know that he was invading client funds when he immediately started to issue
checks to himself and failed to retain the required amount to pay his client's medical bills. (pp. 11-12)
2. The subsequent arrangement between Bayne and respondent for the payment of the medical bills long after the
diversion had already occurred does not establish that there had been no knowing misappropriation of client's funds or that
such a diversion had implicitly been authorized or later waived by Bayne. (p. 12)
3. Respondent's conduct in actively and regularly drawing numerous checks from his trust account in discrete and specific
amounts for his own use bespeaks a level of competence and awareness concerning his personal or business affairs that is
inconsistent with a loss of competency that would overcome knowing misappropriation. (p. 13)
4. The absence of evil motives, the lack of intent to permanently keep the moneys, the good use to which the funds may be
put, or the lawyer's prior unblemished character will not excuse misappropriation that was knowing and volitional. (pp.
13-15)
JUSTICE O'HERN filed a separate dissenting opinion. Justice O'Hern found that the lack of bank records
dating back thirteen years to the dates of respondent's withdrawals of the funds in question makes it impossible to
determine whether client funds were actually invaded. In essence, Justice O'Hern found that the record did not clearly and
convincingly establish that respondent had knowingly invaded client funds, and therefore would have imposed a
suspension.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in this PER CURIAM opinion. JUSTICE O'HERN filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
D-
122 September Term 1998
IN THE MATTER OF
ANTHONY J. CAVUTO,
An Attorney at Law.
Argued March 1, 1999 -- Decided July 30, 1999
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.
Dominic J. Aprile argued the cause for
respondent (Bathgate, Wegener & Wolf,
attorneys).
PER CURIAM.
This is an attorney-disciplinary case. The Office of Attorney
Ethics (OAE) filed a complaint against respondent, Anthony J. Cavuto,
charging him with the knowing misappropriation of client funds, in
violation of RPC 1.15(a); failure to safeguard client funds, in
violation of RPC 1.15(a); conduct involving dishonesty, fraud, deceit
or misrepresentation, in violation of RPC 8.4(c); failure to maintain
proper records, in violation of RPC 1.15(a) and R. 1:21-6(b); and
commingling personal and trust funds, in violation of RPC 1.15(a).
The matter was presented to the District IIIB Ethics Committee (DEC),
which recommended that discipline be imposed.
The matter is before this Court based on the decision of the
Disciplinary Review Board (DRB) determining that respondent was
guilty of unethical conduct and recommending that the respondent be
disbarred.
We determine the facts based upon an independent and de novo review of the record. R. 1:20-16.
Respondent was admitted to the New Jersey bar in 1966. Respondent represented Curtis Bayne in a personal injury action arising out of a motorcycle accident. The matter was settled for $36,000 and the settlement proceeds deposited in respondent's trust account on May 9, 1986. Under the terms of the settlement, after certain deductions, Bayne was to receive $10,022.14; respondent's fee was $12,000. The settlement provided that respondent pay Bayne's health care providers, whose medical bills totalled $12,727.86.
Respondent issued two checks totalling $10,022 to Bayne on May 17, 1986. Respondent's records showed that after depositing the Bayne settlement funds, he wrote numerous checks to himself. The total amount of those checks was $26,259, viz:
Date Amount Date Amount
5/09/86 300 6/10/86 1000 6/10/86 1000 6/12/86 500 5/14/86 7450 6/24/86 2000
5/21/86 1000 6/26/86 500
5/27/86 1000 7/09/86 500
5/29/86 800 7/09/86 500
6/01/86 559 7/11/86 1000
6/02/86 1000 7/15/86 600
6/03/86 1200 7/21/86 500
6/06/86 3000 7/24/86 400
6/06/86 2000 7/31/86 200
Thus, within a short time of distributing the settlement funds
to his client, respondent invaded the funds that were escrowed for
payment of medical expenses. By July 31, 1986, only $1136.21
remained in respondent's trust account instead of the $12,727.87 that
should have been available to pay Bayne's medical bills. Respondent
did not pay any of those medical bills.
This situation came to light over five years after the
settlement, when Bayne sought treatment from Dr. Elizabeth Post. Dr.
Post refused to see Bayne because she still had not been compensated
for the medical expenses incurred pursuant to Bayne's 1986 accident.
When Bayne thereafter questioned respondent about whether his medical
bills had been paid, he discovered that they had not. Accordingly,
Bayne brought an ethics complaint.
Following the filing of Bayne's complaint, the OAE conducted an
audit of respondent's books and records that revealed that respondent
had very few trust account matters and did not hold large sums of
money in his trust account. The audit further revealed that
respondent did not maintain a trust account receipts journal, a trust
account disbursements journal, or client ledger cards, and that he
did not reconcile his trust account. The only records that
respondent produced were his trust account checks and check stubs.
He acknowledged that he kept track of his trust account only by
maintaining a running balance on the check stubs. Respondent
explained that he kept fees in his trust account, not as “overdraft
protection,” but to keep those funds from his wife, who assisted him
with the office bookkeeping and had authority to sign his business
account checks.
Respondent offered evidence to explain his failure to pay the
medical bills. Respondent stated that when he sought to review the
file after Bayne complained about Dr. Post's unpaid bill, he learned
that his office staff had mistakenly "purged" it in 1988 or 1989.
Respondent believed that approximately one hundred to one hundred and
fifty files, including the Bayne file, were inadvertently destroyed
by respondent's wife, who mistakenly assumed that the files had been
examined and reviewed by respondent and left for destruction.
Respondent explained further that because he did not have the
file, he requested that Bayne bring his records to respondent's
office. When respondent reviewed the May 2, 1986 settlement
statement, he could not recall whether he had paid the medical
expenses. Respondent, however, never denied that the bills were not
paid. He told Bayne that he did not have sufficient funds on hand to
make immediate payment. Respondent suggested that he could arrange
for the payment of the bills from the proceeds of a workers'
compensation matter in which he was representing Bayne; respondent
expected an imminent settlement in that case. Bayne agreed to await
the payment of his medical bills until that case was settled.
The workers' compensation case was not quickly settled.
Respondent wrote to several of Bayne's creditors and arranged to pay
the medical bills in installments. The record discloses this history
of payments. On October 22, 1992, respondent paid Dr. Post $1200
toward the $2400 then due. Although respondent informed Dr. Post
that he expected to pay the balance within three weeks, he did not
pay the bill in full until March 16, 1994. It also appears that
before the final payment to Dr. Post, an attorney filed a complaint
against Bayne on behalf of Dr. Post for unpaid medical expenses of
$1200. The attorney dismissed the complaint in September 1993, when
he learned that in 1987, Dr. Robert Cohen, an associate of Dr. Post,
had already obtained a judgment against respondent for the same bill.
The attorney testified that, on April 3, 1987, he had agreed on
behalf of Dr. Cohen to accept $2400 from respondent within ten days,
in full settlement of the balance due of $2722.80, including fees and
costs.
Respondent also paid Bayne's other remaining medical bills after
the OAE audit was completed. On December 10, 1992, respondent
guaranteed payment of $2434 to the Neurological Center. The record
shows that respondent paid $300 on December 10, 1992, $1000 on July
30, 1993 and $600 as a final installment on March 11, 1994. On March
16, 1994 respondent paid the following remaining medical bills:
Dr. Conrad Brahin $54.00
Dr. Martin Topiel 125.00
Zurbrugg Memorial Hospital 5740.41
Rancocas Orthopedic Associates 100.00
Dr. Szathmary 360.00
Respondent testified that he borrowed money from his wife to pay
Bayne's creditors.
By way of defense, respondent claims he simply forgot to pay
Bayne's medical bills. He offered several reasons for his failure to
act. Before respondent represented Bayne, in every other personal
injury action he had handled, the client's personal injury protection
(PIP) carrier had paid the medical bills directly. Hence, respondent
explained, after he disbursed the settlement funds to Bayne, in his
own mind his work on the case was over and he forgot to pay the
remaining medical expenses.
Respondent also presented evidence that, when the Bayne matter
settled in 1986, he suffered from diabetes, hypertension, depression,
fatigue, forgetfulness, memory loss and an inability to concentrate
for longer than an hour or two. Respondent related that following
the death of his physician in 1984, he did not seek treatment from
another doctor, allowing his diabetes to remain uncontrolled.
Mrs. Cavuto corroborated respondent's testimony about his health
problems. She testified that, although respondent needed insulin as
early as 1986, he refused to take it until 1990. Mrs. Cavuto stated
that after 1986 respondent's health had deteriorated, he slept
excessively, did not work as hard as in the past, was depressed and
suffered some memory loss.
Two physicians testified on respondent's behalf. Peter A.
Lodewick, M.D., a diabetes specialist, declared that he had examined
respondent in 1990 and concluded that respondent's diabetes was not
adequately controlled. Dr. Lodewick remarked that respondent was
overweight and that, as a result of consuming excessive
carbohydrates, he was sluggish, sleepy and irritable. According to
Dr. Lodewick, high blood sugar, high blood cholesterol and high blood
triglycerides result from overconsumption of carbohydrates, and can
affect a patient's mood and thinking processes. Dr. Lodewick opined
that inadequately controlled diabetes may cause depression,
irritability, fatigue, sleepiness and forgetfulness.
Herbert E. Cohen, M.D., a specialist in cardiology and internal
medicine, testified not as an expert, but as a fact witness. He
related that he saw respondent in his medical office on nine
instances from December 20, 1984 through December 18, 1987. Dr.
Cohen observed that respondent had a poor memory, noting that his
forgetfulness often resulted in missed appointments. He recalled
that respondent telephoned his office to ask about blood test results
and about prescribed medications shortly after the doctor's office
had given him that information.
Respondent denied that he paid Bayne's medical bills in response
to the OAE audit letter dated March 7, 1994. He pointed out that the
letter did not even mention Bayne. Respondent explained that he had
paid the bills because Bayne recently had begun to telephone him at
his office every day and at home at inconvenient times, such as 1:00
a.m. According to respondent, Bayne was taking anti-depressant
medications and his behavior had become erratic. Mrs. Cavuto
confirmed that Bayne frequently telephoned their home and that,
during one conversation, he had been abusive toward her. As a
result, respondent borrowed the necessary funds from his wife to pay
Bayne's bills. About one month later, respondent arranged for
another attorney to assume responsibility for Bayne's workers'
compensation matter.
Charles Lawson, a certified public accountant, was called as an
accounting expert on respondent's behalf. He testified that he had
reviewed the reconstruction of respondent's trust account, which was
prepared by the OAE based on respondent's trust account checkbook
entries. According to Lawson, no conclusion could be drawn as to the
accuracy of that reconstruction because there was no independent
documentation or verification to support the checkbook entries. For
example, there were no bank statements or canceled checks to compare
to the entries in the checkbook to establish their accuracy.
The DRB found that respondent knowingly misappropriated funds in 1986. The DRB recapitulated the facts surrounding the misappropriation:
On May 9, 1986 respondent deposited into his trust account settlement funds on behalf of his client, Bayne. After disbursing Bayne's share of the settlement and his own fee, respondent was obligated to pay Bayne's medical expenses. However, respondent failed to immediately pay the medical expenses or even to keep the funds intact in his trust account. Instead, respondent immediately began disbursing the funds to himself. Indeed, within two weeks of distributing the settlement funds to his client, respondent invaded the funds that were escrowed for payment of the medical expenses and within three months all of the money had been spent.
The DRB noted that the DEC did not find clear and convincing evidence of a knowing misappropriation in 1986; the DEC was not convinced that the OAE had rebutted respondent's testimony that he could not recall why, in 1986, he had not paid the bills and that the failure to pay those bills was an oversight resulting from the passage of time, sloppy bookkeeping, and poor health.
The DRB did not credit respondent's explanation that "he simply forgot to pay the creditors." It stressed that respondent disbursed the funds to himself over a very short period of time; he issued twenty-two checks totaling $26,259 within a three-month period. The DRB concluded that "[r]espondent knew that, once the trust account balance fell below $12,727.86, he would be invading client funds," and that "because respondent had very few trust account matters and maintained a running balance in his checkbook, he had to be aware that he was spending his client's funds."
We note that four members of the DRB dissented from the recommendation that respondent be disbarred for knowing misappropriation. The dissent concluded that because Bayne had agreed that respondent could pay the medical bills upon the resolution of the workers' compensation matter, there could not have been a knowing misappropriation of client funds.
We determine based on clear and convincing evidence that respondent engaged in the knowing misappropriation of client funds. Respondent either knew or had reason to know that he was invading client funds when he immediately started to issue checks to himself and failed to retain the required amount to pay his client's medical bills. The inference of knowledge is clear and inescapable. Further, in these circumstances, that inference is not dispelled by the utterly speculative and conjectural theory that during the time respondent was regularly withdrawing moneys from his trust account for his own purposes, he was simultaneously depositing trust moneys from other sources that offset those withdrawals. We are satisfied that the arrangement for the payment of the medical bills between Bayne and respondent long after the diversion had already occurred does not tend to establish that there had been no knowing misappropriation of client's funds or that such a diversion had implicitly been authorized or later waived by Bayne.
We are also unpersuaded that respondent had a lapse of memory when he withdrew the trust moneys, particularly because the withdrawals began within days after entering a settlement that expressly and specifically provided that respondent must pay outstanding medical bills and listed the providers whose bills were to be paid. It is not reasonable to conclude that respondent contemporaneously forgot that the money was to be used to pay medical bills on behalf of his client or forgot about the existence of those bills, as he regularly and in quick succession -- almost on a daily basis -- drew checks on the that fund over a period of two months. Respondent's excuse that he was confused because in other cases such payments were covered by PIP insurance and paid by insurers is totally implausible in view of the fact that his disbursements to himself from those trust moneys occurred immediately following the settlement of the Bayne case and contrary to his express agreement to pay Bayne's medical bills himself.
We are also unconvinced that respondent's health condition - specifically, his forgetfulness -- serves to negate or neutralize his knowing misappropriation. Respondent's conduct in actively and regularly drawing numerous checks from his trust account in discrete and specific amounts for various purposes and uses of his own, bespeaks a level of competence and awareness concerning his personal or business affairs that is totally inconsistent with his assertion that he did not recall, or could not at the time of those withdrawals have remembered that there remained unpaid medical bills. The evidence falls short of the loss of competence sufficient to overcome knowing misappropriation. See In re Greenberg, 155 N.J. 138 (1998); In re Jacob, 95 N.J. 132 (1984).
Respondent is subject to disbarment. In re Wilson, 81 N.J. 451 (1979). The DRB correctly and fairly related the authority that supports this discipline. It pointed out that In re Noonan, 102 N.J. 157 (1986), defines the requirements for a finding of knowing misappropriation:
The misappropriation that will trigger automatic disbarment under In re Wilson, 81 N.J. 451 (1979), disbarment that is “almost invariable,” id. at 453, consists simply of a lawyer taking a client's money entrusted to him, knowing that it is the client's money and knowing that the client has not authorized the taking. It makes no difference whether the money was used for a good purpose or a bad purpose, for the benefit of the lawyer or for the benefit of others, or whether the lawyer intended to return the money when he took it, or whether in fact he ultimately did reimburse the client; nor does it matter that the pressures on the lawyer to take the money were great or minimal. The essence of Wilson is that the relative moral quality of the act, measured by these many circumstances that may surround both it and the attorney's state of mind, is irrelevant: it is the mere act of taking your client's money knowing that you have no authority to do so that requires disbarment. . . . The presence of “good character and fitness,” the absence of “dishonesty, venality, or immorality” _ all are irrelevant. While this Court indicated that disbarment for knowing misappropriation shall be “almost invariable,” the fact is that since Wilson, it has been invariable. [Footnote omitted]
Thus, under Noonan, as the DRB further explained, dishonesty or an
intent to steal or defraud, or dishonesty, is not required. The
relevant facts are that the lawyer knows that the funds are not his
or hers, and knows that the client has not consented to the taking.
The absence of evil motives, the lack of intent to permanently keep
the moneys, the good use to which the funds may be put, or the
lawyer's prior unblemished character will not excuse misappropriation
that was knowing and volitional. Ibid. See also In re Pomerantz,
155 N.J. 122 (1998); In re Greenberg, supra,
155 N.J. 138. The DRB
reiterated this Court's observation in In re Roth,
140 N.J. 430, 445
(1995):
The line between knowing misappropriation and
negligent misappropriation is a thin one.
“Proving a state of mind _ here, knowledge _
poses difficulties in the absence of an outright
admission.” In re Johnson,
105 N.J. 249, 258,
520 A.2d 3 (1987). However, this Court has noted
that “an inculpatory statement is not an
indispensable ingredient of proof of knowledge,
and that circumstantial evidence can add up to
the conclusion that a lawyer 'knew' or 'had to
know' that clients' funds were being invaded.”
Ibid. In this case, that circumstantial evidence
includes repeated invasions of client funds that
were required to be held inviolate. The
testimony adduced convincingly suggests that
respondent “knew,” or “had to know” that he was
invading client funds.
We determine that respondent is guilty of knowing
misappropriation of client's funds in violation of the Rules of
Professional Conduct. We determine further that respondent is
subject to public discipline and should be disbarred. Respondent
shall reimburse the Disciplinary Oversight Committee for appropriate
administrative costs.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI,
STEIN and COLEMAN join in this opinion. JUSTICE O'HERN filed a
separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
D-
122 September Term 1998
IN THE MATTER OF
ANTHONY J. CAVUTO,
An Attorney at Law.
O'HERN, J., dissenting.
Thirteen years after the fact, the Court disbars an attorney
essentially because he cannot reconstruct his trust accounts for the
year 1986. That result is unfair, unjust, and conflicts with our
precedent.
The Decision Memorandum of the District III B Ethics Committee
(DEC) best summarizes the facts and the law.
The OAE has produced clear evidence that
the portion of the Bayne settlement funds
which were deposited in Respondent's trust
account and retained by Respondent for
disbursement to medical providers was neither
disbursed to those providers nor retained in
Respondent's trust account. The trust
account balance was $1,130.71 on July 31,
1986, when it should have been at least
$12,727.86 to cover the medical providers'
bills. At that same time, as best the
records can be reconstructed, checks were
being written by Respondent to Respondent as
well as others (who were not the medical
providers). Respondent has testified that he
has no recollection of why he wrote checks to
himself and did not pay the medical
providers. He excuses this oversight by
reference to the passage of time, sloppy
bookkeeping and ill health.
At least in part due to the passage of
time, the OAE has no contrary evidence to
present regarding Respondent's state of mind
in 1986. It is clear that a misappropriation
occurred in 1986. What is not clear is
whether this was a knowing or a negligent
misappropriation. Evidence of Respondent's
state of mind, that he knew that he
misappropriated his client's funds rather
than negligently invaded the trust, must be
clear and convincing. In re Konopka,
126 N.J. 225, 233 (1991). Therefore, this Panel
is not able to conclude that there was a
knowing misappropriation of client funds in
1986.
The Report and Recommendation of the DRB, a 5-4 decision in
which both the Chair and Vice Chair voted against disbarment, is
disturbing and has a detached feeling to it. The DRB refers to
itself in the third person, not in the first. Rather than to say,
“we find by clear and convincing evidence that respondent knowingly
misappropriated client funds,” the DRB's Report states, as though the
DRB were referring to some other body, that “the Board determined
that, because respondent had very few trust account matters and
maintained a running balance in his checkbook, he had to be aware
that he was spending his client's funds.”
Also, the main premise of the DRB Report seems flawed to me.
The Report recites that “. . . within two weeks of distributing the
settlement funds to his client, respondent invaded the [escrow] funds
. . . .” To begin with, it is simply not true that respondent had
“very few trust account matters.” In addition, the DRB infers that
the running balance on Cavuto's check stubs demonstrates that he knew
that he was invading client funds. The problem with that analysis is
that we have a series of checks but not a series of bank statements.
The record simply does not disclose whether client funds were
actually invaded. There may have been deposits in the trust account
sufficient to cover the withdrawals.
Who should bear the burden of the absence of bank records dating
back that far? The OAE says that respondent should be presumed to
have had knowledge that he was invading client funds. Presumptions
of criminal intent have long been disfavored in the law. Sandstrom
v. Montana,
442 U.S. 510,
99 S. Ct. 2450,
61 L. Ed.2d 39 (1979). It
is to be remembered that in In re Fleischer,
102 N.J. 440, 449-50
(1986), it was not bad bookkeeping that caused the attorneys in the
firm to be disbarred, but the fact that they admitted that they had
pooled their trust and business accounts in order to meet their
operating expenses. They knew that they were invading client funds.
I realize that much is expected of lawyers, but a lawyer should not
have to prove his innocence thirteen years after the fact. Absent
clear and convincing evidence of a knowing misappropriation, a
suspension is sufficient discipline.
I therefore dissent.
NO. D-122 SEPTEMBER TERM 1998
Application for
Disposition Disbarment
Decided July 30, 1999
Order returnable
Opinion by PER CURIAM