SYLLABUS
(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 May 23, 2005 – Decided July 19, 2005
PER CURIAM
Philip M. Morell was admitted to practice law in New Jersey in 1988 and in New York in 1989. On June 11, 1997, Morell was retained by Marc Fink to file a medical malpractice action. He failed to file suit and for approximately four years thereafter, misrepresented to Fink the status of his case. Morell told Fink that he filed suit, obtained a neurosurgeon and a psychiatrist as expert witnesses, discussed settlement with representatives of an insurance carrier of one of the defendants, rejected an offer of $250,000 to settle the case, and received another offer of $700,000. In March 2001, Morell told Fink he received a settlement offer of $1.1 million. Fink accepted it. Morell continued the charade by having Fink sign a release for the $1.1 million non-existent settlement. After Morell told Fink that he could purchase the car of his dreams, Fink borrowed funds from his father and purchased an expensive automobile. Morell also told the attorney representing Fink in a workers’ compensation matter that he had settled the malpractice action for $1.1 million. In July of 2001, Morell informed Fink that he had received the settlement funds and would wire the funds to Fink immediately. Several days later, Morell admitted to Fink’s father that he had fabricated the settlement and that no complaint had been filed.
After Fink filed a grievance against Morell, in July of 2003, the ethics
committee mailed a copy of the complaint by certified and regular mail to
Morell’s last known address. Morell submitted an unverified answer. Because the answer was
not verified, it was returned with a request for a verified answer. Despite
that request, Morell failed to comply. The failure to answer was deemed an
admission to the allegations in the complaint. Morell was charged with violating RPC
1.1(a) (gross negligence), RPC 1.3 (lack of diligence), RPC 1.4(a) (failure to communicate
with client), and RPC 4.1(a)(1) (false statement of material fact to third person).
On September 6, 2004, the Disciplinary Review Board published a notice advising Morell
of its scheduled review of the matter and of the deadline for filing
a motion to vacate the default. Again, Morell failed to respond. In October
of 2004, the Board found Morell guilty of the charges. In addition, the
Board found that although Morell was not charged with a violation of RPC
8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), the complaint contained sufficient facts
to establish violations of that rule. The Board recommended the imposition of a
two-year suspension to run consecutive to the one-year suspension Morell was already serving
for other disciplinary infractions.
A review of the record revealed that notice of the Board’s decision was
sent to Morell’s office address in Tenafly at a time when he was
under suspension. A staff attorney of the Supreme Court Clerk’s Office telephoned Morell
and informed him of the Board’s decision. In December of 2004, the staff
attorney also sent a letter to Morell informing him that he could file
a petition for review urging the imposition of lesser discipline and/or even vacation
of default and remand for a plenary hearing. The letter also instructed Morell
to consider In re Kantor in deciding whether to file a response to
the Board’s decision. Morell did nothing in response to this notice.
In April of 2005, this Court ordered Morell to show cause why he
should not be disbarred or otherwise disciplined, and to file a response. Again,
Morell did nothing by way of a response.
HELD: Under these circumstances, Morell’s conduct, involving dishonesty, fraud, and deceit, reflects his
unfitness to practice law; the Court orders his disbarment.
Our independent review of the record satisfies us by clear and convincing evidence
that Morell has engaged in unethical conduct. The elaborate scheme of deception, beginning
with Morell’s false statement to his client that a complaint had been filed
on his behalf through the misrepresentation that the case had been settled, conclusively
establishes Morell’s professional misconduct. In addition, we consider whether Morell appeared and participated
in the disciplinary proceeding. (In re Kantor concludes that an attorney who declines
to appear before this Court to explain his unprofessional conduct and who offers
no evidence in mitigation of punishment for disciplinary infractions as serious as those
in this case openly displays his unfitness to continue to practice law.) (pp.
6-7)
The Board believes that a two-year suspension, not disbarment, is the appropriate sanction.
We disagree. The present case is a clear case of dishonesty, fraud, and
deceit. The undisputed evidence demonstrates that Morell continually fabricated a story to his
client to make it appear that his client’s interests were protected and that
his client would receive a substantial recovery. Morell’s conduct displayed a total disregard
for an attorney’s responsibility to serve his clients and the administration of justice
honorably and responsibly. This is not a case of a new attorney who
somehow lost sight of his or her ethical responsibilities. Nor is this Morell’s
first brush with the disciplinary system. Just as important, Morell presented no evidence
in mitigation of his dereliction or in support of his fitness to practice
law. In fact, he presented no defense at all. Under these circumstances, Morell’s
conduct, involving dishonesty, fraud, and deceit, reflects his unfitness to practice law. Disbarment
is the appropriate discipline. (pp. 7-10)
So Ordered.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join
in this opinion.
SUPREME COURT OF NEW JERSEY
D-
23 September Term 2004
IN THE MATTER OF
PHILIP M. MORELL,
An Attorney at Law
Argued May 23, 2005 – Decided July 19, 2005
On an Order to show cause why respondent should not be disbarred or
otherwise disciplined.
Lee A. Gronikowski, Deputy Ethics Counsel, argued the cause on behalf of the
Office of Attorney Ethics.
Respondent did not appear.
PER CURIAM
Respondent Philip M. Morell was admitted to practice law in New Jersey in 1988, and in New York in 1989. Respondent has twice before been the subject of ethical discipline. In May 1999, as part of an agreement in lieu of discipline, respondent admitted a violation of New Jersey Rule of Professional Conduct (RPC) 3.2 (failure to expedite litigation) and RPC 3.4 (fairness to opposing party and counsel) for failure to diligently prosecute a claim and to comply with his adversary’s discovery request. Respondent attended and completed a diversion program in November 1999.
On November 20, 2001, the Grievance Committee for the Ninth Judicial District filed a petition against respondent in New York. The nine-count petition charged respondent with a series of violations of New York Disciplinary Rule 1-102(a)(4). See footnote 1 The case was referred to a Special Referee, who issued a report concluding that the factual allegations in the nine-count complaint had been established by respondent’s admission or by other evidence presented. In imposing a one-year suspension on respondent, effective July 9, 2003, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, noted a number of mitigating factors, including that respondent assumed responsibility for making one of the victims whole and submitted an affidavit stating he had “corrected the problems associated with his misconduct by the addition of two partners and the use of new office techniques.” Upon respondent’s application, the effective date of his New York suspension was changed to August 8, 2003.
The Office of Attorney Ethics filed a motion for reciprocal discipline in New Jersey. We granted that motion and suspended respondent for one year, effective August 8, 2003, for his repeated misrepresentations to two clients. In re Morell, 180 N.J. 153 (2004).
On June 11, 1997, respondent was retained by grievant Marc Fink to file a medical malpractice action for damages arising out of surgeries to repair herniated discs in his lower back. Respondent failed to file suit. For approximately four years thereafter, respondent misrepresented to Fink the status of his case. In particular, respondent told Fink that he filed suit, obtained a neurosurgeon and a psychiatrist as expert witnesses, discussed settlement with representatives of an insurance carrier of one of the defendants, rejected an offer of $250,000 to settle the case, and received another offer of $700,000. In March 2001, respondent told Fink he received a settlement offer of $1.1 million. Fink accepted it. Unfortunately, this was all a subterfuge because there was no such settlement. Respondent continued the charade by having Fink sign a release for the $1.1 million non-existent settlement. Respondent told Fink that he could now “purchase the car of his dreams.” Relying on that information, Fink borrowed funds from his father and purchased an expensive automobile. Respondent also told the attorney representing Fink in a workers’ compensation matter that he had settled the malpractice action for $1.1 million.
In early July 2001, respondent informed Fink that he had received the settlement funds and would wire the funds to Fink immediately. Respondent then claimed that due to a bank problem, the funds would be wired to Fink on July 4, 2001, a bank holiday. Several days later, respondent admitted to Fink’s father that he had fabricated the settlement and that no complaint had been filed.
After Fink filed a grievance against respondent, on July 22, 2003, the District IIA Ethics Committee mailed a copy of the complaint by certified and regular mail to respondent’s last known address in Tenafly, New Jersey. Respondent submitted an unverified answer dated August 22, 2003, accepting responsibility and asking to be heard on the penalty. Because the answer was not verified, it was returned to respondent with a request for a verified answer. Despite that request, respondent failed to comply. The failure to answer was deemed an admission to the allegations in the complaint. R. 1:20-4(f)(1). The matter was then certified to the Disciplinary Review Board (Board). R. 1:20-4(f)(2).
For his conduct with Fink, respondent was charged with violating RPC 1.1(a) (gross negligence), RPC 1.3 (lack of diligence), RPC 1.4(a) (failure to communicate with client), and RPC 4.1(a)(1) (false statement of material fact to third person). On September 6, 2004, the Board published a notice in the New Jersey Law Journal and the New Jersey Lawyer, advising respondent of the scheduled review of the matter on September 23, 2004, and of the deadline for filing a motion to vacate the default. Again, respondent failed to respond.
On October 26, 2004, the Board found that respondent was guilty of violating RPC 1.1(a), RPC 1.3, RPC 1.4(a), and RPC 4.1(a)(1). In addition, the Board found that although respondent was not charged with a violation of RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), “the complaint contained sufficient facts to establish violations of that rule.” The Board recommended the imposition of a two-year suspension to run consecutive to the one-year suspension respondent was serving. Further, prior to reinstatement, respondent had to submit proof of fitness to practice law, as attested by a mental health professional approved by the Office of Attorney Ethics.
In November 2004, a review of the record in this matter revealed that notice of the Board’s decision was sent to respondent at his office address in Tenafly at a time when he was under suspension. Moreover, the certified mail of the Board’s decision was returned with a notation “moved, left no address.” A staff attorney of the Supreme Court Clerk’s Office telephoned respondent and informed him of the Board’s decision. On December 10, 2004, the staff attorney sent a letter to respondent with a copy of the record, informing him that he “may file a petition for review pursuant to R[ule] 1:20-16(b) urging the imposition of lesser discipline and/or even vacation of default and remand for a plenary hearing . . . .” Tellingly, the letter instructed respondent to consider the case In re Kantor, 180 N.J. 226 (2004), in deciding whether to file a response to the Board’s decision. Respondent did nothing in response to this notice.
On April 7, 2005, we ordered respondent to show cause why he should not be disbarred or otherwise disciplined, and to file a response by April 29, 2005. Again, respondent did nothing by way of a response.
Our independent review of the record satisfies us by clear and convincing evidence that respondent has engaged in unethical conduct. The elaborate scheme of deception, beginning with respondent’s false statement to the grievant that a complaint had been filed on his behalf through the misrepresentation that the case had been settled, conclusively establishes respondent’s professional misconduct.
We set forth the principles applicable to the measure of discipline in In re Infinito, 94 N.J. 50 (1983). In that case, we stated:
Our goal in these hearings is to protect the interests of the public and the bar while giving due consideration to the interests of the individual involved. Similar to a sentencing judge in a criminal matter, we take into consideration many factors in determining the proper discipline to be imposed. We consider the nature and severity of the [unethical conduct], and whether [it] is related to the practice of law. We consider evidence which does not dispute the [unethical conduct] but which shows mitigating circumstances [relevant to] the issue of whether the nature of the conviction merits discipline and, if so, the extent thereof. Similarly, we consider evidence of an attorney’s good reputation, his prior trustworthy professional conduct, and his general good character.
[Id. at 57 (internal citations and quotations omitted).]
In addition, we consider whether the respondent appeared and participated in the disciplinary
proceeding. Kantor, supra, 180 N.J. at 233 (concluding “[a]n attorney who declines to
appear before this Court to explain his unprofessional conduct and who offers no
evidence in mitigation of punishment for disciplinary infractions as serious as those in
this case openly displays his unfitness to continue to practice law”).
In the present case, the Board believed that a two-year suspension, not disbarment,
was the appropriate sanction. We disagree. “[A]ttorney misconduct that undermines the integrity of
the administration of justice” may warrant disbarment. In re Kornreich,
149 N.J. 346,
365 (1997) (citations omitted). Moreover, inasmuch as respondent failed to cooperate, failed to
respond to the request for a verified answer, and failed to offer evidence
in mitigation, disbarment is the appropriate sanction.
Respondent’s conduct is similar to that presented in Kornreich. In that case, the
respondent was charged with motor-vehicular offenses arising from a car accident. Id. at
348. As a result of the respondent’s false statement that her full-time babysitter
was the driver of the car at the time of the accident, the
charges were dismissed against her and filed against the babysitter. When the respondent’s
scheme was uncovered, the charges were dismissed against the babysitter. Ibid. Criminal charges
were then filed against the respondent and were later dismissed after she completed
a pretrial intervention program. Id. at 349. The respondent also was charged with
multiple ethics violations involving her dishonesty and misrepresentation. The Board found her guilty
and recommended a one-year suspension. Ibid. We disagreed with that sanction and, despite
our recognition that disbarment would generally be appropriate in such circumstances, we concluded
that the respondent’s mitigating evidence of her youth and inexperience justified our withholding
the ultimate sanction of disbarment. Id. at 370-71. Instead, we imposed a suspension
for a period of three years. Id. at 372.
In In re Edson,
108 N.J. 464, 465 (1987), the respondent was charged
with engaging in conduct involving dishonesty and fraud. Those charges arose from the
respondent’s fabrication of an extrapolation defense in a prosecution for violation of the
driving while intoxicated statute. Ibid. The majority of the Board recommended that the
respondent be suspended for three years, while a four-member minority recommended disbarment. Id.
at 471. We agreed with the minority and disbarred the respondent, noting that
“[t]here could hardly be a plainer case of dishonesty touching the administration of
justice and arising out of the practice of law.” Id. at 473.
The present case is a clear case of dishonesty, fraud, and deceit. The
undisputed evidence demonstrates that respondent continually fabricated a story to his client to
make it appear that the client’s interests were protected and that the client
would receive a substantial recovery. Respondent’s conduct displayed a total disregard for an
attorney’s responsibility to “serve [his] clients and the administration of justice honorably and
responsibly.” In re Matthews,
94 N.J. 59, 77 (1983).
This is not a case of a new attorney who somehow lost sight
of his or her ethical responsibilities. Nor is this respondent’s first brush with
the disciplinary system. Just as important, unlike Kornreich, where the respondent presented evidence
in mitigation, respondent “presented no evidence in mitigation of his dereliction or in
support of his fitness to practice law.” Kantor, supra, 180 N.J. at 232.
In fact, respondent presented no defense at all. Under these circumstances, respondent’s conduct,
involving dishonesty, fraud, and deceit, reflects his unfitness to practice law.
We order the disbarment of respondent.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join
in this opinion.
SUPREME COURT OF NEW JERSEY
IN THE MATTER OF :
O R D E R
PHILIP M. MORELL, :
AN ATTORNEY AT LAW :
(Attorney No. 035791188) :
It is ORDERED that PHILIP M. MORELL of NEW ROCHELLE, NEW YORK, who
was admitted to the bar of this State in 1988, be disbarred and
that his name be stricken from the roll of attorneys of this State,
effective immediately; and it is further
ORDERED that all funds, if any, currently existing in any New Jersey financial
institution maintained by PHILIP M. MORELL pursuant to Rule 1:21-6 be restrained from
disbursement except on application to this Court, for good cause shown, and shall
be transferred by the financial institution to the Clerk of the Superior Court,
who is directed to deposit the funds in the Superior Court Trust Fund
pending the further Order of this Court; and it is further
ORDERED that PHILIP M. MORELL comply with Rule 1:20-20 dealing with disbarred attorneys;
and it is further
ORDERED that PHILIP M. MORELL be and hereby is permanently restrained and enjoined
from practicing law; and it is further
ORDERED that PHILIP M. MORELL reimburse the Disciplinary Oversight Committee for appropriate administrative
costs.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 18th day
of July, 2005.
CLERK OF THE SUPREME COURT
/S/ Stephen W. Townsend
SUPREME COURT OF NEW JERSEY
NO. D-23 SEPTEMBER TERM 2004
APPLICATION FOR
DISPOSITION Order to Show Cause Why Respondent Should
Not be Disbarred or Otherwise Disciplined
IN THE MATTER OF
PHILIP M. MORELL,
An Attorney at Law
DECIDED July 19, 2005
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
New York Disciplinary Rule 1-102(a)(4) corresponds to New Jersey RPC 8.4(c), which
states: “It is professional misconduct for a lawyer to . . . engage
in conduct involving dishonesty, fraud, deceit or misrepresentation[.]”