In re Shelly

659 A.2d 460, 140 N.J. 501, 1995 N.J. LEXIS 265
CourtSupreme Court of New Jersey
DecidedJune 9, 1995
StatusPublished
Cited by4 cases

This text of 659 A.2d 460 (In re Shelly) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Shelly, 659 A.2d 460, 140 N.J. 501, 1995 N.J. LEXIS 265 (N.J. 1995).

Opinion

PER CURIAM.

Respondent was admitted to practice law in the State of New Jersey in 1973. He practiced as a solo practitioner in Monmouth County. Respondent has not been the subject of any previous disciplinary action.

This disciplinary proceeding arises out of a complaint filed against respondent by the Office of Attorney Ethics (OAE) alleging five counts of ethics violations relating to his representation of Concetta “Babe” Roden.

I

Counts One, Two, and Three of the formal ethics complaint charged respondent with knowing misappropriation of client trust funds with respect to (1) $40,000 taken from the proceeds of a real-estate closing, (2) a $6,000 deposit in the same real-estate matter, and (3) $1,250 of the closing proceeds that supposedly had [503]*503been held in escrow by respondent. Count Four charged a conflict of interest in violation of RPC 1.8(a) for failing to advise Ms. Roden to seek the advice of independent counsel regarding a “loan transaction” between respondent and Ms. Roden. Count Five charged respondent with recordkeeping violations contrary to Rule l:21-6(b), (c), (g), and (h), and RPC 1.15(d).

Following an evidentiary hearing, Special Master Frank J. Dupignac, Jr. found that respondent knowingly had misappropriated the $6,000 deposit, and that he knowingly had misappropriated $34,000 from the title-closing proceeds. Based on those findings, the Special Master recommended disbarment.

The Special Master further found that respondent’s borrowing of his client’s money (the $6,000 deposit and the $34,000 from the closing proceeds) without advising her to seek independent legal counsel constituted a conflict of interest in violation of RPC 1.8(a). However, he found that the evidence was insufficient to support a finding that respondent knowingly had misappropriated the $1,250 “escrow” from the title-closing proceeds. Finally, the Special Master found that although respondent had violated the record-keeping requirements of Rule 1:21-6 and RPC 1.15(d), “the proofs of a knowing misappropriation of funds as a result thereof are less than clear and convincing.”

Following a de novo review on the record, the Disciplinary Review Board (DRB) found that it could not conclude by clear- and-convincing .evidence that respondent knowingly had misappropriated the $34,000 from the closing proceeds. The DRB reasoned:

[R]espondent’s action in setting aside for himself $34,000 from the closing proceeds — albeit this time in the form of a loan — was consistent with the practice he had followed in the nine years of representing Ms. Roden; with her prior consent, her outstanding fees were paid out of monies respondent successfully recovered in her behalf in each matter. There is also respondent’s close relationship with Ms. Roden to be considered. Based on the parties’ informal and friendly relationship over the years, it is plausible that Ms. Roden agreed to lend respondent some monies, especially if the loan was to be for a short term, as in this instance.
In light of the foregoing, the board cannot conclude, to a clear and convincing standard, that respondent kept the $34,000 without Ms. Roden’s consent or, [504]*504otherwise stated, that he knowingly misappropriated those funds for his own purposes.

In contrast, a four-member majority of the DRB found that the record clearly and convincingly established that respondent knowingly had misappropriated the $6,000 deposit. The majority noted:

Even if it were true that respondent obtained the buyers’ attorney’s and Ms. Roden’s consent to the release of the deposit escrowed in his trust account, by respondent’s own admission he did not have the buyers’ attorney’s consent to use those monies for his personal purposes.

Accordingly, the majority recommended that respondent be disbarred pursuant to In re Hollendonner, 102 N.J. 21, 504 A.2d 1174 (1985), and In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979).

Three members of the DRB who believed that the evidence did not clearly and convincingly show that respondent’s use of either the $34,000 or the $6,000 was unauthorized voted to impose a six-month suspension for violations of RPC 1.8, Rule 1:21-6, and RPC 1.15(d).

Based on our independent review of the full record, we are unable to conclude by elear-and-convincing evidence that respondent knowingly misappropriated either the $6,000 deposit or the $34,000 from the closing proceeds. Accordingly, we reject the DRB majority’s recommendation that respondent be disbarred under the rule of Wilson, supra, 81 N.J. at 453, 409 A.2d 1153. We instead accept the recommendation of the minority of the DRB and order respondent suspended from the practice of law for a period of six months based on his violations of RPC 1.8, Rule 1:21-6, and RPC 1.15(d).

II

In 1983, respondent undertook to represent Ms. Roden in several legal matters, including a complex litigation entitled Roden v. Franceze (“the Franceze matter”). Most of those matters concerned the distribution of Ms. Roden’s family fortune between Ms. Roden and various family members.

[505]*505Before consulting respondent, Ms. Roden was represented by-Richard McManus, Esq. (McManus). Ms. Roden owed McManus $9,890 for his services when she first met with respondent. She did not wish to pay McManus’s bill because she was dissatisfied with his representation, and she told respondent that she wanted to file an ethics complaint against McManus. Respondent investigated the merits of her allegations, and when he was convinced they were unfounded, he persuaded her not to file an ethics complaint, insisting instead that Ms. Roden pay McManus’s outstanding bill.

John W. Wopat, III, Esq. (Wopat) represented Ms. Roden before McManus. He withdrew as her counsel in that matter because of a conflict of interest. Wopat is the grievant in the present matter.

Ms. Roden had serious financial problems when she first sought respondent’s assistance. She was basically penniless; the mortgage on her house was in default and on the verge of being foreclosed. Nonetheless, respondent agreed to represent her after receiving a $1,500 retainer from her employer, a restaurant owner whom respondent represented. Respondent informed Ms. Roden that he would charge her an hourly rate of $150. He also told her that due to her strained financial situation, he would secure payment for his services by drawing his fees from any money he recovered for her. Respondent never reduced that informal, oral-fee agreement to writing. Ms. Roden acknowledged that respondent simply would tell her from time to time that he wanted to take his fees from monies received on her behalf. That arrangement was acceptable to her.

For the first three years after becoming Ms. Roden’s attorney, respondent performed legal services for her without receiving any compensation other than the initial $1,500 retainer. In April 1986 respondent received his first fee in the amount of $20,000.

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Bluebook (online)
659 A.2d 460, 140 N.J. 501, 1995 N.J. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shelly-nj-1995.