In Re Wigenton

40 A.3d 723, 210 N.J. 95, 2012 WL 1085582, 2012 N.J. LEXIS 375
CourtSupreme Court of New Jersey
DecidedApril 3, 2012
DocketD-131 September Term 2010, 068659
StatusPublished
Cited by1 cases

This text of 40 A.3d 723 (In Re Wigenton) 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 Wigenton, 40 A.3d 723, 210 N.J. 95, 2012 WL 1085582, 2012 N.J. LEXIS 375 (N.J. 2012).

Opinions

PER CURIAM.

This disciplinary matter was commenced by a 2006 complaint filed by the Office of Attorney Ethics (OAE) charging respondent, Kevin P. Wigenton of Red Bank, who was admitted to the bar in this State in 1992, with two instances of knowing misappropriation of trust funds, six instances of knowing misappropriation of escrow funds, and representing the seller while serving as a real estate broker in the same real estate transaction. A 2007 amendment to the complaint, in pertinent part, added four additional instances of knowing misappropriation of client and escrow funds. The counts related to findings discovered as the result of an initial random compliance audit and a second audit, by the OAE. Both took place in the latter part of 2002, six years after respondent had commenced a solo law practice in 1996. Prior to that time, respondent was not engaged in a law practice under the supervision of other attorneys. Instead, he had continued, after graduation from law school and admission to the bar, to work exclusively within the corporation where he had been employed full-time while attending law school. We note at the outset that there is no claim of client harm involved in this matter. None was pled or even remotely presented during the wealth of evidence produced at the hearing on this complaint.

An extensive hearing record was developed and Special Master Neil H. Shuster, J.S.C. (ret.) ultimately recommended a four-month suspension based on the violations that he found to have [98]*98been proven by clear and convincing evidence. Most important was the Special Master’s finding that respondent did not knowingly misappropriate either trust funds or escrow funds. Rather, in a painstaking analysis of the evidence, the Special Master found that respondent reasonably, but mistakenly, believed that he was entitled to the funds in issue in the misappropriations charges pled. Respondent’s admittedly “terrible” recordkeeping practices were blamed by the Special Master as the progenitor of that mistaken belief, not a willful ignorance designed to camouflage a more serious intent to take funds to which respondent was not entitled. That critical finding led the Special Master to conclude that the OAE proved respondent had committed negligent misappropriation of funds. Recordkeeping violations and a conflict of interest also were found to have been proven by clear and convincing evidence.

The Disciplinary Review Board (DRB) exhaustively reviewed the evidential record, as well as the proposed findings and conclusions rendered by the Special Master, and reached the same conclusion, differing only with respect to the quantum of punishment suitable under the circumstances. In its ninety-nine page decision filed in this matter, the DRB concluded that respondent should be censured for violating RPC 1.15(a) (negligent misappropriation of client trust and escrow funds and failure to safeguard funds), failure to comply with attorney recordkeeping requirements, and committing a conflict of interest contrary to the direction in Advisory Committee on Professional Ethics Opinion 514, 11 N.J.L.J. 392 (Apr. 14, 1983), as well as RPC 1.7(b).

The OAE filed a petition for review seeking respondent’s disbarment. We granted the petition for review and issued an Order to Show Cause. We have now reviewed the record and the parties’ briefs, and had the benefit of oral argument. We are fully in accord with the DRB’s assessment that the proofs against respondent demonstrate negligent, but not knowing, misappropriation. In our review of attorney-discipline matters, the seasoned judgment of the DRB is important to us, see In re Kushner, 101 [99]*99N.J. 397, 403, 502 A.2d 32 (1986) (stating that “[w]e ordinarily place great weight on the recommendation of the Disciplinary Review Board” (citing In re Rosen, 88 N.J. 1, 3, 438 A.2d 316 (1981); In re Mimbelli, 79 N.J. 597, 602, 401 A.2d 1090 (1979))), and we have no quarrel with its assessment of the proofs marshaled in the record presented in this particular matter.

Indeed, we note with approval that both the Special Master and the DRB combed the testimony and documentary evidence, count by count, transaction by transaction, and concluded, in careful findings supported with explanation, that respondent reasonably believed he was entitled to the funds. There is no need to repeat that analysis. We emphasize only that the DRB’s decision took into proper account the nature of respondent’s recordkeeping deficiencies when it concluded: 1) that respondent reasonably believed that he had enough funds in his trust account; and 2) that he displayed, at worst, a woeful lack of knowledge of the true status of his accounts before disbursing legal fees and costs to himself, but not an intentional ignorance that cloaked a more nefarious intent. See, e.g., In re Johnson, 105 N.J. 249, 260, 520 A.2d 3 (1987) (“The intentional and purposeful avoidance of knowing what is going on in one’s trust account will not be deemed a shield against proof of what would otherwise be a ‘knowing misappropriation.’ ”).

Indeed, the findings by the Special Master and DRB intertwined on those scores. Both concluded that respondent did not realize there was any shortage until his accountant, who was retained between the two audits by the OAE, found them, and both explained their reasons for concluding that respondent’s specific recordkeeping errors led to his reasonable, but mistaken, belief that he was entitled, on specific occasions, to withdraw or deduct an incorrect amount from his trust account, or to deposit directly certain funds into his business account believing that his trust account contained sufficient amounts to settle client accounts’ needs. Although his accounting methods were, as the DRB put it, [100]*100“grossly deficient,” this was not a ease in which a client or third party suffered. The DRB made it a point to note that

[the OAE’s senior compliance auditor] acknowledged that, as to the real estate transactions referenced in the formal ethics complaint, all of the funds had been disbursed; the closing of title had proceeded in a timely fashion; all documents had been properly and timely recorded; and all mortgages, judgments, and liens had been properly satisfied.

Finally, the DRB concluded that there was a failure of proof of a $42,000 shortage in respondent’s trust account, and we take no issue with that finding. It is supportable on this record.

In sum, the DRB found that the October 4, 2002, random audit that led to a lengthy give-and-take period in which respondent fully cooperated, was contrite, and did not conceal his improper recordkeeping practices, and a subsequent disciplinary action whose proceedings have cast a shadow over respondent’s practice since February 2007, did not produce evidence that any shortage in respondent’s trust account was caused by knowing misappropriation. The DRB concluded that the evidence led to findings of the existence of negligent misappropriation, poor recordkeeping, failure to safeguard funds, and conflict of interest. Because we agree with the DRB’s assessment of the evidence, we find no benefit in repeating its detailed reasoning.

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Related

In Re Wigenton
40 A.3d 723 (Supreme Court of New Jersey, 2012)

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Bluebook (online)
40 A.3d 723, 210 N.J. 95, 2012 WL 1085582, 2012 N.J. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wigenton-nj-2012.