Not Clucking Defiance, Not Conduct Prejudicial, Floodgates Closed

An attorney who settled a malpractice claim brought by a former client but was unable to pay the agreed $50,000 did not engage in conduct prejudicial to the administration of justice, according to a report of the New Jersey Disciplinary Review Board.

The DRB recommended (and the court imposed) an admonishment for his failure to respond to the bar investigation.

As to the alleged Rule 8.4(d) violation

Respondent’s failure to comply with the settlement in the malpractice action is a civil matter, not a disciplinary matter. If respondent’s actions in this context become fodder for a finding of misconduct, then every attorney-litigant who is unable to pay a civil judgment will face disciplinary charges. The floodgates will be opened.

Moreover, logic forces the conclusion that respondent was unable to timely pay the judgment against him. Had he timely paid, the amount due to his client would have been $50,000. Otherwise, the figure would rise to $118,000. Respondent testified that he ultimately paid $93,766.34 to the former client. Clearly, it was in his interest to timely pay the amount due, had he been able to. But there is no indication that his failure to timely make the payment was an act of defiance… To find that respondent was guilty of conduct prejudicial to the administration of justice implies a malevolent intent that the record does not support. The disciplinary system is not meant to function as a collection agency.

The attorney suffered from (entirely understandable) depression during the period of the violations –he had lost his mother, father and sister and was divorced. (Mike Frisch)