Without Explanation

I regularly express concern about the sorry state of attorney discipline in New Jersey.

Often the object of my disaffection is the Disciplinary Review Board .

Not today. 

The New Jersey Supreme Court rejected a Disciplinary Review Board finding of knowing misappropriation meriting disbarment and reduced the sanction to public censure.

The court concludes – without  a word of discussion or analysis – that there was not clear and convincing evidence of knowing misappropriation and that a censure is sufficient “to ensure public safety.”

The board had (and explains why) it unanimously reached a contrary conclusion

The knowing misappropriation case against respondent is straightforward. In April 2015, a “computer glitch” led to a shortage on the Lessman ledger, which respondent discovered the following month when he performed a threeway reconciliation. Although respondent immediately reported the shortage to Lessman, and requested that he replace the funds, Lessman failed to do so, and respondent took no further steps to replenish the trust account, until years later and shortly before the disciplinary hearing.

…to establish knowing misappropriation, the evidence must be clear and convincing that the attorney took client funds, knowing that he or she was not authorized to do so, and used them. Here, by respondent’s admission, he knew that there was a $7,414 shortage in the trust account, which he failed to replenish. He then continued to disburse trust account monies, including more than $15,000 each to Lessman and to himself, knowing that the trust account continued to have a shortage.

Attorneys, such as respondent, who become aware of shortages in their trust accounts and fail to replenish the funds commit knowing misappropriation and are, thus, disbarred.

Not today. 

At a minimum, if this court wants to invoke its obligation to protect public safety, it needs to explain to that public and the Bar why it rejected the findings and conclusions of its board. (Mike Frisch)