Pardon Does Not Preclude Bar Sanction
The New Jersey Supreme Court suspended an attorney who was convicted of two counts of wilfully failing to pay payroll taxes and one count of false statement on a loan application.
The court imposed a two-year suspension with credit for 22 months served on interim suspension and
ORDERED that respondent shall, prior to reinstatement from this suspension, provide proof to the Office of Attorney Ethics of respondent’s fitness to practice law, as attested to by a mental health professional approved by the Office of Attorney Ethics…
The Disciplinary Review Board noted in its report and recommendation
On January 19, 2021, respondent received a full presidential pardon, via an executive order of clemency. Accordingly, he did not serve his sentence.
Respondent was the managing partner of his firm
Throughout 2016, respondent paid credit card bills directly from the Firm’s business account for personal expenditures, such as clothing; meals; jewelry; antiques; garden supplies; travel; and college expenses.
The Firm had available funds to pay the payroll taxes it owed to the IRS for the first two quarters of 2016; respondent, however, used the Firm’s funds to pay for his and his family’s personal expenses.
As of March 7, 2019, when the federal grand jury returned the six-count indictment against respondent, the Firm owed, for the first quarter of 2016, $149,194.85 in unpaid payroll taxes, $22,131.37 in accrued interest, and $15,128.56 in penalties. For the second quarter of 2016, the Firm owed $149,383.45 in unpaid payroll taxes, $25,454.93 in interest, and $21,186.85 in penalties.
Also
Respondent misrepresented his liabilities on the loan application so that he could cash out $567,354.32 of equity from his primary residence. The loan closed on January 22, 2015.
On April 17, 2019, the jury found respondent guilty of Count Six of the indictment, which charged him with making false statements in a loan application.
A cite to a case I prosecuted
As a preliminary matter, and as the OAE observed, the January 26, 2021 executive grant of clemency does not bar or otherwise inhibit our jurisdiction to accept the parties’ disciplinary stipulation and impose discipline. The Court, in its May 25, 2021 Order reinstating respondent to the practice of law, expressly stated that the reinstatement “has no effect on any potential disciplinary matter relating to the conduct underlying [respondent’s] pardoned conviction,” citing In re Petition of Expungement of Criminal Record Belonging to T.O., 244 N.J. 514, 536 (2021) (noting that “a pardon removes the legal disabilities that stem from the fact of a conviction but does not erase what happened when an offense was committed or restore a person’s good character.”). See also In re Abrams, 689 A.2d 6, 7 (D.C. 1997) (a presidential pardon does not preclude the exercise of jurisdiction in the context of an attorney disciplinary proceeding).
Effect of interim suspension on DRB’s proposed sanction in light of interim suspension
Here, however, respondent was reinstated by the Court on March 25, 2021, after a period of suspension of approximately twenty-two months. Thus, under these unique circumstances, we determine that respondent’s two-year suspension shall run prospectively, upon Order of the Court, but with credit for the entirety of his temporary suspension.
Further, we recommend, as a condition to his discipline, that respondent be required to provide to the OAE proof of his fitness to practice law, as attested to by a mental health professional approved by the OAE.
Politico reported on the pardon and its potential impact on New Jersey politics going forward. (Mike Frisch)