Unearned Fee
An attorney has been suspended for six months by the New Jersey Supreme Court.
The Disciplinary Review Board reviewed his history of prior discipline and described the matter at issue
On February 23, 2018, Denise Funnell met with respondent at a restaurant in Wayne Township, New Jersey and retained him to defend her son in connection with a municipal court matter. While at the restaurant, Funnell provided respondent with a $1,000 check toward his legal fee. Respondent, in turn, provided Funnell with a receipt, which indicated that his fee had been “Pd in full.”
Following their meeting at the restaurant, respondent failed to appear at the municipal court hearing to defend Funnell’s son. Rather, on the date of the scheduled hearing, respondent sent Funnell a text message, claiming that he had been in a “car crash.” At oral argument before us, respondent conceded that he had neither arranged for an attorney from his law firm to cover his court appearance nor contacted the municipal court to re-schedule Funnell’s son’s matter.
She could not reach him and he missed a second court appearance but
Funnell discovered that, on March 22, 2018, respondent had negotiated her $1,000 legal fee check, further endorsing the instrument with the notation “payable to Edward Hubinger” directly below respondent’s signature on the back of the check. Consequently, on April 6, 2018, Funnell went to the Wayne Township Police Department (the WTPD) to report that her $1,000 check had been negotiated, despite respondent’s failure to perform any legal services on behalf of her son.
The police learned that Mr. Hubinger was Respondent’s residential landlord and that he was facing eviction.
He pled guilty to disorderly persons theft by deception
Judge Katz accepted respondent’s guilty plea and imposed a conditional dismissal, pursuant to N.J.S.A. 2C:43-13.1,4 with the requirements that respondent: (1) pay Funnell $1,000 in restitution, within thirty days; (2) pay $339 in court costs, within sixty days; and (3) successfully complete one year of probation. Judge Katz advised respondent that, if he complied with each of the conditions, his matter would be dismissed in one year.
Despite “unsatisfactory” compliance
Despite respondent’s failure to comply with the terms of his probation, Judge Katz dismissed respondent’s disorderly persons theft matter because “restitution ha[d] been paid[.]”
The Office of Attorney Ethics sought a censure but
At oral argument and in his submissions to us, respondent did not attempt to dispute the specific facts underlying his conviction but, rather, criticized the municipal prosecutor’s and the WTMC’s procedures in connection with his guilty plea. Specifically, he claimed that the WTMC did not elicit a sufficient “factual basis” for his guilty plea.
The DRB concluded that the guilty plea foreclosed relitigation of the conviction.
Sanction
Respondent’s continued indifference toward his clients and court orders clearly warrants enhanced discipline. Specifically, respondent not only failed to perform any legal work on behalf of Funnell’s son, but also failed to pay Funnell’s court-ordered restitution for at least one year. Worse still, respondent refused to report to his court-ordered probation and falsely claimed, in his submissions to us and during his June 2020 municipal court appearance, that he was not required to do so. Finally, respondent altogether failed to pay any portion of the court-ordered $339 in costs in connection with his conditional dismissal.
Thus, considering respondent’s failure to learn from his past mistakes and his penchant for disregarding client matters and court orders, including the Court’s 2021 Order to Show Cause, we determine that a six-month suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.
(Mike Friisch)