Tag Archives: misrepresentation

New Jersey lawyer receives censure for neglecting client matters, failing to communicate with clients, and fraud and dishonesty

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order which adopted the findings of the New Jersey Disciplinary Review Board and censured a lawyer for neglecting client matters, failing to communicate with clients, and engaging in conduct involving fraud or dishonesty.  The case is In The Matter of John R. Dusinberre, D-37 September Term 2015 078531 (Supreme Court of New Jersey April 5, 2017).  The New Jersey Supreme Court Order is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1082216 and the Disciplinary Board (DRB) Decision dated November 9, 2016 is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1077667

According to the DRB Decision, the lawyer was charged with violating Bar rules in four separate matters:

“In the first matter, respondent represented Anthony Domenick and 407-409 Summer Associates, LLC for a Paterson condominium development known as ‘Sandy Hill at Summer Street.’ The terms of the representation called for respondent to file a public offering statement (POS) with the New Jersey Division of Community Affairs (DCA) and to record a master deed in the county clerk’s office. Respondent told his client that he had filed the POS with the DCA and furnished him with a copy of a November 12, 2007 POS carrying registration number ‘04368.’ Respondent stipulated that he never filed a POS with the DCA. Rather, he had fabricated the POS and created a fictitious registration number; the DCA had never assigned a registration number to the Sandy Hill project. Although respondent also failed to record the master deed, he either informed his client, or led him to believe, that he had done so.

“In a second matter, respondent represented a client identified only as ‘Mr. Cerquirra’ and ‘88 St. Francis LLC’ regarding a condominium development project at 88 St. Francis Street in Newark. The representation required respondent to register the project with the DCA and to obtain a registration order. Respondent informed the client that he had obtained a registration order for the project from the DCA. He also gave the client an October 27, 2008 letter, purportedly from DCA’s Manager of the Planned Real Estate Department, Stewart P. Pallonis. Enclosed with that letter was an order of registration from the DCA carrying registration number 04487, and signed ‘Stewart P. Pallonis.’  In fact, respondent never registered the 88 St. Francis Street project with the DCA. Rather, he had fabricated both the Pallonis letter and the registration order, signing Pallonis’ name to both documents before giving them to the client.

“In a third matter, respondent represented Sterling Properties (Sterling) for a Cedar Knolls condominium project known as ‘Viera at Hanover.’ The representation required respondent to register the project with the DCA, but he failed to do so. Respondent, nevertheless, led Sterling to believe that he had registered the project with the DCA, knowing that he had not done so. In reliance on respondent’s false information, Sterling went forward with the project.

“In a fourth matter, respondent represented Sterling for another condominium project in Piscataway. That representation, too, required respondent to register the project with the DCA. Again, respondent failed to do so. Respondent led Sterling to believe that the Piscataway project, too, was registered with the DCA, knowing that it was not. Relying on respondent’s statements, Sterling proceeded with the development project.”

“During respondent’s entire thirty-four-year career at MSLD, he reported to Barry Mandelbaum, the managing attorney, and twelve years his senior. Respondent described Mandelbaum as a “benevolent despot” and a “mentor.” Respondent was never “encouraged” to generate business for the firm. Rather, he tended to work on legal matters that Mandelbaum generated.

“Respondent described his relationship with Mandelbaum as a stressful one. Mandelbaum would berate respondent publicly, place notes on respondent’s door about perceived failings, and subject him to ‘105 decibel,’ public ‘dress downs,’ all of which were extremely embarrassing.

“As the law firm grew larger, younger attorneys became partners. By the mid-2000s, some of those partners had come to expect respondent to complete work on projects that they had generated, placing additional pressure on respondent to perform.

“Several years before respondent engaged in the within misconduct, MSLD established an executive committee to manage the law firm. Respondent perceived that the new arrangement rewarded some of the younger, income-generating attorneys, at his expense. Feeling exposed, he became “terrified” about losing his job. At that juncture, he grew even more reliant on Mandelbaum for protection:

So my desire and drive to please him became extremely strong. And I can’t tell you the number of times when I would have an issue with a client, I would hear the client five minutes later on the phone with Barry and then I would hear Barry’s footsteps stomping down the hall to basically dress me down or yell at me and to confront me, or whatever it might be very publicly.

And it was extremely upsetting and got to the point where I went from a lawyer who loved to go to work every day to a lawyer who dreaded pulling into the parking lot of my law firm, counting whose cars were in to try and decide whose work I should be doing that day so that I wouldn’t get yelled at or — or, you know, almost — I almost use the word bullied, although I’m an adult and was an adult at the time, and it’s a hard concept to have, but it’s the desperate situation I found myself in. (T20-10 to T21-2.)

“Worried about being ‘kicked out’ of MSLD, respondent felt tremendous pressure to complete tasks on time, according to schedules that other attorneys prepared for him. Also pressing was the fear that, because he was over sixty years old and had never been in another legal setting, he could not strike out on his own.”

The DRB Decision also found that the lawyer had no prior discipline, expressed remorse for his misconduct, and paid former clients, the firm and the DCA hundreds of thousands of dollars as restitution.  The DRB recommended a censure (which is a stronger sanction than a reprimand in New Jersey).  The New Jersey Supreme Court adopted that sanction and censured the lawyer.

Bottom line:  This case is unusual, to say the least.  Although the lawyer provided significant mitigation (including the serious “berating” by a supervising partner and “cracking under the pressure” of the partner’s criticism), his underlying misconduct, including his multiple false statements to clients, neglecting client matters and failing to communicate, would appear to be serious enough to merit a suspension, notwithstanding the mitigation that he provided.  The lawyer was in his 50’s and 60’s when the misconduct occurred. One could certainly conclude that the lawyer’s testimony about the “pressure” of the practice was somewhat of an excuse and not an explanation.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Supreme Court increases referee’s recommended discipline for multiple Bar Rule violations from 91 day suspension to disbarment

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida increasing the referee’s recommended discipline from a 91 day suspension to disbarment.  The opinion is The Florida Bar v. Swann, SC11-836 (June 20, 2013).  The opinion is attached and is also here: http://www.floridasupremecourt.org/decisions/2013/sc11-836.pdf

According to the opinion, in April 2011, The Florida Bar filed a five-count complaint against the lawyer, alleging that he engaged in misconduct in violation of several of the Rules Regulating the Florida Bar.  A referee was appointed to consider the matter and, following the final hearing, submitted his report with findings and recommendations to the Court.  The report found numerous Bar Rule violations on all five counts and recommended a 91 day suspension.  The report found that the lawyer engaged in dishonest and deceitful conduct, took improper advantage of his mother in serving as personal representative of his late father’s estate, concealed assets in his divorce and was involved with his girlfriend to take advantage of an elderly and vulnerable client.  The opinion states:

“In this case, (the lawyer)’s various acts of misconduct must be considered together as a whole.  (The lawyer) engaged in twenty-six separate rule violations, spanning a period of several years.  Some of his conduct, especially his involvement with Ms. Rhoualmi to exploit his client, Mr. Shelton, is particularly serious.  (The lawyer)’s extensive and egregious misdeeds warrant a more severe sanction than the ninety-one-day suspension recommended by the referee.

“Moreover, every count described in the referee’s report involves some instance of (the lawyer)’s dishonest and deceitful conduct. Our prior decisions have made clear that basic fundamental dishonesty is a serious flaw, one which cannot be tolerated by a profession that relies on the truthfulness of its members.  Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002); Fla. Bar v. Korones, 752 So. 2d 586, 591 (Fla. 2000).  We conclude that (the lawyer)’s numerous acts of dishonest conduct, together with his other serious ethical violations, warrant disbarment

“Finally, the fact that much of the misconduct in this case involves (the lawyer)’s personal affairs does not change our conclusion that disbarment is warranted. This Court has long held that ethical violations which occur while a member of The Florida Bar is not acting as an attorney can nonetheless subject the attorney to disciplinary proceedings. 

 

As this Court has stated before, “an attorney is an attorney is an attorney.” Even in personal transactions and when not acting as an attorney, attorneys must avoid tarnishing the professional image or damaging the public. . . . The practice of law is a privilege which carries with it responsibilities as well as rights. That an attorney might, as it were, wear different hats at different times does not mean that professional ethics can be “checked at the door” or that unethical or unprofessional conduct by a member of the legal profession can be tolerated.  

 

Fla. Bar v. Della-Donna, 583 So. 2d 307, 310 (Fla. 1989) (citations and internal quotation marks omitted).  “This Court has previously imposed lengthy suspensions or disbarment when attorneys engage in dishonest conduct in their personal matters. See, e.g., Fla. Bar v. Draughon, 94 So. 3d 566, 571 (Fla. 2012) (suspending an attorney for one year for defrauding the former property owner in a real estate transaction) (‘Although Draughon was acting on behalf of his own corporation, and not as a lawyer representing a client in a transaction, he is nonetheless a member of The Florida Bar and subject to the disciplinary authority of this Court. The Court expects members of the Bar to conduct their personal business affairs with honesty and in accordance with the law.’) (citation and internal quotation marks omitted); Fla. Bar v. Hall, 49 So. 3d 1254 (Fla. 2010) (disbarring an attorney for harassing property owners who refused the attorney’s offer to buy their property and creating a false agreement for sale). In Hall, the Court expressly noted that Hall ‘purposefully used her knowledge of the law to harm others, for her own personal benefit.’ Id. at 1258. Similarly, in this case, we conclude that Swann used his knowledge of the law to manipulate others.”

“Ultimately, based upon (the lawyer’s) numerous acts of dishonest conduct, Ultimately, based upon Swann’s numerous acts of dishonest conduct, together with the aggravating2 and mitigating factors found by the referee, we conclude that disbarment is warranted. Thus, we disapprove the referee’s recommended sanction, a ninety-one-day suspension, and instead disbar (the lawyer).”  

Bottom line: This is another example of the Florida Supreme Court not hesitating to increase the discipline recommended by the referee assigned to the Bar disciplinary case, in this case from a 91 day suspension (which is the minimum for a rehabilitative suspension requiring reinstatement) to disbarment, which was requested by The Florida Bar.

Be careful out there!

Disclaimer:  this blog does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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