Editor's note: This article first appeared in New Jersey Lawyer, the NJSBA's award-winning bi-monthly magazine. To check out the magazine archives visit here.
By Bonnie C. Frost, Esq.
Chair, NJSBA Ethics Diversionary Program
Einhorn Barbarito Frost & Botwinick PC, Denville
The Disciplinary Review Board (DRB) is an intermediate appellate tribunal appointed by the New Jersey Supreme Court and is made up of five lawyers, three lay persons and one retired judge [Rule 1:20-15(a)]. It reviews, de novo, ethics decisions rendered by local ethics committees and special masters which take testimony and receive evidence as to the grievance against an attorney. If there is a recommendation for discipline at the close of the hearing, then the DRB may hear oral argument or a respondent may agree to rely on the record without argument [Rule 1:20-15(f)].
After argument, the Board drafts a decision reached after discussion among the members and submits the underlying record including the ethics complaint, evidence submitted at the hearing, transcripts of any hearing, the ethics committee or special master’s decision, and its decision, including any dissent, to the Supreme Court for the entry of an order which imposes discipline.
The Disciplinary Review Board determines the level of discipline which should be imposed upon a lawyer. However, it is only the Supreme Court which can enter an order for discipline order. Thus, the final determination of the level of discipline is solely within the purview of the Supreme Court. A decision of the DRB will become final once the Court enters an order, unless the respondent, the Office of Attorney Ethics or the Court on its own motion requests a review of the DRB’s determination [Rule 1:20-16(b)]. The Supreme Court reviews the record de novo.
It is true that the Supreme Court adopts the DRB’s recommendations approximately 90% of the time, and thus, the DRB’s opinion, more often than not, becomes binding and precedential.
The diversity of the backgrounds and experiences of the members of the Board, however, is integral to the decision-making process. It serves to ensure that the final decision is looked at from a variety of perspectives, not just one person’s view of the facts.
The Supreme Court relies on the decisions of the DRB and takes note when a member or members of the Board write a dissent just as they take note when a decision is unanimous.
A dissent signals to the Court that the facts present an issue the DRB would like the Court to review. Take for example, the case of In re Torre, 223 N.J. 538 (2015). In that case, Torre “borrowed” $89,250 from an unsophisticated 89-year-old client, a sum which comprised more than 70% of her estate. It appeared he had little intent of repaying the loan as he had made only two payments within a year of “borrowing” the money and in the 4½ years it took for the matter to arrive at the Supreme Court, he had made no payments to her or her estate as she had passed on shortly after his last payment in June 2009.
He never told the client to seek independent counsel even though he knew she relied upon him as she had designated him the executor of her will and had granted him a power of attorney. Even more disturbing to the Court was the respondent’s attitude when he appeared before it. He showed no remorse as to his actions. The dissent prompted the Court to issue a written decision where Mr. Torre received a one-year suspension. This decision alerted lawyers of the Court’s disapproval of lawyers who take advantage of elderly clients for their own benefit. This case established the precedent that such behavior will result in a one-year suspension, a level of discipline which was in excess of what the DRB has decided and even what the dissent had recommended.
Another example of the importance of the composition of the Board and how it can affect a disciplinary result is found in the case, In the Matter of Jack N. Frost, 171 N.J. 308 (2002). In that case, Frost obtained a loan from a client's settlement funds without appropriate safeguards for the client or a third party lienor after misrepresenting his finances, the true ownership of his assets, and his financial position to induce his client to participate in the loan. The Court noted that the dissent of two lay members was persuasive in making its decision to disbar him.
If a respondent faces disbarment as a result of a recommendation of disbarment from the DRB, or, if it believes the facts of a case and the record below requires the lawyer to defend themselves even if the ethical breach would not end in disbarment, it will issue an Order to Show Cause for the attorney to appear before the Court and explain themselves as to “why they should not be disbarred or otherwise disciplined.”
Needless to say, one should show up if the Supreme Court asks for one’s presence. If one does not appear, invariably that respondent will be disbarred.
Even if one is facing a recommendation of disbarment, showing up and explaining oneself, can militate against harsh punishment. In the recent case of Karina Pia Lucid, 248 N.J. 514 (2021), a respondent who faced disbarment for knowing misappropriation of a client’s funds, was only censured. She showed up. She was contrite, did not use the funds for her own benefit and presented a sympathetic explanation that swayed the Court.