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New Jersey state ethics prosecutors have denounced the Disciplinary Review Board (DRB) for recommending “wholesale absolution” of eight partners implicated in a million-dollar fee-splitting scandal at Tomar Simonoff, a defunct Cherry Hill firm. The state Supreme Court should punish the eight instead of letting them off with no discipline as the DRB recommended last month, the Office of Attorney Ethics (OAE) said Jan. 8 in a petition for review. The DRB found that 11 partners at Tomar Simonoff Adourian O’Brien Kaplan Jacoby & Graziano paid more than $1 million in unethical referral fees to nonlawyers at the firm or knew about the payments without blowing the whistle, as required by ethics rules. The board said suspensions for three partners and a reprimand for an associate were warranted, but it recommended a pass for the other eight partners, finding they were contrite, were less involved, had otherwise clean records and had suffered enough during the years since 2000, when the investigation began. But the OAE said such lenience would be unprecedented in New Jersey, and bad. “There has never been a New Jersey case granting wholesale absolution for unethical conduct as recommended by the board for these respondents,” Assistant Ethics Counsel Michael Sweeney said in the petition. He said all 11 partners and the associate engaged in intentional unethical conduct for at least 10 years and were able to do so because they conspired to keep silent about the fee-sharing. “While the board cites the passage of time as a mitigating factor, the logic of rewarding respondents for concealing their unethical conduct from disciplinary authorities and thus prolonging their ultimate discipline is questionable,” the petition said. “To impose no discipline under these circumstances is tantamount to condoning this unethical conduct. Public confidence in the bar would undoubtedly be undermined by such a result.” The firm had 65 lawyers in Cherry Hill and three other towns before it collapsed in 2000. An OAE investigation unearthed evidence that the firm had a practice of paying 10 percent to 20 percent of fees per case to nonlawyer rainmakers. There were no allegations of payments to runners outside the firm, but paying a percentage of fees in a particular case to nonlawyer employees is also taboo. Robert Buccilli, administrator of the Northfield branch, earned $807,000 in fees from 1992-97, and payments to nonlawyers continued for two years after a firmwide decision in 1997 that the practice was unethical. The board recommended one-year suspensions for Buccilli’s supervisor, Michael Kaplan, now of Jarve & Kaplan in Marlton, and for Managing Partner Michael Graziano, now a Cherry Hill solo; six months for partner Charles Riley, now a Cherry Hill solo; and a reprimand for associate Cynthia Brassington, now a Linwood solo. The eight partners the board would not punish are David Jacoby, Robert O’Brien, Alan Sklarsky, Robert Capuano, Howard Simonoff, Edward Adourian Jr., Alfred Vitarelli and Charles Winne. In its petition, the OAE said the DRB failed to cite any case to support the “unusual recommendation” that no punishment was warranted for lawyers who knowingly permitted the fee-share practice. To be sure, the no-punishment option has been chosen by the court when a finding creates a new standard or when a lawyer acts under the mistaken belief the conduct was ethical. But those grounds for compassion don’t apply in this case, the OAE said. The OAE also took issue with the DRB’s conclusion that the eight deserve a break because prosecutors engaged in selective prosecution. According to the DRB, that was a mitigating factor in favor of the eight Tomar Simonoff partners. Other Tomar Simonoff lawyers were allowed to escape prosecution under a rule that gives the OAE discretion over whom to pursue and to divert minor offenders from the discipline system. Lawyers admitted to the diversion program are not identified in public. “Without relying upon any evidence or conducting any analysis, the board has presumed that that confidential determinations made by the director, OAE, to dismiss or divert matters during the investigation of the case were not only erroneous but made with discriminatory intent,” the petition said. It asked the court to strike the board’s finding of “selective prosecution.” Finally, the petition criticized the DRB for censuring the firm as a whole, a rare punishment the OAE had not requested in this case. Disciplining a defunct firm that wasn’t represented in the proceedings is a due process violation, the OAE said. “Disciplining a non-existent law firm in lieu of the individual lawyers who perpetrated the misconduct suggests to the public that these lawyers were permitted to engage in a ‘shell game’ in order to avoid individual responsibility,” the OAE said. There was no immediate comment from lawyers for seven of the eight. Vitarelli’s lawyer, Robert Borbe of Berlin, said, “The board has spoken and it should stop there.” Lawyers for the Tomar Simonoff partners who face suspensions aren’t commenting on the OAE petition because it doesn’t affect their clients. They are readying petitions of their own, due Jan. 29, that will argue that the DRB got its facts wrong or was too severe, given the passage of time and the otherwise unblemished records of the lawyers involved. Graziano’s lawyer, Kevin Marino of Marino Tortorella in Chatham, said everyone � not just the eight � deserves a break for living with a case that has been disruptive to their practices so long. “The passage of time that this has been pending militates, in my mind, very heavily toward a suspended suspension,” he said. “It should apply across the board.” Kaplan’s lawyer, Arnold Mytelka of Kraemer Burns Mytelka Lovell & Kulka in Springfield, said the DRB made erroneous findings of fact, including a central one that Kaplan had knowledge of unethical payments to Buccilli. This article originally appeared in the New Jersey Law Journal, a publication of ALM.

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