Court Marks New Middle Ground for Lawyer Discipline

The New Jersey Supreme Court has created the new punishment of indefinite suspension for lawyers "on the cusp of disbarment" who seem capable of rehabilitation. The new rule, effective Sept. 3, was enacted in response to longstanding complaints that the court, unlike regulators in most other states, has a policy of permanent disbarment that gives New Jersey lawyers no chance to redeem themselves and return to practice.

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The New Jersey Supreme Court has created the new punishment of indefinite suspension for offenders “on the cusp of disbarment” who seem capable of rehabilitation. Under new Rule 1:20-15A(2), effective Sept. 3, lawyers given indefinite suspensions will be permitted to petition for reinstatement after five years. The justices acted in response to longstanding complaints that the court, unlike regulators in most other states, has a policy of permanent disbarment that gives disbarred New Jersey lawyers no chance to redeem themselves and return to practice. The State Bar Association had urged the court to emulate other states that allow disbarred lawyers to petition for reinstatement; New York has a six-year wait. The court wouldn’t go that far, so disbarment is still forever in New Jersey. But by creating the new category, the court gave itself the option of deciding at the time of punishment that an errant attorney’s career might be salvageable. “As set forth in the Rule, serious ethical misconduct that might otherwise require disbarment may, in the light of circumstances, result in an indeterminate suspension,” the court said. New Jersey is one of 10 states with permanent disbarment, which “discounts the possibility for character reform and rehabilitation,” the State Bar said in an announcement hailing the state supreme court’s move. A member of the Bar committee that proposed abandonment of permanent disbarment, Carl Poplar of Turnersville, N.J.’s Poplar & Eastlack, says the Bar proposal was preferable to the final rule. “I think it’s better than what we had, but it was a significant compromise,” he says. It was a compromise because David Johnson, director of the Office of Attorney Ethics, has been a consistent advocate of permanent disbarment. Poplar says the new rule, while a step forward, would be better if it included guidance about what criteria will be used to determine who is eligible for indefinite suspensions. Another member of the Bar committee, Justin Walder of Roseland, N.J.’s Walder, Hayden & Brogan, exhibited unalloyed enthusiasm for the New Jersey Supreme Court’s decision, which he called a “flexible approach” that will take into account mitigating circumstances that make disbarment unnecessary. “Now we have an alternative to a lifetime sentence of perpetual disgrace,” Walder says. The court did not say what circumstances would make a lawyer eligible for indefinite suspension, but Walder, Poplar and other lawyers who represent ethics violators suggest at least one possibility: leniency for lawyers whose breaches were caused by mental problems or addiction and who are on the road to recovery at the time of their punishment. Over the past decade, lawyers with such problems who have taken client funds have argued that their impairment was a mitigating circumstance that warranted relaxation of the so-called Wilson rule. In re Wilson, 81 N.J. 451, and subsequent interpretations say lawyers guilty of willful misappropriation must be disbarred unless they can perform the almost impossible task of showing direct causation between a personal problem and the misappropriation. In November 1996, Lee Hymerling, chairman of the state Disciplinary Review Board, wrote a passionate concurrence that railed against the Wilson rule’s application in the case of Jude Tonzola, a Newark solo who blamed psychiatric problems for his offenses. Hymerling argued for a three-year suspension and tough conditions for readmission but the New Jersey Supreme Court declined his invitation to lighten Wilson. Tonzola’s lawyer, Bedminster, N.J., solo practitioner William Connelly, said last week that if the indefinite suspension option had been available, Tonzola might have benefited from it. “I think it’s a great rule,” he says of the new option. An even loftier voice than Hymerling’s also raised questions about the fairness of permanent disbarment. In a May 1996 decision to disbar John Downer, an East Orange, N.J., title company lawyer who pocketed premiums, Justice Daniel O’Hern suggested in dissent that the Wilson rule should be softened when lawyers show a spark of character that could be nurtured by guidance. In re Downer, 144 N.J. 1. O’Hern, who retired from the court in 2000, had foresight. He voted to give Downer an indefinite suspension and the right to regain his law license if he proved he had cleaned up his act. O’Hern’s suggestion shows that the New Jersey Supreme Court had the power, even without a rule, to hand out indefinite suspensions, but now the option is explicit and the court listed sample conditions it might impose for reinstatement. The list contains conditions that have already been imposed on a case-by-case basis over the years. They include the imposition of financial controls, appointment of a supervising attorney, drug testing, mental health treatment and a passing grade on the state bar exam. “We’re going to have to see how it plays out,” says Anthony Ambrosio, a Bloomfield, N.J., solo practitioner who has represented lawyers facing disbarment. “There are people who should be disbarred because some offenses are so criminal, so egregious,” Ambrosio says. “Defalcation of funds? Forget it.” At the same time, he says, the permanency of disbarment has led to unfair decisions, particularly in cases of reciprocal punishment of lawyers sanctioned in other states. Ambrosio says lawyers disbarred in New Jersey because they were disbarred in New York can be readmitted in New York but not in New Jersey. “I’m extremely in favor of the letter and spirit of the new rule,” Ambrosio says. PUNISHING DECEIT THAT ISN’T THEFT The new rule also may make deliberations easier for the Disciplinary Review Board, the lawyer-layman tribunal that selects the punishments for lawyers who break ethics rules. The New Jersey Supreme Court reviews DRB decisions but rarely alters them. The DRB is usually unanimous, but in a handful of cases each year the members can’t agree on whether to give a lengthy suspension or an irrevocable, career-busting disbarment. A June 24 opinion made public on Friday, In re Friedmann, DRB 02-006, illustrates the point. The board split 7-2 on how to punish Moorestown, N.J., practitioner Gary Friedmann for entering into an illegal loan agreement with a client and making misrepresentations to the client and the Office of Attorney Ethics. They all agreed he engaged in a pattern of deceit; seven members voted for a three-year suspension, and two members agreed with a special master’s recommendation that Friedmann be disbarred. Under the new rule, they would have had a middle option.

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