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There’s a limit to how far the Lawyers’ Fund for Client Protection will go to make clients whole for lawyers’ misfeasance. And that limit is disbarment. The New Jersey Supreme Court has advised the fund that it cannot reimburse clients for money misappropriated after a lawyer is no longer a lawyer. The court’s May 21 directive replied to the fund’s request for interpretation or amendment of court rules pertinent to the case of a lawyer who admitted taking $2.5 million from 31 clients. Dennis O’Brien was disbarred in 1999 but some clients continued to entrust him with their money as an estate guardian or trustee. Under R. 1:28-3(a), the fund may consider claims stemming from misconduct “while the attorney was a practicing member of the Bar of this State.” Fund director Kenneth Bossong asked the court to amend the rule to include “or reasonably perceived as [a practicing lawyer] if recently disbarred,” or to interpret the rule to include those “reasonably perceived” as lawyers. In his Feb. 4 letter, Bossong argued that even after his disbarment, many of O’Brien’s clients perceived him to be a lawyer. He “maintained the fa�ade of a law practice” by continuing to meet clients at his Audubon law office, where his law school diploma hung on the wall. Supreme Court Clerk Stephen Townsend said the court, having sought feedback from the State Bar Association and the Professional Responsibility Rules Committee, declined to amend the rule. The PRRC thought the rule should be expanded but the State Bar disagreed. “The bar cannot forever be responsible for the conduct of bad lawyers,” Executive Director Harold Rubenstein wrote. The State Bar said it consulted county bar associations and the change was opposed by all eight counties responding: Bergen, Camden, Hudson, Hunterdon, Middlesex, Monmouth, Ocean and Sussex. Townsend did say, though, that claims could be considered as to money received before disbarment that the lawyer failed to return afterward. Also to be considered “where the facts warrant” would be claims as to money received both before and after disbarment that is not returned afterward. O’Brien is slated for sentencing on June 25 in Camden County Superior Court on charges of misappropriating entrusted funds. The Fund has paid or agreed to pay six claims totaling $225,551 from former clients, but about a dozen other claims have been on hold pending the court’s decision, says Bossong.

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