A lawyer convicted of vehicular homicide, who failed to timely complete her probation or pay her fines and was disbarred by consent amid ethics charges, was properly found ineligible for early expungement, a state appeals court ruled on Wednesday.
The Appellate Division agreed with an Essex County judge that Olivia Howard, formerly an East Orange solo, had shown no special circumstances warranting favorable treatment under a 2010 statute that allows shortening the usual 10-year wait for expungement.
“Reviewing Judge [Michael] Ravin’s decision in light of the applicable legal standards, we cannot find that he abused his discretion,” the panel wrote in State v. Howard, A-2114-11.
Howard was convicted in 1989 of causing her husband’s death by automobile. According to court records, the two were arguing while she was in her car and he was alongside. As she drove off, he became lodged between the passenger side door and a fence and was dragged for some distance.
Howard was sentenced to five years of probation and 500 hours of community service and was ordered to pay fines and penalties of $17,500. She paid most of the fines and penalties except for $2,000, which she claims she forgot about. A judgment was entered against her, but she paid it off in 2003.
In 2007, Superior Court Judge Sherry Hutchins-Henderson denied Howard’s expungement request, finding the 10-year wait of N.J.S.A. 2C:52-2 did not begin to run until Jan. 2, 2003, when her conviction was discharged.
In 2010, the Legislature amended the statute to allow courts to expunge after five years in the public interest, considering among other factors the nature of the offense and the defendant’s character and conduct since conviction.
Howard made a renewed application in July 2010 under the amended law, but Ravin in 2011 found the case inappropriate for early expungement in light of Howard’s disciplinary record.
Howard had drawn only a three-month suspension for the death-by-auto conviction, which did not involve malicious intent, but she was disbarred by consent in 2000 after the Office of Attorney Ethics charged her with misappropriating $200,000 in client funds in her trust account in 1995.
Ravin also denied Howard’s motion for reconsideration, finding “incredible” her claims that she forgot about the remaining $2,000 in fines and penalties in the criminal case.
On appeal, Judges Susan Reisner and Jonathan Harris agreed. “Howard did not satisfactorily complete probation for twelve years; nor did she offer a credible reason for failing to pay her fines in a timely manner,” they wrote. “More significantly, she was the subject of a serious charge concerning her ethics as an attorney, after which she voluntarily agreed to disbarment, and the alleged misappropriation of $200,000 is the subject of ongoing litigation.”
Although Howard maintains she surrendered her law license for reasons unrelated to the misappropriation charge, the Lawyers’ Fund for Client Protection paid out $200,000 to the client and then sued Howard for subrogation.
In October 2008, Fund attorney Edward Ehler and Howard’s attorney, Newark solo Alan Dexter Bowman, engaged in settlement negotiations. Ehler told Superior Court Judge Andrew Smithson that Howard had agreed to repay $175,000 at a rate of $25 a month.
The agreement called for Howard to answer an information subpoena, outlining her financial status. When Ehler pushed Bowman to get Howard to comply, Bowman said “she did not desire a settlement and had not authorized [him] to communicate” one had been reached.
Bowman told Smithson that there “must have been some misunderstanding” between himself and Howard, saying he realized later that she was “adamant” about not agreeing to the terms.
Howard felt she was the victim of a ruse, that she wanted to exercise her right to a trial to “clear [her] name and live the rest of [her] life in peace,” and that she had told him he “had no business” telling anyone that she agreed to the settlement because she had never had a chance to review the settlement documents, Bowman said.
When Ehler asked for an order enforcing the settlement, Smithson complied, saying there was no confusion in Bowman’s mind when he told Ehler that Howard had agreed to settle and she apparently had a “change of heart” after agreeing to what amounted to a “simple enough agreement.”
But Appellate Division Judges Amy Piro Chambers and Joseph Yannotti reversed in April 2010, finding “insufficient evidence in the record to rebut Bowman’s assertion that he misunderstood defendant’s views on the settlement and defendant’s unqualified statement that she never authorized Bowman to settle the case.”
The panel remanded the case, which is scheduled to go to trial on Feb. 4.
Bowman did not return a telephone call. Assistant Essex County Prosecutor Gary Thomas, who represented the state in opposing the expungement application, was away from his office and could not be reached for comment.