A lawyer inexperienced in real estate who was unwittingly swept up in a sale-and-leaseback fraud has been disciplined but spared a suspension.
Though ethics investigators urged the more serious sanction for Evelyn Garcia, the New Jersey Supreme Court followed the Disciplinary Review Board's recommendation for a censure, based on "a theme that permeates the record in this matter — respondent's unvarnished ineptitude and naiveté."
Garcia, an East Brunswick solo and primarily a criminal defense attorney, was introduced by a client to real estate broker George Brunson, "an older gentleman" who "elicited trust" and asked for her help, according to the record.
Garcia had handled only one real estate matter before but agreed to represent buyer Lona Brown in the sale of a Piscataway house. Garcia enlisted the help of an experienced paralegal, Kathy Schaffer, who did not know Brunson.
Garcia didn't understand how real estate transactions worked, and Brunson had set up the deal when she was brought on, Garcia later admitted.
Schaffer allegedly prepared the closing documents, which Garcia signed.
At the August 2004 closing, Garcia failed to make $73,453 in documented disbursements, including $43,603 due to sellers Mike and Stacy Jackson.
In addition, Garcia made $77,764 in undocumented, unapproved disbursements, including four payments totaling $25,764 to Brunson and his wife.
Garcia also obtained a $52,000 bank check issued to her trust account, using one of Brown's personal checks, to demonstrate to the lender that Brown had contributed purchase funds. She later claimed she did this at Brunson's behest.
It turned out that Brown was a straw buyer and, contrary to the statement, did not contribute any money at closing but received $35,000.
The transaction called for the Jacksons to remain in the house and make lease payments to Brown, though Brown had certified to the lender that she would occupy it. Garcia later testified that a sale-and-leaseback arrangement was discussed, but she wasn't sure of the ultimate nature of the agreement.
Two years later, Brunson approached Garcia to represent his wife in buying the house from Brown. The Jacksons had made several lease payments to Brunson, but the mortgage was in arrears.
At closing, Garcia's disbursements again were at odds with the settlement statement: $10,000 to Brown rather than the documented $28,212, and a $28,696 unapproved payment to Brunson.
An attorney for the Jacksons' bankruptcy trustee later filed a malpractice suit and an ethics grievance against Garcia. The Office of Attorney Ethics discovered the inconsistencies and various record-keeping gaffes.
Garcia denied wrongdoing but could not explain why the disbursements didn't match the statements. She said Brunson and Schaffer made those decisions.
The OAE sought a one-year suspension. The District XIII Ethics Committee thought 90 days was sufficient.
But the DRB recommended a censure, noting Garcia did not act knowingly or attempt to conceal her conduct.
Garcia "blindly followed Brunson and Schaffer's instructions" and "abdicated her attorney role," DRB Chairwoman Bonnie Frost wrote.
She "was taken in by Brunson, who was portrayed as a confidence man," Frost said. "Respondent did not seek to conceal a sham transaction. Rather, she had no idea what she was doing" when representing Brown and Brunson's wife.
She was found to have violated Rules of Professional Conduct 1.15(a), failing to safeguard client or escrow funds; 8.4(b), committing a criminal act; 8.4(c), engaging in misrepresentation; and 5.4(c), permitting her legal judgment to be directed by another.
The Supreme Court on Sept. 5 ordered a censure.
Garcia, admitted in 1998, took up law as a second career after 27 years as a Bronx, N.Y., elementary school teacher. She primarily does pool work for the Office of the Public Defender.
Reached by phone, Garcia says she thought the sale-and-leaseback deal "was perfectly legal" but admits she should have spoken with other attorneys and not relied on a paralegal. She says lawyers should go into another practice area only "with your eyes open" and seek training beforehand.
Deputy Ethics Counsel Christina Blunda Kennedy, who prosecuted the matter, could not be reached.