Opposition Brief — Skevin v. Supreme Court of New Jersey
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Supreme Court, U.S.
x. FILED
No. 86-1334 APR 4 \96F
—IOSEPH F SPANIOL, JR,
CLERK
In The
Supreme Court of the United States
October Term, 1986
ry
=
JOHN M. SKEVIN,
Petitioner,
v.
SUPREME COURT OF NEW JERSEY,
Respondent.
ra’
we
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEW JERSEY
os
RESPONDENT’S BRIEF IN OPPOSITION
rat
VV
W. Cary Epwarps
Attorney General of New Jersey
*James J. Crancia
Assistant Attorney General
CaTHertnE M. Brown
Deputy Attorney General
Richard J. Hughes Justice Complex
CN 112
Trenton, New Jersey 08625
(609) 292-8567
Attorneys for Respondent
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call collect (402) 342-2831
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QUESTIONS PRESENTED
Whether the Court should grant a Petition to review
an order of a State court of last resort disbarring an at-
torney after a plenary hearing and after a factual finding,
based upon circumstantial but virtually undisputed evi-
dence, that the attorney knowingly misappropriated client
trust funds and when
(a) Questions One and Two of the Petition were
not raised below, and when
(b) Question Three of the Petition is without merit.
il
TABLE OF CONTENTS
Page
OPINION BELOW AND RELATED
PROCEDURAL HISTORY ...... 1
JURISDICTION .. 1
STATE CONSTITUTIONAL PROVISION
INVOLVED ; 1
STATEMENT OF THE CASE ww... : 2
REASONS FOR DENYING THE WRIT
The Court is without jurisdiction to consider
Questions One and Two of the Petition and, in
any event, all Questions asserted are without
WOOTEN doc n ates 7
a. The issues raised in Questions One and Two
of the Petition were not raised below and are,
in any event without merit 7
b. The issue raised in Question Three of the
Petition is without merit 17
o 8 5b Ft)! |S |, Sa eeaeenennne Esra Nien Muar n horie shots 21
APPENDIX:
Order of the Supreme Court of New Jersey
Dated December 2, 1986 ee ceessseee App. 1
Order of the Supreme Court of New Jersey
Dated December 16, 1986 App. 2
Order of the Supreme Court of New Jersey
Dated Janeary Te, VOGT oe App. 3
Brief on behalf of the respondent John Skevin
Filed with the Supreme Court of New Jersey in
Matter of Skevin, 104 NJ. 476 (1986) eect App. 4
ii
TABLE OF AUTHORITIES
Page
Casses CrvEp
Air Pollution Variance Board v. Western Alfalfa
Corp., 416 U.S. 861 (1974) a
Barsky v. Board of Regents of N.Y., 347 U.S. 442
(1953) 11
Bell v. Burson, 402 U.S. 535 (1971) 7,9
Bowe v. Scott, 233 U.S. 656 (1914) 9
Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673
(1930) 10
Cardinale v. Louisiana, 394 U.S. 437 (1969) 2... 8
Ex Parte Wall, 107 U.S. 265 (1883) 11
Exxon Corp. v. Gayerton, 462 U.S, 176 (1983) 0. 8
Gannett Co. Inc. v. DePasquale, 443 U.S. 368 (1979) ..... 20
Herb v. Pitcairn, 324 U.S. 117 (1945) 8
In re Gavel, 22 N.J. 248, 125 A.2d 696 (1956) WW... 12
In re Logan, 70 N.J. 222, 358 A.2d 787 526i reh.
71 N.J. 583 (1976) 11
fave Caver, ose U.S. 20 (1948) 19
In re Ruffalo, 390 U.S. 544 (1968) reh. den. 391
U.S. 961 (1968) . 9, 10, 11
In re Ryan, 60 NuJ. 378, 290 A.2d 140 (1972) ecco 12
In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979) .....5, 6, 12, 14
Matter of Noonan, 102 N.J. 1167, 506 A.2d 722 (1986) 5,6
Matter of Skevin, 104 N.J. 476, — A.2d — (1986) .......... 13,4
6, 8, 15, 17, 18
Morissette v. United States, 342 U.S. 246 (1952) .......10, 14
TABLE OF AUTHORITIES—Continued
Page
Mullaney v. Wilbur, 421 U.S. 684 (1975) neccceccecseeessessene 11
Ohralik v. Ohio State Bar Assoc., 436 U.S. 437
COPE Sdiscncchitioees ERT CD ea LEP eS Oe 12, 14
Palmer Oil Corp. v. Amerada Corp., 343 U.S. 390
$5 petal I DAREN bast SUCRE hseeNP OD. baw Pm Nn 8
Pruneyard Shopping Center v. Robins, 447 U.S.
BE vi acdeetrctara tenes BFE Oe A I 10
Randall v. Brigham, 7 Wall. 523, 19 L.ed. 285 (1869) .. 11
Richmond Newspapers, Inc. v. Va., 448 U.S. 555
b __, SESE ete eer abe oe WE rn we RS Poe ow. NaN EE 20
Sandstrom v. Montana, 442 U.S. 510 (1979) nee eeeeeceeseee 11
Schware v. Board of Bar Examiners of New
Mexico, 353 UZ. 233 OS) 7, 9, 14, 16
Sheppard v. Maawell, 384 U.S. 333 (1966) ....9, 17, 19, 20, 21
- Street v. New York, 394 U.S. 576 (1969) een 8
United Mine Workers v. Dist. 12, Illinois Bar
pr ey OP e.g Sokeen sneer ieee 11,12, 14
United States v. United States Gypsum Co.,
BS Fe. ee CTE onic cect ce ieee 11
CoNnSTITUTIONAL Provisions CITED
iad te Ae oe a Be niceties 9
N.J. Const. (1947), Art. VI, § TI, 13 ........... Braet 1,4, 12
STATUTES CITED
BOO GF RE stein iar Vo eae Wome aeveece St fore aw 8
SO AS 1, 7,8
v
TABLE OF AUTHORITIES—-Continued
Page
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POR i RAG EE Baer nt ne nee Mee en PENNE SO Re 5)
MISCELLANEOUS
J. McCormick, Evidence (2d Eid. 1972) ccc. ceccccsssseseeee 16
OPINION BELOW AND RELATED
PROCEDURAL HISTORY
The opinion below is reported at Matter of Skevin,
104 N.J. 476 (1986). (Reprinted at Petitioner’s Appendix
A; hereafter referred to as Pet. App.). Thereafter, a stay
of the disbarment order was sought from the New Jersey
Supreme Court and granted, but only to allow Skevin time
to apply to the Court for a stay. (Resp. App. at 2). An
application to the Court for a stay was granted December
23, 1986 by Justice William J. Brennan, Jr. (App. D at 27).
JURISDICTION
The judgment of the New Jersey State Supreme Court
was entered November 14, 1986. The jurisdiction of the
Court to review a final judgment of a state court of last
resort is invoked pursuant to 28 U.S.C. § 1257(3). The
respondent asserts the Court is without jurisdiction to re-
view the federal questions raised in Questions One and
Two of the Petition, inasmuch as these questions were not
raised below.
©
STATE CONSTITUTIONAL PROVISION
INVOLVED
N.J. Const (1947), Art. VI, § II, 13 provides as fol-
lows:
The Supreme Court shall make rules governing the
administration of all courts in the State and, subject
l
to the law, the practice and procedure in all such
courts. The Supreme Court shall have jurisdiction
over the admission to the practice of law and the
discipline of persons admitted.
°
STATEMENT OF THE CASE
Petitioner John Skevin was admitted to the New Jer-
sey Bar in 1956. He was disbarred by order of the re-
spondent, the Supreme Court of New Jersey, on November
14, 1986 because he knowingly misappropriated client trust
funds. (Pet. App. B at 17).
Skevin was a single practitioner, with at times one or
two associates, who had been active in state politics. In
1984, a nine-count, amended disciplinary complaint was
filed against Skevin. The amended complaint charged
numerous disciplinary infractions, including inappropriate
advancement of settlement funds, Matter of Skevin, 104
NJ. 476, 480, 481 (1986) (Pet. App. A at 4,6); loaning
monies to a client, td. at 481 (Pet. App. A at 6); failing to
obtain fee agreements; failing to advise of alternative fees,
and misealeulating contingent fees, /d. at 481 (Pet. App. A
at 6). The amended complaint also charged instances of
overdrafts of Skevin’s business, personal and trust ac
counts. Jd. (Pet. App. A at §).
Some of these charges were dismissed and none were
of such a nature to warrant disbarment. Jd. at 478-81
(Pet. App A at 1-6). Three counts of the amended com-
plaint, however, charged knowing misappropriation of
client trust funds.
The facts relating to these three counts, which were
for the most part stipulated to by the parties, were that
Skevin was out-of-trust for substantial periods of time be-
tween 1982 and 1983. In one six month interval, for ex-
ample, Skevin was out-of-trust the entire period, and for
sizeable sums: in June, 1982, $12,469.99; in July, 1982,
$70,267.31; in August, 1982, $72,252.18; in September, 1982,
$65,618.20; in October, 1982, $92,552.27; in November, 1982,
$114,704.29, and in December, 1982, $133,476.40. Id. at 483
(Pet. App. A at 8).
The shortfall in Skevin’s trust account was not im-
mediately apparent because Skevin regularly commingled
personal monies with trust funds. He claimed, for ex-
ample, that during 1982-1983 he deposited an aggregate
of nearly $1 million dollars of personal monies into his
trust account. Id. at 485 (Pet. App. A at 8). Skevin, how-
ever, kept no contemporaneous records that would indicate
the amount of personal funds in the trust account. Jd. at
402-03 (Pet. App. A at 7-8). The evidence also revealed
that Skevin withdrew monies from his trust account as re-
imbursement for his fees and costs well in advance of his
receipt of settlement funds. /d. at 479-80 (Pet. App. A at
4). On several occasions, he disbursed money to one client,
John Schrader, prior to his receipt of settlement funds.
Id. at 479-80 (Pet. App. A at 4). While all these facts
were virtually undisputed, Skevin denied, and continues
to deny, that he knowingly misappropriated trust funds.
Since 1948, the Supreme Court of New Jersey has
been vested with the exclusive power to regulate the ad-
mission, conduct and disbarment of -attorneys licensed to
practice law in the State. N.J. Const., (1947), Art. VI,
§ II, 3. Pursuant to this power, the Supreme Court has
enacted a comprehensive scheme regulating the conduct
of all practicing attorneys. As part of this scheme the
Rules of Professional Conduct of the American Bar As-
sociation, as supplemented by the Supreme Court, have
been incorporated into the court rules. N.J. Ct. R. 1:14.
These Rules require, inter alia, the segregation of client
monies and an attorney’s own funds. N.J. Ct. R. 1:14,
Appendix I at RPC 1.15(a).!
The Supreme Court has also imposed very specific
rules regarding the maintenance of trust accounts. Any
such account must be clearly marked~as a trust account
-and be maintained in a financial institution in New Jer-
sey authorized by the Supreme Court to hold trust funds.
A balance sheet listing every trust account deposit and
withdrawal must be maintained, separate from other at-
torney accounts. N.J. Ct. R. 1:21-6(b)(1); NA. Ct. R.
1:21-6(a). In addition, for every client for whom funds
are escrowed, the attorney must maintain a separate led-
1For the sake of convenience, all citations to the Supreme
Court’s regulatory scheme are to the court rules currently in
force. These rules include amendments made after the time-
period at issue in the instant action. No significant change has
been made in the substance of the rules pertinent to this mat-
ter, however. See In the Matter of Skevin, supra, 104 N.J. at
482 (Pet. App. A at 7).
ger detailing every financial transaction made on the
client’s behalf. N.J. Ct. R. 1:21-6(b)(2). A ‘‘regular trial
balance of the individv«l client trust ledgers shall be main-
tained.’’ Id. An attornev’s trust account records must
be made available for inspection upon demand by the Of-
fice of Attorney Ethics, the disciplinary investigation and
prosecutorial arm of the Court. N.J. Ct. R. 1:21-6(ce);
N.J. Ct. R. 1:20-2.
The regulations promulgated by the Court regarding
the maintenance of attorney trust accounts are stringent.
Properly adhered to, however, they insure that an attorney
is aware at all times of the aggregate sum of money in his
trust account as well as the current balance of the monies
held in trust on behalf of each client. The rigor of these
regulations is warranted because the Court, in 1979, put
the Bar on notice that the sanction for knowing misap-
propriation of client funds would ‘‘almost invariab[ly]’’ be
disbarment. In re Wilson, 81 N.J. 451, 453, 409 A.2d 1153, ©
1154 (1979). Thereafter, the Court ruled that some sanc-
tion short of disbarment was appropriate whenever an
attorney’s misappropriation of his client’s funds was not
knowing, but was, rather, the product of inadvertent error
or neglect. Matter of Noonan, 102 N.J. 1167, 506 A.2d
722 (1986).
Because Skevin denied that he knowingly misap-
propriated client funds, the key question before the Su-
preme Court was whether his conduct, which resulted in a
six-month trust account shortage that at times exceeded
$100,000, coupled with the comingling of approximately one
million dollars of personal funds and the failure to main-
6
6
tain contemporaneous trust account records, evidenced
knowing misappropriation of client funds, for which the
sanction of disbarment would be warranted, see In re Wil-
son, supra, or evidenced inadvertent error or neglect, for
which some sanction other than disbarment migbt be suit-
able. _See Matter of Noonan, supra. Matter of Skevin, su-
pra, 104 N.J. at 484 (Pet. App. A at 10). After a plenary
fact-finding hearing conducted by a Special Master, after
a report and recommendation by a state-wide disciplinary
board, and after respondent’s own review of the record, the
Supreme Court found that Skevin’s conduct was the result
of knowing misappropriation of funds and ordered his dis-
barment. Jd. at 477 (Pet. App. A at 1). No petition for re-
hearing was sought. By order of December 2, 1986, how-
ever, disbarment was delayed until December 16, 1986.
(Resp. App. 1). On December 16, 1986, Skevin sought a stay
of the Order from the New Jersey Supreme Court to allow
him time to make an application to this Court for a stay,
prior to filing a Petition for Certiorari. His application
was granted and a stay of the Order was entered until
December 19, 1986. (Resp. App. 2). On December 23,
1986, Justice William J. Brennan, Jr., granted Skevin’s ap-
“plication for a stay pending disposition of this Petition.
(Pet. App. D at 27).
Skevin raises two separate federal constitutional
claims in support of his petition. The first is a substantive
due process claim that he may not be disbarred on the basis
of cireumstantial evidence offered to prove state of mind
and absent an inquiry into his ‘‘current character and fit-
ness to practice law’’ (Petition at Questions One and Two).
The next is a procedural due process claim that his dis-
barment proceedings were fatally infected by prejudicial
7
pretrial publicity. The respondent contends the Petition
should be denied because it raises federal questions which
were not presented below and which are, in any event,
meritless.
REASONS FOR DENYING THE WRIT
THE COURT IS WITHOUT JURISDICTION
TO CONSIDER QUESTIONS ONE AND TWO
OF THE PETITION AND, IN ANY EVENT,
ALL THE QUESTIONS ASSERTED ARE
WITHOUT MERIT.
A. The Issues Raised In Questions One and Two
of the Petition Were Not Raised Below and
Are In Any Event Without Merit.
Skevin claims a substantive due process right not to be
disbarred absent a showing that he is, at the time the sanc-
tion is imposed, morally and professionally unfit to practice
law. He cites as the source of this federal constitutional —
right Schware v. Board of Bar Examiners of New Mexico,
353 U.S. 232 (1957) and Bell v. Burson, 402 U.S. 535 (1971).
He also claims, erroneously, that the respondent conclu-
sively presumes knowing misappropriation of client funds
from evidence of actual misappropriation, in violation of
his federal due process rights. See Petition Questions
One and Two; Pet. Brief at 12-17. Neither of these federal
claims was presented to the New Jersey Supreme Court
and, hence, the Court lacks jurisdiction to consider them
now.
a state court of last resort by Petition for Ccrtiorari only
28 U.S.C. § 1257 permits review of the judgment of
when a federal question has been raised in the state court
8
proceeding. 28 U.S.C. § 1257(3). Cardinale v. Louisiana,
394 U.S. 487, 489 (1969). The federal question asserted,
moreover, must be ‘‘substantial.’? Palmer Oil Corp. v.
Amerada Corp., 343 U.S. 390 (1952).
The New Jersey Supreme Court did not expressly
consider or resolve any federal constitutional questions in
its decision to disbar John Skevin. Matter of Skevin, su-
pra, 104 N.J. 476. (Pet. App. A). In such an instance, the
petitioner has the burden of demonstrating to the Court,
by certificate from the state supreme court, Herb v. Pit-
cairn, 324 U.S. 117, 128 (1945), or by specific reference to
the record or otherwise, &. 21.1(h), that the federal claim
was actually drawn into question below. Exxon Corp. v.
Gayerton, 462 U.S. 176, 181 n. 3 (1983). Where, as here,
the state court has failed to comment on the purportedly
raised federal claim, ‘‘it will be assumed that the omission
was due to want of proper presentation in the state courts,
unless the aggrieved party in this Court can affirmatively
show the contrary.’’ Street v. New York, 394 U.S. 576,
582 (1969).
Skevin attempts to meet his burden by pointing out
that on three different pages of the 62-page brief he submit-
ted below he capsulized the argument he now makes to the
Court in support of Questions One and Two of his Petition.
He also asserts that at one point of his argument below
he specifically referred to ‘‘due process.’’ (Pet. Brief at 20
referring to Resp. App. at 36, 37 and 42).
The brief Skevin submitted below is set forth in full in
Respondent’s Appendix at 4-58. A review of the Table of
Citations reveals that not a single case relied upon by
SkKevin now in support of his substantive claim, namely,
Schware, supra, or Bell v. Burson, supra, was cited to the
New Jersey Supreme Court. (Resp. App. at 6-8). In-
deed, only three of the forty cases cited to the New Jersey
Supreme Court are from any federal court at all, and
only two of those, In re Ruffalo, 390 U.S. 544 (1968) reh.
den. 391 U.S. 961 (1968) and Sheppard v. Maxwell, 384
U.S. 333 (1966) are decisions of the Court. (Resp. App.
6-8). Further, the reference to ‘‘due process’’ at page 42
of the brief is unaccompanied by any specific reference to
the Due Process Clause of the Fourteenth Amendment.
(Resp. App. at 42) (See also Table of Citations, Resp.
App. at 6-8:- no citation to any federal constitutional pro-
vision). :
The Court has long assumed that non-specific refer-
ences in legal argument to ‘‘due process”’ are references
to state constitutional law in those states which have a
due process provision in their state constitutions. Bowe
v. Scott, 233 U.S. 656, 664-65 (1914); Air Pollution Vari-
ance Board v. Western Alfalfa Corp., 416 U.S. 861, 865-
66 (1974). New Jersey has a due process provision in its
constitution. N.J. Const. (1947) Art. I, 1. Thus, Skevin
has not met his burden of proving that the federal con-
stitutional questions raised in Questions One and Two of
his Petition were raised below.
Skevin contends, however, that he notified the New
Jersey Supreme Court of the federal constitutional claims
he now raises in his Petition one month after the disbar-
ment order was issued, on December 16, 1986, when he
applied to the Supreme Court for a stay of the disbarment
order pending consideration of his Petition for Certiorari.
He notes that attached to his application for a stay was a
10
‘‘near-final draft’’ of his application to Justice William
J. Brennan, Jr., for a stay and that this draft raised all
his federal claims. (Pet. Brief at 21). Raising a federal
question after final judgment by the state court of last
resort, however, is timely only when the state court’s de-
cision is unexpected, and the petitioner could not reason-
ably have anticipated the federal question. Pruneyard
Shopping Center v. Robins, 447 U.S. 74, 85-86 n. 9 (1980) ;
Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673, 677-78
(1930). Here Skevin knew from the outset that the key
question in his case was whether the evidence presented
proved his knowing misappropration of funds for which
disbarment was the likely sanction. In re Wilson, supra,
81 N.J. 451. Thus, it is submitted, Skevin has failed to
demonstrate to the Court that he properly raised the
federal question presented in Questions One and Two of
the Petition. It is submitted, therefore, that certiorari
to consider Questions One and Two should be denied.
In any event, the federal claims asserted in Questions
One and Two of the Petition are without merit and do
not warrant this Court’s review. Skevin’s argument is
that an attorney disbarment proceeding is.tantamount to
being charged with a crime, citing In re Ruffalo, 390 U.S.
544 (1968) (attorney disbarment proceeding quasi-crim-
inal in nature) and that thus, as a matter of federal due
process applicable to the states by the Fourteenth Amend-
ment, an essential element of the offense of knowing mis-
appropriation of trust funds must be a specific intent to
misappropriate for an illegal purpose, citing Morissette v.
United States, 342 U.S. 246 (1952). Skevin further con-
tends, erroneously, that the Supreme Court of New Jersey
PRitise0 ie. sittin
1i
conclusively presumes the element of ‘‘knowing’’ misap-
propriation funds from evidence of actual misappropria-
tion of funds in contravention of Sandstrom v. Montana,
442 U.S. 510 (1979) (presumption which operates to shift
burden of persuasion to defendant of an element of the
offense charged in a criminal case violative of due process).
See also United States v. United States Gypsum Co., 438
UWS. 422 (1978); Mullaney v. Wilbur, 421 U.S. 684 (1975).
(See Pet. Brief at 14-17).
Attorney disbarment proceedings have at various
times been characterized as quasi-criminal in nature, In
re Ruffalo, supra; civil in nature, Randall v. Brigham,
7 Wall. 523, 19 L.Ed. 285 (1869); Ex Parte Wall, 107 U.S.
265 (1883) or sui generis, In re Logan, 70 N.J. 222, 358
A.2d 787 (1976) reh. 71 N.J. 583, 367 A.2d 419. From the
standpoint of federal constitutional analysis, however, the
difference between these characterizations is one of se-
mantics only; whether a disbarment proceeding is viewed
as quasi-criminal in nature, Ruffalo, supra, or as a civil
proceeding involving the loss of a federally protected
property right in the license to practice a regulated pro-
fession, Barsky v. Board of Regents of N.Y., 347 U.S. 442
(1953) (revocation of medical license), the substantive due
process analysis is the same: is the state regulation au-
thorizing disbarment rationally related to a legitimate
state objective, United Mine Workers v. Dist. 12, Illinois
Bar Assoc., 389 U.S. 217, 222 (1967).
The regulation of the legal profession has long been
deemed by the Court to be a matter of special state re-
12
sponsibility. The Court has stated that state restrictions
on the practice of law are constitutional as long as they
bear a rational connection to this concededly legitimate
state goal. Ohralik v. Ohio State Bar Assoc., 486 U.S.
437, 488-89 (1978), United Mine Workers v. District 12,
Illinois State Bar Assoc., 389 U.S. 217, 222 (1967).
In New Jersey, all power to regulate the legal profes-
sion is vested in its Supreme Court. N.J. Const. (1947)
Art. VI, § II, 13. In 1979, the Court adopted a policy that
the sanction for knowing misappropriation of funds would
‘‘almost invariab[ly]’’ lead to disbarment. In re Wilson,
supra, 81 N.J. 451, 453, 409 A.2d 1153, 1154 (1979). The
practice of ordering disbarment as a sanction for know-
ing misappropriation of funds was not new in this State.
See In re Ryan, 60 N.J. 378, 290 A.2d 140 (1972); In re
Gavel, 22 N.J. 248, 125 A.2d 696 (1956). The significance
of Wilson was that for the first time the Court determined
as a matter of policy that the general imposition of the
sanction of disbarment for knowing misappropriation of
trust funds was the only effective means to preserve the
‘‘confidence of the public in the integrity and trustworthi-
ness of lawyers in general’’ the policy goal the “ew Jer-
sey Supreme Court identified as ‘‘the principal reason
for [attorney] discipline.’’ In re Wilson, supra, 81 N.J.
at 456, 409 A.2d at 1155.
In adopting this policy the Court carefully examined
the mitigating circumstances frequently asserted in mis-
appropriation cases as justification for imposing some
sanction short of disbarment. These are, primarily, that
the attorney has made restitution; that the attorney has
corrected the bookkeeping practices that contributed to the
sho baa ay
NOs i pi Ag Ho
13
misappropriation, and the experience, or lack thereof, of
the lawyer.
As to restitution, the Court found this ‘‘honesty of
compulsion,’’ id. at 457, 409 A.2d at 1156, wanting as a
justification for imposing a sanction less than disbarment
for one who knowingly misappropriates trust funds:
Judicial consideration of restitution as a miti-
gating factor in disciplinary proceedings creates the
impression that sanctions are proportioned in accord-
ance with ability to pay, rather than gauged against
the seriousness of the misconduct. Furthermore, ac-
cording significance to restitution leads to an obvious
and substantial possibility of unjust discrimination
[against those who ean not afford to make restitu-
tion]. [Jd. at 459, 409 A.2d at 1156-57. See generally,
id. at 457-459, 409 A.2d at 1156-57].
The Supreme Court likewise found assertions that
the attorney had reformed sloppy bookkeeping practices,
or was otherwise a highly qualified and experienced law-
yer, did not outweigh the considerations which favored a
policy of disbarment for knowing misappropriation
of client funds. Reform of sloppy bookkeeping prac-
tices was, in the Court’s opinion, ‘‘the least that one
would expect.. Its only significance is that it would be
doubly unthinkable to permit resumption of practice by
an offending attorney who remained unwilling or unable
to set up proper books and records.’’ Id. at 459, 409 A.2d
at 1157. The Court further found the experience and prior
outstanding career of a lawyer to be ‘‘less important...
where misappropriation is involved. The offense against
common honesty should be clear even to the youngest; and
to distinguished practitioners, its grievousness should be
even clearer.’’ Id. at 460, 409 A.2d at 1157 (footnote omit-
ted).
14
Thus, the New Jersey Supreme Court adopted a policy
of ‘‘almost invariable’’ disbarment as a sanction for know-
ing misappropriation of client funds in order to further its
stated aim of preserving the public trust in the legal profes-
sion. Id. at 453, 409 A.2d at 1154. Preserving the public
trust in the legal profession is a legitimate exercise of po-
lice power. Oralik, supra; United Mine Workers, supra, and
the New Jersey Supreme Court’s virtual disbarment pol-
icy is certainly a rational means to achieve this goal.
And because the virtual disbarment policy for knowing mis-
appropriation of trust funds is a rationally related means
to effectuate a legitimate policy goal, the failure of the
New Jersey Supreme Court to require proof of a specifi_
illegal purpose as an element of the charge of knowing mis-
appropriation does not violate the Due Process Clause of
the Fourteenth Amendment. Further, Morissette v. United
States, supra, 342 U.S, 246, relied upon by Skevin in sup-
port of this argument does not support his proposition.
Morissette simply stands for the propesition that one can-
not, as a matter of federal due process, be sanctioned for
criminal conduct absent a proof beyond a reasonable doubt
of a specific culpable intent and that such specific intent
should be construed in a federal penal statute which fails
to so expressly state. Jd. Morissette expressly stated, more-
over, that due process does not require proof of specific
illegal intent as an element of non-criminal, public wel-
fare regulations. Morissette v. United States, supra, 342
U.S. at 254-60.
The application of the Wilson rule to Skevin’s case
is not arbitrary; it is amply supported by the evidence.
Schware v. Board of Bar Examiners of New Mexico, supra,
353 U.S. 232. The evidence before the New Jersey Su-
A
we = bacon it en cna tall. lta it i Biennale Pe os, «
ee vee ae
ceaneeaeinahetiaad eet teeta eh eddie ee ee ee
15
preme Court was that Skevin was substantially out-of-
trust for much of 1982-1983; that Skevin commingled near-
ly $1 million dollars of his personal funds with trust
monies during this period and that Skevin kept no contem-
poraneous financial records. While these facts were un-
disputed, Skevin denied that he knowingly misappropri-
ated funds. Notwithstanding Skevin’s denial, the Court
concluded the evidence clearly and convincingly established
that Skevin knew he misappropriated funds and ordered
his disbarment. Matter of Skevin, supra, 104 N.J. 476
(Pet. App. A).
Skevin would like the Court to believe that the New
Jersey Supreme Court did not engage in any fact finding
on the question of whether Skevin knew he misappropri-
ated funds, but, rather, conclusively presumed Skevin
knew he misappropriated trust funds simply from evidence
of actual misappropriation of trust monies. This is not
correct. “Evidence of ‘‘knowing’’ is an element of the dis-
ciplinary infraction of knowing misappropriation. This
element must be proved by clear and convincing evidence.
Id. at 476 (Pet. App. A at 1). The Supreme Court itself
expressly stated that the key question in Skevin’s case was
whether he knowingly misappropriated funds, which would
result in disbarment, or whether the misappropriation was
due to inadvertence, which would result in a sanctien short
of permanent disbarment. 7d. at 484 (Pet. App. A at 10).
At bottom, Skevin is aggrieved because the New Jersey
Supreme Court found he misappropriated funds despite
his express denial that he knowingly misappropriated cli-
ent funds. What Skevin is really arguing to the Court
is that he may not be disbarred, as a matter of federal con-
16
stitutional law, absent direct evidence of ‘‘knowing’’ mis-
appropriation.? It is true that in this case Skevin’s state
of mind was proved by circumstantial evidence, but it is
well settled that circumstantial evidence is a perfectly ac-
ceptable method with which to prove intent in both criminal
as well as civil evidentiary proceedings. See generally
F.R.Evid. 401; J. MeCormick, Evidence, 435-36 (2d Ed.
1972).
Skevin also suggests that as a matter of federal con-
stitutional law the requisite criteria for disbarment is
‘‘eurrent moral and professional fitness to practice law,’’
relying on Schware v. Board of Bar Examiners of New
Mexico, supra, 353 U.S. 232 (1957). (Pet. Brief at 13).
Schware does not suppoft this proposition. It simply
holds that a decision to deny admission to a bar applicant
on the grounds of moral unfitness must as a matter of
federal due process be supported by evidence in the rec-
ord. As discussed, supra, the evidence in this case amply
supports a finding that Skevin knowingly misappropri-
ated funds. In any event, if knowing misappropriation
of funds to the degree engaged in by Skevin is not in-
dicia of moral and prefessional unfitness to practice law,
respondent does not know what is.’
2Such a standard, of course, would permit a finding of
“knowing” misappropriation only in those rare cases in which
the attorney actually admitted his misconduct.
3Skevin contends that there have been no instances of mis-
appropriation after the filing of the amended disciplinary com-
plaint and that, therefore, he may not be disbarred. Certainly,
the proper handling of trust monies after a discipiinary com-
plaint had been filed does not tend to show whether or not
(Continued on following page)
eS. TT
17
For all the foregoing reasons, accordingly, the Court
should not grant certiorari to review Questions One and
Two of the Petition.
-B. The Issue Raised in Question Three of the
Petition is Without Merit.
Citing Sheppard v. Maxwell, 384 U.S. 333 (1966),
Skevin contends the Supreme Court of New Jersey dis-
barred him because it was improperly influenced by pre-
trial publicity, in violation of his federal procedural due
process rights. A disciplinary proceeding in New Jersey
is normally a three-tiered process. An ethies grievance
is initially filed with a District Ethics Committee, a local
board which conducts a preliminary investigation and rec-
ommends what type of further action, if any, need be taken.
N.J. Ct. R. 1:20-3. If the Committee determines that un-
ethical conduct oceurred for which a private reprimand
is an inappropriate sanction, a formal complaint is filed.
N.J. Ct. R. 1:20-3(f), (h).4 A plenary hearing is con-
(Continued from previous page)
an attorney knowingly misappropriated funds before the filing
of the complaint. In any event, Skevin’s improved conduct was
only because the Supreme Court required Skevin, pendente lite,
to practice under the guidance of a proctor who was required
to co-sign all checks. Matter of Skevin, supra, 104 N.J. at 482-
483; (Pet. App. A at 8-9; Resp. App. at 3). This requirement is
still in force. (Resp. App. at 3). It is not at all clear, furthermore,
that Skevin would have been able to avoid misappropriation of
trust funds without the proctorship; one proctor advised the Su-
preme Court of an instance in which he had discouraged Skevin
from borrowing money from a client for whom he had just ob-
tained a judgment. (Pet. App. E at 30, {| 8). Obviously, Skevin
continues to exercise poor judgment when it comes to financial
matters involving his clients.
4in Skevin’s case, the function of the District Committee was
performed, at the direction of the Supreme Court, by a special
master, who was a retired trial judge. Matter of Skevin, supra,
140 NJ. at 483 (Pet. App. A at 9).
18
ducted and the Committee makes a factual finding and ree-
ommendation to the Disciplinary Review Board, a state-
wide committee which makes a de novo review of the ree-
ord and determines whether to adopt, modify or reverse
the findings of the Committee. N.J. Ct. R. 1:20-4. The
matter is then referred to the Supreme Court for review
and decision. N.J. Ct. R. 1:20-5.
Proceedings before the District Committee (or in
Skevin’s case, the Special Master), and the Disciplinary
Review Board are confidential, N.J. Ct. R. 1:20-10(a).
However, once a matter is scheduled by the Supreme
Court for oral argument for final discipline, ‘‘the ree-
ommendation of the [Disciplinary Review] Board that is
the subject thereof, together with any briefs filed pur-
suant to an order of the Court, shall be made public... .’’
N.J. Ct. R. 1:20-10(a)(1) (emphasis added). Grievants
and witnesses are absolutely immune from a civil suit as
long as they do not breach the confidentiality of the dis-
ciplinary process. N.J. Ct. R. 1:20-11(b).
Prior to the filing of the amended disciplinary com-
plaint, Skevin had been active in state politics and had
served, until 1981, two terms as a state senator. He was
a publie figure who, at the time of disciplinary hearing,
continued to attract public attention.
The first news articles about the disciplinary pro-
ceedings against Skevin occurred in June, 1984, after oral
argument to the Supreme Court on a motion to suspend
Skevin from practice pendente lite. (Pet. App. F at 32).°
5This motion was denied. /n re Skevin, 104 N.J. at 483 (Pet.
App. A at 9).
19
As Skevin acknowledges, all disciplinary matters pre-
sented to the Supreme Court are conducted in open court,
so that the publicity generated by this motion was not a
breach of the confidentiality rules of the Court. (Pet.
Brief at 7). Two months later, two complainants, John
and Joseph Schraeder, breached the confidentiality of
the disciplinary process on two separate occasions by mak-
ing information available, inter alia, to a reporter for the
New York Times. This occurred after the evidentiary
hearing was conducted before the Special Master. (Pet.
App. F at 33). The Special Master’s report was completed
the following spring. This report was also leaked to a
reporter who wrote an article about it.6 Thereafter, when
the Disciplinary Review Board referred the matter to
the Supreme Court and final argument was scheduled, the
report of the Board was made public, as is permitted by
the court rules. N.J. Ct. R. 1:20-10(a)(1). The Board’s
recommendation, which occurred at the time that the Su-
preme Court decided several other disbarment matters,
generated attention. (Pet. App. E at 36-40).
Skevin contends this publicity, which occurred over
a two year period, was so prejudicial that it prevented
the Supreme Court from making an impartial determina-
tion of his case and hence violated his federal procedural
due process rights, citing Sheppard v. Maxwell, 384 U.S.
333 (1966). This is not so.
Even in the eriminal context, the Due Process Clause
safeguards the right to public pretrial and trial proceed-
ings. In re Oliver, 333 U.S. 257 (1948) (criminal defendant
6Skevin does not include this article in his appendix.
| ccs
has Sixth Amendment right to public trial); Richmond
Newspapers, Inc. v. Va., 448 U.S, 555 (1980) (publie has
First and Fourteenth Amendment right of access to crim-
inal trial); Gannett Co. Inc. v. DePasquale, 443 U.S. 368
(1979) (public has First and Fourteenth Amendment right
of access to pretrial criminal proceedings). From the
standpoint of federal due process, a closed legal proceed-
ing is the exception, not the rule.
Thus, if Skevin had been charged with a crime in-
stead of u disciplinary infraction, the Due Process Clause
would require that the proceedings in his case be open.
Sheppard only holds that when publicity is of such a nature
and degree that it threatens the impartiality of the lay
factfinder (7.e., jury), a criminal defendant’s constitu-
tional right to a fair trial overrides the public’s consti-
tutional right of access. Sheppard v. Maxwell, 384 U.S.
333 (1966) (defendant entitled to new trial when publicity
of a sensational nature while jury trial was ongoing and
when presence of media in courtroom so pervasive that
it disrupted courtroom proceedings).
Skevin refers the Court to two news articles (Pet.
App. F at 33-35) and mentions a third article, which were
all written as a result of information improperly leaked
to the media, as being unduly prejudicial.’?_ These articles
appeared well before the Supreme Court heard and de-
7The source of two of these leaks were two complainants
John and Joseph Schraeder. (Pet. App. F at 33-35). Skevin
wants the Court to believe the Office of Attorney Ethics, the
enforcement arm of the Court in disciplinary matters, was re-
sponsible for the third leak. (Pet. Brief at 8-9). This is not so.
All parties had access to the Special Master’s report which was
eee to the press. The source of the leak remains undeter-
mined.
[Pukin
21
cided Skevin’s case. Even assuming arguendo that Shep-
pard was applicable in a non-criminal context, these
three articles are hardly of a nature to trigger Shep-
pard. Further, Skevin’s suggestion that the members
of the Supreme Court of New Jersey would not be
able to maintain their objectivity and impartiality under
such circumstances is specious. For all these reasons,
accordingly, the Court should not grant certiorari to re-
view Question Three of the petition.
°
CONCLUSION
For the foregong reasons, Court should not grant
Skevin’s Petition for certiorari.
Respectfully submitted,
W. Cary Epwarps
Attorney General of New Jersey
*James J. Crancta
Assistant Attorney General
CaTHerINE M. Brown
Deputy Attorney General
Richard J. Hughes Justice Complex
CN 112
Trenton, New Jersey 08625
(609) 292-8567
Attorneys for Respondent
*Counsel of Record
App. 1
APPENDIX
SUPREME COURT OF NEW JERSEY
D-2 September Term 1986
IN THE MATTER OF
JOHN M. SKEVIN, ORDER
An Attorney at Law.
This matter having come before the Court on the ap-
plication of JOHN M. SKEVIN, seeking a modification of
the Order of this Court entered November 14, 1986, and
the Court having reviewed the arguments of the parties,
and good cause appearing ;
It is ORDERED that respondent’s disbarment shall
take effect Tuesday, December 16, 1986; and it is further
ORDERED that Leon J. Sokol, Esquire, shall serve
as proctor of the respondent until the Order of disbarment
takes effect, and that as a part of his duties, to be exer-
cised in accordance with Administrative Guideline # 28,
said Leon J. Sokol, Esquire, shall oversee all financial —
transactions of respondent, including the cosigning of all
checks, deposits, and withdrawals made during the period
provided for by this Order.
WITNESS, the Honorable Robert L. Chfford, Pre-
siding Justice, at Trenton, this 2nd day of December, 1986.
| hereby certify that the foregoing
isa true copy of the original on file
in my office.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
OF NEW JERSEY
App. 2
SUPREME COURT OF NEW JERSEY
D-2 September Term 1986
IN THE MATTER OF
JOHN M. SKEVIN, ORDER
An Attorney at Law. ;
This matter having been duly presented to the Court
on respondent’s application for a stay of his disbarment
pending an application for relief to the Supreme Court of
the United States ;
It is ORDERED that the disbarment of JOHN M.
SKEVIN of Hackensack is hereby stayed through Decem-
ber 19, 1986, provided that an application for emergent
relief is submitted to a single Justice of the Supreme
Court of the United States before 5:00 p.m., December 17,
1986; and it is further
ORDERED that unless relief is granted by the Su-
preme Court, the stay provided for by this Order shall ter-
minate at 5:00 p.m. on December 19, 1986, or upon the
entry of an Order by a single Justice denying relief, which-
ever may occur first.
WITNESS, the Honorable Robert L. Clifford, Pre-
siding Justice, at Trenton, this 16th day of December, 1986.
/s/ Stephen W. Townsend
Clerk
App. 3
SUPREME COURT OF NEW JERSEY
D-2 September Term 1986
IN THE MATTER OF
JOHN M. SKEVIN, ORDER
An Attorney at Law.
This matter having been duly considered by the Court,
and good cause appearing ;
It is ORDERED that pending the resolution of the
petition for a writ of certiorari now before the Supreme
Court of the United States and until the further Order of
this Court, Leon J. Sokol, Esquire, shall continue to serve
as proctor to respondent pursuant to Administrative
Guideline No. 28.
WITNESS, the Honorable Robert L. Clifford, Pre-
siding Justice, at Trenton, this 28th day of January, 1987.
/s/ Stephen W. Townsend
Clerk of the Supreme Court
I hereby certify that the foregoing
is a true copy of the original on file
in my office.
/s/ Stephen W. Townsend
Clerk of the Supreme Court of New Jersey
App. 4
SUPREME COURT OF
THE STATE OF NEW JERSEY
Docket No. D-14
In the Matter of
Previously Before
JOHN M. SKEVIN Disciplinary Review Board
ATTORNEY AT LAW (Decision Rendered
May 23, 1986)
BRIEF ON BEHALF OF
RESPONDENT, JOHN M. SKEVIN, ESQ.
LEON J. SOKOL, ESQ.
Greenstone and Sokol, Esqs.
39 Hudson Street
Hackensack, New Jersey 07601
(201) 488-3930
Attorneys for Respondent
MICHAEL C. URCIUOLI, ESQ.
and
FRANK A. CAMPANA, ESQ.
On the Brief
nit
App. 5
TABLE OF CONTENTS
ee te
Preliminary Statement 2.0.0.0... ccc
Statement of the Case 000.
Argument:
L.
A.
C.
IL.
A.
B.
DISBARMENT IS NOT AN APPROPRI-
ATE REMEDY IN THE CASE AT BAR .....
The Wilson standard of knowing misappro-
priation has not been met by clear and con-
VINCIN CVIGEOMCE ee eecseeceeneseeneen
All doubts must be resolved in favor of the
IS isieisiscc cella aseoteienia oie nniaonaaechiin
Disbarment is not the proper penalty in the
case at bar, and mitigating factors should per-
mit Respondent to continue to practice ................
THE VIOLATIONS OF THE CONFIDEN-
TIALITY RULE ARE VIOLATIONS OF
MR. SKEVIN’S RIGHT YO DUE PRO-
CESS AND SUCH A BLATANT AFFRONT
TO THE INTEGRITY OF THE COURT,
THAT THIS CASE SHOULD BE DIS-
MISSED OR ANY PENALTY IMPOSED
MITIGATED .........
Mr. Skevin’s right to privacy was violated...
Mr. Skevin’s right to a fair hearing and de-
termination has been prejudiced ccc.
ey
34
34
45
* Page references are to the typewritten brief submitted
below and not as printed herein.
App. 6
TABLE OF CITATIONS
PAGE
NO.
TABLE OF CASES
Tn ve Apmdt, G7 NJ. 432 (1975) ccc ccs csecesseee <ssdde, D4
Bechler v. Parsekian, 36 N.J. 242 (1961) 0 D4
In Re Boardwalk Regency Casino License Application,
180 N.J. Super. 324 (App. Div. 1981), modified, 90
ec Ee ET sncnniribiaicsiacinsatsnaseniiininendabaecritilin I Maser Se nn 36, 37
Brogan Cadillac, etc. v. Central Jersey Bank & Trust,
183 N.J. Super. 333 (1981) . Sa
Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Rep. 107
CR UEED ccnitens Sa a 42
Cohen v. Press, 31 N.J. Super. 45 (1954) 000. 42
In re Cornish, 98 N.J. 500 (1965) 2 47
Cushway v. State Bar, 170 8.E. 2d. 732, 120 Ga. App.
371 (1969), cert. denied, 90 S.Ct. 1705, 398 U.S. 910,
26 L.Ed. 2d 71, reh’g denied 90 S.Ct. 2256, 399 U.S.
Se ee UR ee 36
David v. Strelecki, 97 N.J. Super. 360 (1967), rev'd on
other grounds, 51 N.J. 563 (1968) 0 ee «=D
David v. June Strelecki, 51 N.J. 563 (1968) ical Oe
Matter of Dondi, 63 N.Y. 2d 331, 482 N.Y.S. 2d 431,
472 N.E. 3a 261 (1964) —__......... Fe ah re 55
Draney v. Bachman, 138 N.J. Super. 503 (1976) 43
Erdman v. Stevens, 458 F. 2d 1205 (2d Cir. 1972),
cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.id. 2d
147 (1972) ........ RS RN sat Mr Oe Ma Actes ieoeisekaitaelisdaeseanseelaciaaan aa
In re Fleishcher, Schultz, and Schw imer, D-11/12/13,
slip op. (Supreme Court of N.J. May 28, 1986) sasasesthdy OF
Florida Bar v. Rubin, 362 So. 2d 12 (Fla. 1978) 56
App. 7
PAGE
NO.
Foldi v. Jeffries, 93 N.J. 533 (1983) ~ pip iidinidncsaa a
In the Matter of Leroy C. Gipson, D-74, slip. op. (Su-
preme Court of N.J. June 17, 1986) . beta . 40
Tn re Gross, GT NJ. 419 (U9TS) accesses nse siaiicsieliiieaees 34
In re Hennessy, 93 N.J. 358 (1983) 00. ; 45, 46
Tm re Hyimuds, GO NJ. GOS (1982) nnn ceean canteen seen ees Oy DY
In re Hollendonner, 102 N.J. 21 (1985) 2... 45, 47
Tne re Kallem, 92 NJ. 14 (U9GBB) nnn cass ccesasenesne 52, 53
Laba v. Newark Bd. of Educ., 23 N.J. 364 (1957) 0. «53
Landmark Communications v. Commonwealth, 217 Va.
694, 233 S.E. 2d 120 (1977) rev’d and remanded,
435 U.S. 829, 98 S.Ct. 56 L. Ed. 2d 1 (1978) 58
Lepre v. Caputo, 131 N.J. Super. 118 (Law Div. 1974) 36
In re Logan, 70 N.J. 222 (1976) ai poe A, $3
In re Noonan, 102 N. J. 157 (1986) 1, 34, 37, 38, 39,
40, 41, 43, 45
Im re Pemmica, 36 NJ. 401 (1962) nnn . 84
In re Quinn, 25 NJ. 264 (1957)
In re Ries, 13 N.J.L. 559 (1944) vena ‘acai aa
In re Rockoff, 66 N.J. 394 (1975) anabaieisiia 34, 36
In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.
2d. 117, 122 (1968), reh’g den. 391 U.S. 961, 88 S.Ct.
eee 52
EF. Ne Sf). eee eee 35
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16
anaes: SEE A ATED scecteenieapecnacsacanianscnmdiamamenpnaaninaadl 60
State v. Laganella, 144 N.J. Super. 268 (1976) 53
State v. Merski, 4837 A. 2d 710 (N.H. 1981) 52
App. 8
PAGE
NO.
State v. Sugar, 84 N.J. 1 (1980) WEP M en
In re Templeton, 99 N.J. 365 (1985) inistiienntianuasadialannatinies 1, 46
Tessler & Son, Inc. v. Sonitrol Security Systems, 203
N.J. Super. 477 (1985) | aes ae
In re White, 24 N.J. 521 (1957) : ne
In re Wilson, 81 N.J. 451 (1979) 1, 34, 35, 38, 43, 45, 59
AMERICAN BAR ASSOCIATION RULES OF
PROFESSIONAL CONDUCT
R. 9.32 | | wo | 47, 48
NEW JERSEY COURT RULES
R. 1:20-10 (a) corm 4, 55
R. 1:20-11 (&) 42
-_-
SUPREME COURT OF NEW JERSEY
ETHICS COMMITTEE RULES OF
PROFESSIONAL CONDUCT
DR 5-103 | | | i;
DR 9-102 am ‘ ic a
DR 9-103 (B) . | ae’. ae
DR 9-102 (A) 13
DR 9-102 (A) (2) 13
DR 9-102 (B) (3) 13
DR 9-102 (C) 13
App. 9
PRELIMINARY STATEMENT
Unlike most of the reported cases involving misap-
propriation of trust funds, this case does not involve their
intentional use for personal purposes, it does not involve
compromising the quality of legal services provided to
clients, nor does it involve any misconduct which is so ‘‘im-
moral, venal, corrupt or criminal as to destroy totally any
vestige of confidence that the individual could ever again
practice in conformity with the standards of the profes-
sion.’’ In re Templeton, 99 N.J. 365, 376 (1985). It does
involve, however, a hardworking, caring and talented attor-
ney, whose fault was that at a time when his life was crum-
bling dewn around him, he negligently attended to the ac-
counting portion of his practice, while providing good legal
services to his clients.
As will be shown, Respondent should not be disbarred
as: (1) the Office of Attorney Ethies (OAK) failed to
meet its burden of proof; (2) in re Noonan, 102 N.J. 157
(1986) controls this case for negligence, not Jn re Wilson,
81 N.J. 451 (1979); (3) Respondent's right to dxe process
has been violated; and (4) If any penalty is imposed, the
Court should consider all mitigating factors.
STATEMENT OF THE CASE
The within matter involves a ten count Complaint
brought by the Office of Attorney Ethics. Following the
initial Complaint, there was a First Amended Complaint,
and a Seeond Amended Complaint. All these Complaints
were in turn answered by the Respondent, John M. Skevin,
Esq. The Second Amended Complaint maintained all
counts contained in the initial Complaint and the Amended
‘
| :
App. 10
Complaint. The following charges have been made.
Count One—Dodd ;
In the Dodd case, certain ethical violations are al-
leged regarding a real estate matter handled for Mrs. Dodd
by Mr. Skevin. Mr. Skevin testified that he had a prior
relationship with both Mr. and Mrs. Dodd, who were active
in the real estate market in the Hackensack area, and who
brought real estate investment opportunities to Mr. Skev-
in’s attention.
At the closing of the subject premises known as 409-
415 Main Street, Hackensack, New Jersey, Mr. Skevin held
$35,000.00 in escrow pending the settlement of certain
judgments and liens on the property. The evidence and
testimony are quite clear that he released $20,000.00 to the
Seller on April 15, 1982 (approximately two weeks after the
closing), when he was satisfied that the balance being held
was sufficient to cover the liens and judgments involved.
He did not obtain the approval of the title company be-
cause it was not required. When he determined the
amounts owed to the State of New Jersey and the Internal
Revenue Service for taxes, he paid off both liens and re-
tained an additional amount to eover any liens which had
not yet been resolved. (see rider to closing statement,
Exhibit C-23L indicating that 1980 IRS Return had not
been filed and therefore tax liability was not yet deter-
mined).
Without Mr. Skevin’s knowledge, the Dodds had pur-
chased the property intending to “flip it’’ through a con-
temporaneous sale. The sale transaction was handled by
another attorney, Harvey Anger, Esq., who eventually
contacted Mr. Skevin to determine the balance of the
monies held in escrow for the Dodds. While Mr. Skevin
App. 11
Was proceeding in an orderly fashion to discharge these
liens, the Dodds had to post $10,000.00 to their new Buyer
to cover these new liens. Mr. Skevin eventually arranged
with Mr. Anger for the transfer of the escrow funds in
the amount of $7,654.91 after satisfying the outstanding
tax.
Respondent contends that the facts of this case do not
give rise to an ethical violation. The Dodd matter raises
questions of practice, and those in turn involve questions
of judgment. Mr. Skevin was conservative in discharging
his duties as escrow agent, ensuring that all of the liens
were properly paid and discharged, and holding a reason-
able buffer to ensure that he had sufficient funds to dis-
charge the liens. He did not hold an excessive amount of
money, nor did he leave his account deficient. He did not
need the consent of any otler party to release the funds
as is evident by the closing statement and attached rider
which set forth the terms and conditions of the escrow.
The rider specificaly says ‘‘John M. Skevin, Esq. shall
hold the sum of $35,000.00 in escrow at the time of the clos-
ing of title pending settlement of the following:’’ and then
goes on to list the judgments and liens which were known
to the parties at the time of closing as well as those which
had not yet been determincd, such as the tax on the 1980
IRS return, (exhibit C-25-6).
The complaint also indicates that the deed was not
recorded until May 7, 1982 and the purchase inoney mort-
gage not recorded until June 4, 1982. Mr. Skevin explained
tliat he employed a secretary who was experienced in real
estate closings and who routinely reeorded documents in
a timely fashion. As he was preoccupied with medical
problems and hospitalized shortly after the closing, he as-
App. 12
sumed that the proper documents were recorded. When
Mr. Dodd called to his attention that the deed was not
recorded on or about May 7, 1982, he immediately in-
structed his secretary to do so.
A month later he learned that she had failed to record
the purchase money mortgage. He immediately made sure
it was taken care of. He speculates that the secretary’s
lack of familiarity with a purchase money mortgage
caused her to fail to recognize it as a recordable docu-
ment. All of her other closings involved bank mortgages
with specific documents and directions from the bank,
whereas the purchase money mortgage in this transaction
was different since there was no bank involved.
In the report rendered by the Special Master on
March 12, 1986, Judge Herbert found that the delay in re-
cording documents for the Dodd closing was not a basis
for disciplinary action. Further, he found that proof
was lacking that Mr. Skevin unethically caused Mrs. Dodd
to participate with her grantee and her grantee’s| title
company in a $10,000 agreement. Payments made by Mr.
Skevin as escrow agent were also found to be justified.
The Special Master further found that Mr. Skevin improp-
erly used certain monies from his trust account in viola-
tion of DR 9-102. (Report of Special Master, March 12,
1986, p. 7-10). It is unclear if the Disciplinary Review
Board adopted each and every one of these findings, as the
DRB Report merely sets forth Judge Herbert’s findings.
(DRB Report, May 23, 1986, p.4).
Respondent contends that the Office of Attorney
Ethics (hereinafter referred to as OAK) has not met its
burden of producing clear and convincing evidence that
Mr. Skevin had committed any ethical violation, and there-
App. 13
fore, based upon the foregoing, he respectfully requests
that The Court dismiss this count of the Complaint.
Count Two—-Schrader
In the Schrader matter, several facts are alleged
to be ethical violations which Respondent claims are not.
All of the ethical violations alleged by the father, James
Schrader, have been dismissed by the District Ethics Com-
mittee and the Disciplinary Review Board, and Fee claims
in dispute were decided by the fee Arbitration Committee
in Bergen County in favor of Mr. Skevin, awarding
him $11,473.55, (Exhibit M-1), the only deduction being
approximately $2,300, which the Committee determined
to be the obligation of John Schrader. James Schrader
filed an appeal, and the Fee Arbitration Committee’s de-
cision was upheld.
The essence of this complaint revolves around prom-
ises by John Schrader to compensate Mr. Skevin for legal
services performed for his parents as well as himself in
eases other than Schrader v. D’amore. The Schraders
are a litigious family, generating more than one dozen law
suits in the few years in which they were represented by
Mr. Skevin. Some of them were municipal court actions
involving disputes with neighbors, and others were sig-
nificant actions with potentially dire consequences. They
were faced with a foreclosure on their home from which
they were saved by Mr. Skevin, and a $611,000.00 judg-
ment in the Sunstar suit which Mr. Skevin eventually set-
tled without the Schraders having to pay any money. The
results in D’amore were also extraordinary as the defen-
dant had only $10,000 of insurance coverage. Mr. Skevin’s
efforts put together a $250,000 settlement from parties
whose involvement in the accident was indirect.
App. 14
This Court should also be mindful of the public ven-
detta being carried out by the Schraders against Mr.
Skevin which has caused him irreparable harm. As evi-
denced in Exhibit R-1, they have violated the confiden-
tiality of these ethics proceedings by discussing them
openly in an August 26, 1984 New York Times article
authored by reporter Albert J. Parisi. Since these pro-
ceedings commenced, numerous articles about this case
have appeared, including, but not limited to, articles in the
following papers on the following dates: The Star Ledger,
June 8, 1984; The New York Times, August 26, 1984; The
Bergen Record, August 13, 1985; The Star Ledger, May 6,
1986; The Star Ledger, May 31, 1986; The Bergen Record,
June 1, 1986; The New Jersey Law Journal, June 5, 1986;
and The Star Ledger, June 22, 1986 (All articles Attached
as Exhibit A to the August 6, 1986 Affidavit of Mr. Skevin,
and also attached hereto). Most of these articles appeared
prior to the date this matter was set for oral argument
before the Supreme Court (by Order to Show Cause dated
May 29, 1986) and contained confidential information
and/or interviews with people who were not permitted to
speak about this matter, particularly the Schraders. This
case has also received television coverage, as set forth in
Mr. Skevin’s affidavit.
There is a strong suspicion that the Schraders were
also involved in the production and distribution of a scuri-
lous leaflet which is also made part of Exhibit R-1 and
which has been circulated in Hackensack, the City in which
Mr. Skevin resides with his family and where he practices.
Fairness and justice would dictate that those who so eggre-
giously violate the confidentiality of these proceedings
should somehow not be rewarded by a decision or penalty
App. 15
against Mr. Skevin. However, the facts of the case and the
evidence before the Court more than amply justify a de-
cision that there has been no ethical violation alleged in
Count Two of the complaint:
One of the violations alleged is that Mr. Skevin ad-
vanced funds to John Schrader before collecting any monies
in settlement of the D’amore case. Mr. Skevin acknowl-
edges having advanced $9,050.00 to John Schrader from
August 19, 1982 to November 19, 1982 (see Exhibit R-7),
and has testified that he believes he was advancing these
monies from his own personal funds which he had deposited
into the trust account.
The loans were clearly an act of charity. John
Schrader had suffered a serious accident which resulted
in the amputation of one leg. He became estranged from
his family when they disapproved of his marriage, throw-
ing him, his new wife and her child of a previous mar-
riage out into the street. Mr. Schrader was unemployed,
had no funds, was living in a motel in North Bergen in
the cold of winter, unable to feed or care for his family.
Mr. Skevin, being a charitable and sensitive human being,
responded to the pleas of John Schrader, and advanced
funds-to him to be repaid from any recovery in the
D’amore case. Some of the loans were made after a set-
tlement was struck. (see Exhibits R-6H, I and Kk).
Another allegation involves a claim that Mr. Skevin
failed to provide an accounting and payment of monies
due to John Schrader from the aforementioned negligence
action. The evidence and testimony indicates that al-
though there was no formal accounting until April 20, 1983
as explained below, there were on-going, significant com-
App. 16
munications with Mr. Schrader which Mr. Skevin reason-
ably believed were keeping him informed. Mr. Skevin’s
testimony and the Affidavit of Jean A. Fostedt demon-
strate that John Schrader promptly came to Mr. Skevin’s
office upon receipt of settlement checks to receive his
share. Prior to the settlement, while Schrader was hos-
pitalized from June 20, 1979 to December 22, 1979, invoices
and copies of cover letters for disbursements were sent
to his parents, Mr. and Mrs. James Schrader. (see Ex-
hibit R-8).
There was obvious confusion since John Schrader
lived with his parents at the outset of the case and later
separated from them, which could readily explain the mis-
taken distribution of copies of correspondence intending
to keep him informed.
In any event, on April 20, 1983, Mr. Skevin sent to
John Schrader a full accounting of what had been re-
ceived and disbursed in the D’amore case, and what Mr.
Skevin had taken as payment for various other cases pur-
suant to his agreement with the Schrader family, including
John. (See Exhibit R-15). Mr. Skevin explained that
the delay was caused by the time required to go through
each of these files and compute the fees and disburse-
ments. His behavior was reasonable under the cireum-
stances, and should not be construed as an ethical vio-
lation. Given the multiplicity of suits and the voluminous
filed described by Mr. Skevin, providing a final accounting
on April 20 after making his last disbursement on January
25 was not an unreasonable delay.
In any event, all of John Schrader’s claims against
Mr. Skevin were finally settled on August 3, 1983 by the
. 5 ? o
See
App. 17
$14,000.00 payment to Schrader and the exchange of re-
leases between the parties. It is important to note that
Mr. Schrader was represented by counsel, Eugene Calla-
han, Esq., and the release clearly covers any and all claims
for proceeds due Mr. Schrader from the D’amore case and
any claims contained in the ethics complaint against John
Skevin which is the subject of this count. (Report of Spe-
cial Master, March 12, 1986, p. 16).
Another allegation contained within this Count in-
volves John Skevin signing the name of John Schrader
to a check issued by the Superior Court pursuant to the
Order of Judge Benedict Lucchi in the amount of
$59,179.37. Said Order provided that the monies deposited
with the Court by one of the defendants was to be made
payable to John M. Skevin, an attorney for John Schrader.
Due to a clerical error, the check was made payable to John
Schrader. Mr. Skevin admits signing John Schrader’s
name with John Schrader’s authorization, but Mr.
Schrader denies giving such authorization. Since the check
was to have been made payable to Mr. Skevin, he could
have returned same to the Clerk of the Superior Court
to have the same replaced with a check as per the Order
of Judge Lucchi, but this would have delayed disburse-
ment of the proceeds.
The facts of the case would tend to support Mr.
Skevin’s position. As evidenced by Exhibit R-8, Mr.
Schrader was anxious for receipt of funds and asked that
Jean Fostvedt call him whenever she received a draft so
that he could arrange to have his share picked up, rather
than waiting for it to be mailed to him.
Mr. Skevin’s testimony that John Schrader was dis-
abied on that particular day and authorized him to sign
App. 18
his name and deposit the check is perfectly credible. The
fact that John Schrader would occasionally be disabled
and unable to come to the office is reasonable, given the
magnitude of his injury. His desire to receive funds
rapidly makes it logical to expect that he would authorize
Mr. Skevin to sign his name to deposit the funds so that
Mr. Skevin could in turn draw a check and send it to him.
As evidenced by Exhibit R-7, Mr. Skevin sent Mr. Schrader
a check in the amount of $15,000.00 on January 12, 1983,
just five (5) days after it was issued by the Superior
Court, approximately the minimum time necessary for a
check to be deposited and cleared before funds could be
disbursed against it from the trust account.
Another allegation in this Count involves Respon-
dent’s withdrawal from his trust account of $38,500.00
prior to November 22, 1982 by a series of nine (9) checks
which were designated as partial fees or costs in the negli-
gence action. The complaint further alleges that the with-
drawals were without the apparent consent of any other
client of the Respondent. Mr. Skevin testified that he
made these advances from what he believed to be his own
personal funds, and expected to reimburse himself from
the proceeds to be received within a short period of time
from the settlement already struck in the D’amore case.
The evidence introduced by the OAE supports this posi-
tion and is reflected in Exhibits C-24E through M, all of
which were made in November, 1982, after the settlement
was struck in Court and a few days before the receipt of
the first check on November 22, 1982.
Although this is a questionable procedure, it is not a
violation of disciplinary rules to advance your own funds
App. 19
to yourself, which is what Mr. Skevin believed he was
doing.
Respondent admits that there was no written agree-
ment between himself and the Schraders for payment of
fees for other law suits from the proceeds of the negli-
gence action. However, that matter has now been settled
between Mr. Skevin and John Schrader as set forth in
Paragraph 22 of the Stipulation of Facts (See J-I). The
claims between Mr. Skevin and Mr. and Mrs. James
Schrader went before the Fee Arbitration Committee,
which awarded $11,473.55 to Mr. Skevin. (Exhibit M-1).
The Special Master concluded that loans to Schrader
constituted unethical conduct for which a private repri-
mand would be adequate discipline. The Special Master
also noted that the deposit of Respondent’s personal funds
in his trust account was contrary to DR 9-102(A), with-
drawal of funds prior to settlement was a violation of
DR 9-102 (A) (2), maintenance of complete records in
compliance with DR 9-102 (B) (3) was not followed, and
proper record keeping in compliance with DR 9-102 (C)
was not maintained. (Report of Special Master, March
12, 1986, p. 19-20). The report of the Disciplinary Review
Board reiterated these findings, without commenting on
their validity. (DRB Report, May 23, 1986, p. 7).
Based upon the foregoing, Count Two of the Ethics
Complaint should be dismissed as the OAK has not proven
clearly and convincingly that Mr. Skevin is guilty of any
ethical violation.
Count Three—Onello
The facts of this Count involve a real estate transac-
tion wherein Mr. Skevin was a partner with Joseph Onello
App. 20
and also was the attorney representing the partnership in
the purchase of a store known as 116-122 Main Street,
Hackensack, New Jersey. At the closing on March 5, 1982,
Respondent received and held the sum of $10,000.00 in his
trust account as escrow agent for the purpose of satisfy-
ing, inter alia alleged franchise taxes due from the sellers
to the State of New Jersey. As is evidenced by the clos-
ing statement, Exhibit C-25A, Mr. Skevin had a respon-
sibility to see that the sellers satisfied payment of the
franchise taxes. But, it was quite clear that the responsi-
bility for payment was on the sellers. This appears to be
reflected in the correspondence between Joann Onello,
Esq. and Mr. Skevin’s Associate on March 23, 1983. (see
Exhibit C-251).
As indicated in the Stipulation, Mr. Onello bought out
Mr. Skevin’s interest shortly after the closing. He had
difficulty in transferring title a year later when he was
represented by his daughter, but that was not the fault of
Mr. Skevin. The fact that the sellers had not yet dis-
charged the liens was beyond Mr. Skevin’s control. It
was not until October 10, 1983 that Mr. Skevin received
adequate notice permitting him to release his funds when
he received a letter from James E. Mackevich. (see Ex-
hibit R-16).
There were admittedly problems in communication
during that year between the Respondent and Mr. Onello,
but the Respondent thoaght he was discharging his respon-
sibility -by communicating with Mr. Onello’s daughter.
Mr. Skevin’s position is supported by Exhibit C-25I.
These problems in communications gave rise to Mr. Onel-
lo’s filing of his ethics complaint on April 29, 1983, but
he obviously regretted that act when he withdrew the com-
plaint one month later on June 1, 1983. (see Exhibit R-17).
ee
App. 21
The facts of this Count demonstrate a misunder-
standing between business partners and a lack of under-
standing on the part of Mr. Onello as to the duties and
responsibilities of an attorney when he acts as an escrow
agent. Mr. Skevin had the obligation of holding certain
documents as well as funds in escrow until certain eondi-
tions were satisfied, and Mr. Onello’s impatience to the
contrary, Mr. Skevin appears to have adequately dis-
charged his fiduciary responsibilities. There appears to
be no basis for a finding that there was an ethical violation
on the part of Mr. Skevin with regard to Count Three, and
the Count should be dismissed. :
Judge Herbert held that ‘‘(t}/he Third Count of the
Amended Complaint, incorporated by reference as Count
Three of the Second Amended Complaint, should be dis-
missed. (Report of Special Master, March 12, 1986, p. 22).
The Onello matter was also covered by Count Four as well,
and the Special Master concluded that money held in the
escrow fund was used for purposes other than those for
which it was intended. (Report of Special Master, March
12, 1986, p. 23; DRB Report, May 23, 1986, p. 8).
Count Seven—Santana
The Santana case is another matter involving Mr.
Skevin’s extraordinary generosity and caring for his fel-
low man. Mr. Santana, a young man of Puerto Rican
descent, was a stranger in this country who was without
funds, food, or shelter. Mr. Skevin responded to his des-
parate situation by lending him money, and as Mr. Skevin
testified, if he had not recovered anything for Mr. San-
tana in the negligence action, he would have forgiven the
loan. (**T105-24"’ through ‘*T106-5’’, 7/12/85).
App. 22
Mr. Skevin was not the attorney of record, the mat-
ter being handled by another attorney in New York where
the accident occurred. Since DR5-103 only applies to at-
torneys while representing a client in connection with pend-
ing litigation, it’s questionable whether the facts of this
case even apply to Mr. Skevin, who was the referring at-
torney and not the attorney of record.
Here again, as in the Schrader matter, Mr. Skevin
should not be penalized for his acts of charity by being
cited for an ethical violation, and the Court should hold
in Mr. Skevin’s favor, and dismiss this Count.
Both the Special Master and the Disciplinary Review
Board coneluded these actions violated DR5-103 (B), and
the DRB did not contradict the Special Master’s conclu-
sion that private reprimand would be adequate discipline
for this conduct. Moreover, no trust account funds were
involved. (Report of Special Master, March 12, 1986, p. 29;
DRB Report, May 23, 1986, p. 8).
Count Eight—Ferraro and Direnzo
The gravaman of this Count is that the Respondent
failed to advise Ms. Ferraro that she had the opportunity
to retain him on either an hourly basis or a contingency
basis. She had filed an ethics complaint against him al-
leging misrepresentation and improper withdrawal as
counsel. This matter was heard by the District IL-B
Ethies Committee, which dismissed all charges.
Mr. Skevin testified that Ms. Ferraro was a CETA
worker in the Lodi Municipal Building working for mini-
mum wage. He knew her through his political contacts
with the elected officials in Lodi, Mr. Skevin being the
State Senator representing that town.
App. 23
Mr. Skevin further testified that he never undertook
representation of Ms. Ferraro, as he considered her al-
legations frivolous and advised her that she did not have
a cause of action which would permit him to file a com-
plaint.
In the Direnzo matter, we have a similar set of facts.
The Direnzos obviously could not afford to pay an hourly
charge, and talking to them about the alternative of a con-
tingeney fee versus an hourly charge was a complete waste
of time.
The OAE has failed to sustain the burden of providing
clear and convincing evidence to the court to support the
allegations regarding Ferraro and Direnzo, and clearly
that the allegations in Count Eight, paragraphs 1 through
6, involving both Ferraro and Direnzo were de minimus.
The Special Master concluded that Count Eight of the See-
ond Amended Complaint should be dismissed. The DRB
did not contradict this conclusion. (Report, Special Master,
March 12, 1986, p. 29).
Count Eight—Brennan vs. A & P
This matter appears settled as Mr. Louis Brief re-
checked the calculations made by the OAE in Exhibit
C-32W and found that the amount paid by Mr. Skevin to
the Brennans in the aforementioned matter was in fact
correct. (See Exhibit C-32-X).
Mr. Skevin testified that he and his accountant went
back and reealeulated the accuracy of fees taken in cases
raised by the Disciplinary Review Board, and where they
found errors corrections were made. This was one of
those cases, but Mr. Skevin testified that the errors were
App. 24
inadvertent. As explained above, Count Hight was dis-
missed.
Count Eight—Gruia vs. Buccola
The testimony in this matter is not clear. The OAE
provided calculations showing an overcharge. Mr. Skev-
in’s accountant, Bruce Butzel, has also reviewed the fig-
ures, and is in agreement regarding the overcharge but
disagrees as to the amount. All monies owed have been
sent to the Gruias. The Court should not that there was
an initial check on the caleuletion of the fees made in
May 1984, and as a result, an error was discovered. Mr.
Skevin sent Mrs. Gruia a check for $668.02 to correct the
error on May 16, 1984. A copy of the cover letter and
check have been submitted to the Court; it was marked
into evidence as Exhibit R-29. As explained above, Count
Eight was dismissed.
Count Nine—Lieb
The allegations contained in Count Nine, Paragraph 2
involve the dishonoring of checks on two occasions by a
bank drawn on Mr. Skevin’s general business account.
Since an overdraft on a general business account is not an
ethical violation, this Count should be dismissed.
Count Nine—Wicks
The allegations in Count Nine—Paragraph 13 involve
funds the Respondent was holding in the Matter of the
Estate of Wicks. A check drawn by Mr. Skevin was re-
turned for insufficient funds, and he replaced it, satisfac-
torily. The OAE was unable to provide proof that the
check was drawn on a trust account, and therefore, did not
meet its burden of providing clear and convincing evi-
App. 25
dence that there was a violation of any ethical rule. Re-
spondent moved to dismiss this Count on the aforemen-
tioned basis, and Judge Herbert granted Respondent’s mo-
tion and dismissed Paragraph 13 of Count Nine.
At the hearing, items (7) through (11) of paragraph
one of Count Nine were dismissed, as were paragraphs 8
through 12. (Report, Special Master, March 12, 1986,
p. 30). The DRB did not address this point.
Counts Four and Six: Missappropriation and Comingling
Count Four alleges that the Respondent knowingly
misappropriated clients’ trust funds in 1982 and 1983.
The OAE alleges a misappropriation totalling $181,080.00
(Count Four, paragraph 4), and that Respondent was ‘‘out
of trust $147,914.08 as of December 31, 1982 and $15,741.89
as of December 31, 1983’’. (Count Four, paragraph 5).
The OAE has failed to present clear and convincing evi-
dence that Respondent’s actions were done knowingly and
intentionally, nor did they prove the allegations in para-
graphs 4 or 5.
The facts amply prove that the Respondent failed to
employ proper bookkeeping procedures resulting in sub-
stantial mistakes. However, the record is devoid of clear
and convincing evidence that he knowingly and intentionally
took clients’ trust funds for his own use. He believed that
he had sufficient personal funds to cover advances made to
himself (see Exhibit C-10) and relied upon his bookkeeper
or the bank to advise him if there were insufficient funds.
The bookkeeper, on the other hand, was doing all she
could do to keep up her secretarial and bookkeeping duties
as the practice expanded, and it appears that she per-
App. 26
formed her duties without consulting Mr. Skevin so long
as checks were not being returned by the bank. In short,
she delivered checks to Mr. Skevin for his signature, upon
his request, and he signed them. He believed that there
were proper funds to cover these checks, and she did
nothing to contradict that belief.
It is easy in retrospect to analyze the facts and decide
that such a “hodgepodge’’ bookkeeping system could not
have gone on for two years without the Respondent know-
ing what was happening; however, as we analyze the tes-
timony and evidence in the record, it becomes easier to
understand and Mr. Skevin’s testimony becomes more
credible.
First let’s look at the testimony of the OAE’s main
witness, Louis Brief, CPA. His primary analysis is em-
bodied in Exhibit C-8. That document is offered, inter
alia, to prove the allegations in Paragraph 5, Count Four,
that Respondent was out of trust $147,914.08; however, Mr.
Brief testified that Exhibit A-1 attached to C-8 does dem-
onstrate that Respondent is not out of trust. Instead, it
shows a debit balance of that amount which Mr. Brief
described as being ‘‘overdrawn’’ in Respondent’s checking
account.
Even the accuracy of that testimony is subject to
serious question. For example, in Exhibit A-1 attached
to C-8, we see a debit balance of $1,334.00 for the case of
K. Colondo v. Rennie Metal. According to Mr. Brief’s
testimony, this means that Mr. Skevin wrote checks ex-
ceeding deposits by that amount. If we look at the under-
lying documentation, that does not appear to be the case.
The ledger sheet showed a balance at the beginning of
1982 of $12,784.00 with two disbursements, check number
App. 27
807 on February 2, 1982 to Royal Insurance in the amount
of $10,984.00 and check number 808 on February 2, 1982 to
Excelsior Insurance Company in the amount of $1,800.00
for a total of $12,784.00, leaving a zero balance. (see Ex-
hibit C-35A, C-35B).
Similarly, the DeSimone v. DeRosa case shows a
credit balance of $104.26 but the ledger sheet shows a zero
balance (see Exhibit C-37-A); DeVito v. Shop Rite shows
a credit balance of $4,359.75 but the ledger sheet shows a
zero balance (Exhibit C-38-A), as does Dorns v. Ryan
(Exhibit C-39-A).
In the Estate of Auguste Flynn, there appears a debit
balance of $578.97 from the original ledger sheet (Exhibit
C-42-A), but an examination of a corrected ledger sheet
(Exhibit C-42-B) indicates that a balance of $10,487.08
was not included, and the actual balance should have been
zero. The same appears to be true for Kearney v. Bergen
Pines where the original ledger sheet was in error and the
correction showed a balance forward of $6,500.00 resulting
in a zero balance and not a debit balance of $2,250.00 as
reflected in C-8.
Kullsya v. LaRusso shows a debit balance in C-8 of
$311.67, but the ledger sheet shows a zero balance. (see
Exhibit C-51-A). The revised ledger sheet does show
that balance (Exhibit C-51-D), but Mr. Brief testified that
when he prepared C-8, he only had the original ledger
sheets.
In the matter of Lucy Quintero, C-8 shows a debit
balance of $22,048.46. If we look at the ledger sheet, we
find that it is a credit balance for the same amount at the
end of 1981, not 1982. (Exhibit C-68-A), and a zero balance
at the end of 1982. (Exhibit C-68-B).
App. 28
The ledger sheets originally used by Mr. Brief to pre-
pare ©-8 were not created contemporaneously with the
transactions set forth therein. They were created retro-
actively in the summer of 1983 by Nancy Cloonan, Mr.
Skevin’s bookkeeper in response to the OAE’s request.
There were obvious errors, relied upon by Mr. Brief, which
necessitated her redoing many of the sheets, thereby dem-
onstrating that the factual basis for many of the allega-
tions made by the OAE were premised upon inaccuracies.
Recognizing the substantial errors on the face of C-S,
and the fact that it is based upon inaccurate underlying
documents, one must conclude that the validity of C-8 is
insufficient to meet the OAK’s burden of clear and con-
vincing evidence with regard to its allegations in the Com-
plaint.
The Respondent does not deny the allegations in Count
Six in that he did commingle over $1,000,000.00 of his per-
sonal funds between 1981 and 1983 in his trust account with
funds of his clients. \The OAE attempted to show that
these funds were insufficient to cover advances Respondent
made to himself in anticipation of receipt of proceeds from
cases on behalf of clients; however, an analysis of Mr.
Brief’s testimony makes it easier to understand why Mr.
Skevin believed he was covering these advances with his
personal funds.
Mr. Brief took deposits from Exhibit C-10 and dis-
bursements from Exhibit C-104A and compared them for
the years 1981, 1982 and 1983. He came up with an aggre-
gate total for 1981 through 1983 of $1,752.52 overdisbursed,
(more money spent than was deposited). Upon cross-ex-
amination, Mr. Brief admitted that $87,000.00 in checks
App. 29
set forth in C-104A were without notation, and he assumed
they were disbursements to Mr. Skevin personally. How-
ever, he could not conclusively state whether the disburse-
ments were for personal or business purposes. He also
admitted not counting certain adjustments to C-10 for de-
posits actually made in 1983 which could be anywhere from
$90,000.00 to $120,000.00. Assuming that the adjustment
of C-10 is $90,000.00, Mr. Brief admitted that there could
be as much as $175,000.00 more in deposits than disburse-
ments over the period 1981 through 1983.
If Mr. Brief with the assistance of the OAE could
arrive at such conflicting conclusions, despite the fact that
he had been analyzing these accounts for almost two years,
it is not too difficult to understand how Mr. Skevin could
~ have become confused and believed that he had sufficient
personal funds to cover advances to himself. (See Testi-
mony of Louis Brief, ‘‘T3-1 et. seq.,’’? July 15, 1984; ‘‘T2-
7’’ to ‘‘T74-8,’’ July 16, 1985).
The testimony of Nancy Cloonan adds some pieces to
the puzzle. She corroborates Mr. Skevin’s testimony that
there was no accounting of the trust account, not even a
monthly reconciliation of the bank statements. She did
not check to see if funds were received for a specific file
before preparing a check against a client account, nor did
anyone else in the office perform that task.
She alone computed fees and disbursements and ad-
vised Mr. Skevin, who did not cheek her work. She also
admitted occasionally writing out checks for payroll or bills
when the Respondent was not available.
She also supported Mr. Skevin’s testimony that he
was out of his office each day for substantial periods of
time for trials, politics, or business.
App. 30
She testified that she checked the trust accounts as
of March 20, 1984 and found them to be essentially in bal-
ance with all clients’ claims satisfied except for a small
difference of a few hundred dollars in the New Jersey Bank
trust account. (see Exhibit R-19).
Regarding the bookkeeping and-accounting procedures,
Respondent would summarize as follows. Mr. Skevin was
a single practitioner for many years. He had a small local
practice in Oradell, and the level of financial activity was
such that he was able to do all of his own accounting in-
cluding the preparation of his tax returns. He was typical
of many single practitioners throughout the state who use
a ‘‘checkbook accounting method’’ without any additional
records.
In 1973 he was elected to the State Senate, and over
the next few years, his practice experienced extraordinary
growth. He added associates and secretaries, but never
changed the bookkeeping system or its level of sophisti-
cation.
His public position also brought new business oppor-
tunities, and he took advantage of them with his increas-
ing assets which flowed from higher income.
He was re-elected to the Senate in 1977 and was
sitting on top of the world. He was appointed Vice Chair-
man of the Senate Judiciary Committee and Chairman
of the Cancer Study Commission. He was making more
money than he ever dreamed of, and he started to build
a substantial real estate portfolio.
The 1980’s proved to be as bad for Mr. Skevin as
the 1970’s were good. He lost his bid for re-election in
App. 31
1981, and just as rapidly as his practice had expanded,
it started to contract. Furthermore, his business and pro-
fessional problems were compounded by serious personal
and health problems.
After 24 years of marriage, he separated from his
wife in 1978 and went through a bitterly contested divorce
culminating in 1981. The results of the divorce were
devastating, as Mr. Skevin became totally estranged from
three of his five children, and has not spoken to any of
them from the date of his separation to the present.
He developed back problems prior to his separation
due to a herniated dise which was compounded by the
stress of his personal life. This condition caused him to
be hospitalized for several weeks at a time and placed
him under medication which included muscle relaxants and
tranquilizers. We would submit to the Court that the
sedation which Mr. Skevin required for this problem also
contributed to his inability to focus on all aspects of his
practice.
He experienced a number of other illnesses including
prostatitis, skin cancer on his face (melanoma), a growth
on his foot, and a cold nodule on his thyroid, necessitating
the removal of two-thir), Jf his thyroid gland. (See Ex-
hibits R-21, R-22, and R-23 for details). Shortly after his
separation, he learned that his sister had been hospitalized
and would have to be institutionalized for the same mental
disorder that afflicted his mother. (His mother was insti-
tutionalized when he was quite young, and later diagnosed
as a schizophrenic. She eventually died in an institution.
He was raised by his father who was at work most of the
time.) He beeame aware that this problem might be
App. 32
hereditary, and this caused him substantial emotional! dis-
tress. His worst fears were realized when he learned that
his son, John, also suffered from the same mental dis-
order and is permanently unemancipated. The only other
child with whom he has a relationship, his son Robert, de-
veloped serious drug problems, and Mr. Skevin had to
attend to a host of conflicts with Robert who was in and
out of trouble for several years during the same period
of time. (Although Mr. Skevin suspected there might be
more to Robert’s obvious problems, he has only recently
confirmed that Robert also suffers from paranoid schizo-
phrenia. )
The devastating psychological affect all of these
events had on Mr. Skevin in 1982 and 1983 are set forth
in detail in the report of Dr. Allwyn J. Levine, a dis-
tinguished psychiatrist who evaluated Mr. Skevin. (see
Exhibit R-24). Dr. Levin concludes that Mr. Skevin is a
clinically depressed man. He states:
It is my impression that, because of the multiplicity
of intrapsychic stresses, external reality pressures
generated by his profession, his elected position, his
family problems, his medical problems, and his life-
long pattern of somewhat disorganized bookkeeping
practices, an oversight in not keeping separate ledgers
could have occurred. Granted, an accountant or book-
keeper should have picked up on these errors, but if
Mr. Skevin had not read the Rules of Court and was
not apprised of the new requirements for keeping
separate ledger sheets, it’s easy to understand how
these errors could have occurred.
To further examine Mr. Skevin’s intent, we offer Ex-
hibit R-25. In the spring of 1983, Respondent received
preliminary data on his 1982 Income Tax Returns from
App. 33
Bruce Butzel. He was surprised and concerned at the sub-
stantial overstatement of his earnings. For the first time,
he personally analyzed his fees and determined that
$133,497.84 in fees were misapplied, artificially inflating
his income. The results of his analysis are reflected in
his May 19, 1983 letter to Bruce Butzel which is Ex-
hibit R-25.
Mr. Skevin testified that as a result of this analysis,
he became aware of a shortage in his trust account for the
first time, and commenced immediate steps to restore the
funds. This is significant because it occurred prior to
the Office of Attorney Ethics ordering an audit of his
books and records, and lends credibility to Mr. Skevin’s
position that he did not knowingly invade his trust account.
He later undertook independent calculation of each
file with his accountant to insure that each client received
what they were due. This was in fact done and confirmed
by his accountant. (see Exhibit R-26).
Mr. McCormick tried to attack Respondent’s credi-
bility on the issue of commingling, but Respondent’s tes-
timony is credible on that issue. He explained that when
he first started private practice in 1967, he experienced a
$14,000.00 shortage in a house closing which he made up
from his personal funds. To assure that he would never
be out of trust, he started the practice of keeping arbitrary
amounts of personal funds in his trust account as a buf-
fer against mistakes.
When asked directly whether he ever knowingly used
clients’ trust funds, he categorically denied ever doing so.
The OAE has presented no evidence or testimony to refute
that clear testimony by the Respondent. In fact, the OAK
App. 34
admitted before the DRB that it could not prove Respon-
dent knowingly misappropriated funds. (‘‘T32-25’’
through ‘‘'T35-25’’, April 16, 1986).
In deciding this matter, Respondent believes the Court
must consider all aspects of his performance. He has of-
fered into evidence an Affidavit of Raymond F. Flood,
Esq. dated July 18, 1985, (Exhibit R-30), who was ap-
pointed by the Supreme Court to serve as a proctor for
Mr. Skevin on or about July 20, 1984. During the past
year, he served as a co-signator on both his regular busi-
ness and trust accounts, and supervised the general fi-
nancial affairs of his practice. He was assisted in this
endeavor by William Morrison, a certified public account-
ant, who reviewed Mr. Skevin’s accounts on a monthly
basis and prepared a monthly report for the Office of
Attorney Ethics.
We call the Court’s attention to Paragraph 6 of Mr.
Flood’s Affidavit wherein he concludes that ‘‘Mr. Skevin
appears to be a competent professional, providing good
quality legal services to his clients. Mr. Skevin’s legal
files appear to be well organized and he obtains good re-
sults for his clients which primarily involve negligence
actions.’’ We submit to the Court that this has been true
throughout Mr. Skevin’s practice including the years 1981
through 1983. Although he was derelict in his bookkeep-
ing practices, he did not compromise the quality of legal
services provided to his clients, including the Schraders,
who enjoyed the benefit of his experience, and obtained
good results. This continued to be true over this past
year when he was subjected to enormous pressure due to
unfair and improper publicity surrounding this matter
App. 35
which was supposed to be confidential, which publicity has
had a devastating effect on his practice.
The publicity has also made him a target for several
disgruntled former clients and business associates who
sought to take unfair advantage of Mr. Skevin in his eur-
rent predicament. A pattern has developed where they go
to the newspapers first to put pressure on him to settle
for more than he would otherwise be willing. Because he
was a public figure, the newspapers appear ready and will-
ing to print virtually any story involving his predicament.
Needless to say this has caused enormous emotional dis-
tress and anguish for him and his family, as set forth in
Mr. Skevin’s Affidavit of August 6, 1986.
There is an additional policy issue which should be
addressed by this Court. Mr. Skevin testified that he
never received accounting training in law school or subse-
quently. There were no courses offered on how to keep a
trust account, and his experience is typical‘of most lawyers.
Our State does not require such courses to be taught in
law schools, it is not tested on the Bar Exam, it is not
taught in the Skills and Methods courses required for li-
censure, nor is it required as part of the Continued Legal
Kducation program in this State. (see Exhibit R-27).
Only recently has the New Jersey Institute for Continued
Legal Education offered materials on trust fund account-
ing in their skills training course. (see Exhibit R-2s).
It hardly seems fair for the legal system of our State
to provide no training and then deal harshly with those
who make mistakes.
App. 36
POINT I
DISBARMENT IS NOT AN APPROPRIATE
REMEDY IN THE CASE AT BAR.
A. The Wilson Standard If Knowing Misappropriation
Has Not Been Met By Clear and Convincing Ev‘dence.
The landmark case of Jn re Wilson, 81 N.J. 451 (1979),
put forth the maxim that in all attorney disciplinary cases
where ‘‘knowing’’ misappropriation is proven, the result
will almost invariably be disbarment. Jd. at 453; In re
Noonan, 102 N.J. 157 (1986). The knowing misappropria-
tion, however, must be established by clear and convincing
evidence. In re Rockoff, 66 N.J. 394 (1975); In re Gross,
67 N.J. 419 (1975).
This standard of clear and convincing evidence has
been found to lie somewhere below the ‘‘beyond the rea-
sonable doubt’’ standard of criminal cases yet, above the
‘‘preponderance of the evidence’’ standard of most civil
eases. See, In re Pennica, 36 N.J. 401, 419 (1962).
The reason for this higher standard is because of what
is at stake in disciplinary proceedings. An adverse finding
will lead to dire consequences, Pennica, 36 N.J. at 419,
ranging from loss of reputation to the loss of the attor-
ney’s license to earn a living. See, In re Arndt, 67 N.J.
432 (1975) (Reasoning that loss of driver’s license seriously
affects driver’s livelihood). This Court, recognizing the
clear and convincing standard in In re Sears, 71 N.J. 175
(1976), stated that:
This high standard emphasizes the reluctance which
should characterize a decision to impose a disciplinary
sanction and the serious consequences which attend
such a decision. As a practical matter, such a decision
App. 37
limits, if it does not preclude, an attorney’s oppor-
tunity to practice his chosen profession. We should
impose such a restriction only after careful delibera-
tion and only in circumstances which clearly warrant it.
Id. at 197-198.
Similarly, the decision to charge an attorney with
knowing misappropriation (which, according to Wilson,
invariably leads to disbarment) is akin to charging him
with a crime. In re Fleischer, Schultz and Schwimer,
D-11/12/13, slip op. at 10 (dissent) (Supreme Court of
N.J. May 28, 1986) (O’Hern, dissenting); Lrdmam v.
Stevens, 458 F. 2d 1205 (2d Cir. 1972), cert. denied, 409
U.S. 889, 93 S.Ct. 126, 34 L. Ed. 2d 147 (1972). If disbar-
ment results, the attorney will be permanently deprived of
his right to practice law (Reinstatement has occurred only
three times in the past 100 years. Wilson, supra, at 460,
n. 5). Such a deprivation makes disbarment analogous to
criminal punishment.
Recognizing this, some courts have held that charges
in a disciplinary proceeding must be established “beyond a
reasonable doubt.’’ See e.g. Cushway v. State Bar, 170
S.E. 2d 732, 120 Ga. App. 371 (1969), cert. denied, 90 S.Ct.
1705, 398 U.S. 910, 26 L. Ed. 2d 71, reh’g dented, 90 S.Ct.
2256, 399 U.S. 938, 26 L.Ed. 2d 810 (1969) Although these
holdings are contrary to the weight of authority, which
subscribes to the clear and convincing standard, See, e.g.
Rockoff, supra, they serve to reiterate an important point:
The consequences of a disbarment proceeding are extremely
serious and irreversible. Therefore, to warrant disbar-
ment, the unethical conduct—in this case, knowing misap-
propriation—must be proven clearly and convincingly,
nearing the point of beyond a reasonable doubt, and where
App. 38
doubt exists, respondent should be given the benefit of the
doubt, as set forth later in subpoint B.
The Office of Attorney Ethics must prove knowing
misappropriation to the Court by clear, convincing, posi-
tive proof, mere inferences and apparent conclusions will
not suffice. This burden is imposed on the OAE so that
the irreparable result of disbarment ‘‘shall not be reached
by a mere balancing of doubts or probabilities, but by clear
and unequivocal proof_of_facts ...’’ Lepre v. Caputo,
131 N.J. Super. 118, 124 (Law Div. 1974) (Discussing the
clear and convincing standard in a proceeding reviewing
a candidate’s election petition.). Therefore, the Office of
Attorney Ethics’ proof must be such that it
... produces in the mind of the trier of fact a firm be-
lief or conviction as to the truth of the allegation
sought to be established, evidence so clear, direct and
weighty and convincing as to enable the fact-finder to
come to a clear conviction without hesitancy of the
truth of the precise facts in issue.
In Re Boardwalk Regency Casino License Application, 180
N.J. Super 324, 339 (App.Div. 1981), modified, 90 N.J.
361, (Casino Licensing Proceeding which defined clear and
convincing evidence).
That is not the case here, however, as the evidence in
the record clearly demonstrates. The Court need look no
further than the admission of the OAE when Mr. MeCor-
mick, before the DRB, conceded that he could not prove
knowing misappropriation. He stated, ‘‘I very candidly,
and the Court in that instance, told him, | didn’t thi: k I
could show knowing misappropriation.’’ (‘‘'T'32-22”? April
16, 1986).
App. 39
While that quote alone does not make it clear whether
Mr. Cormick is discussing the Noonan case, or the case at
issue, subsequent elucidation clears any discrepancy. On
the next page of the transcript Mr. Sokol discusses the
issue with Waldron Kraemer, Esq., a member of the DRB,
and clearly states, ‘‘I think what Mr. Cormick says is ex-
actly true. He could not prove knowing misappropriation
because the facts weren’t there. Nor can he prove that—
what he attempts to portray as a set up, not looking, the
blissful ignorance scenario, was done for that purpose.’’
(‘*T34-22, to ‘*T35-4’’ 4/16/86). Mr. Cormick did not ob-
ject to this characterization, which also was accepted by
the Board, but merely went on to explain the difference
between Noonan and Wilson. (‘*T35-13’’, 4/16/86).
It is this distinction that presents the critical issue in
the case at bar.
In Noonan, supra, the DRB found that Noonan’s per-
sonal problems, i.e. aleoholism, extremely heavy workload,
and marital problems, affected his ability to practice law,
but he subsequently appeared to have ‘‘gotten his life to-
gether’’ which lead the DRB to conclude that he was now
fit to continue practice under the supervision of another
attorney. Jd. at 159. The DRB further agreed with the
District Ethics Committee’s conclusion that there is no
evidence presented indicating that the respondent inten-
tionally defrauded his clients. This Court then went on
to find that mitigating factors outweighed the offenses,
concluding that respondent’s misconduct was not based on
dishonesty, venality or immorality, nor did his conduct
lead to a conclusion that his good character and fitness have
been permanently or so irretrievably lost as to warrant
App. 40
disbarment. Jd. Finally, the DRB pointed to his prior
good record and reputation and contrition, and that there
was full reimbursement to two clients whose funds were
taken.
Just as Noonan stands for the proposition that dis-
barment is invariable, regardless of excuse, when there has
been knowing misappropriation, it also stands for the prop-
osition that when misappropriation has not been knowing,
but has been negligent, disbarment is not appropriate, and
some lesser penalty should be imposed. Furthermore,
Noonan suggests that the penalty should take into consid-
eration mitigating factors. Noonan, supra, at 161.
In this case, the OAE could not prove knowing mis-
appropriation, by their own admission. A comparison of
the facts of Noonan with those in Skevin make that con-
clusion more apparent. Noonan’s marital difficulties,
heavy workload, and drinking problem pale by comparison
to Respondent’s problems. Mr. Skevin’s marital difficul-
ties completely estranged him from three of his five chil-
dren, and of the other two children, one was diagnosed as
a paranoid schizophrenic making iim permanently dis-
abled, and the other was a drug addict in constant trouble.
His sister was also diagnosed as a paranoid schizophrenic,
confirming the fact that this was a heredital problem. (‘I‘his
was the disease that afflicted and eventually killed Mr.
Skevin’s mother while he was still an infant, and now per-
manently disabled his sister and sons.) In addition to his
rapidly growing practice collapsing when he lost his bid
for re-election in 1981, he simultaneonsly experienced sig-
nificant medical problems including a debilitating back
problem which often left him crippled for weeks at a time,
Gos anneal sea:
’ encompass a knowing misappropriation of funds...
App. 41
skin cancer, and a thyroid problem resulting in surgery
to remove two-thirds of his thyroid gland.
These numerous personal tragedies suffered by Mr.
Skevin support his contention that his state of mind was
such that he was unaware of the shortages in his accounts.
It is easy to understand that he was so distracted that he
paid no attention to his accounts unless someone called a
problem to his attention, which they did not.
The case of In the Matter of Leroy C. Gipson, D-74,
slip op. (Supreme Court of N.J. June 17, 1986), recog-
nized that external factors, such as the rigors of practice
and severe psychological strain, might ‘‘bear upon respon-
dent’s ability to formulate the state of mind necessary to
9
In that case, the Court implied that judgment of criminal
conviction was proof positive of the necessary state of
mind to find knowing misappropriation. Gipson, slip op.
at 3. In this case, however, there is no criminal convic-
tion to foreclose the consideration of these factors as evi-
dence that Mr. Skevin could have been distracted to the
point where he did not knowingly misappropriate funds.
Any reasonable analysis of these facts compared to Noonan
would lead one to conelude that the distractions on Skevin
were far greater, making his lack of knowledge for his
acts more credible.
Furthermore, although Respondent suffered stagger-
ing tragedies, he continued to provide quality legal services
for his clients. The respondent in Noonan did not, yet
the Court did not disbar him. By comparison, Mr. Skevin’s
only failure was in the bookkeeping aspect of his practice.
This Court has held that ‘‘it is the mere act of taking
your client’s money knowing that you have no authority
App. 42
to do so that requires disbarment’’. Noonan, supra at 160.
Skevin has produced credible evidence that he did not
know that he was taking his clients’ money. Despite the
fact that the balances were oftimes low, his course of con-
duct over several years of depositing his own personal
funds and combining with trust funds to insure proper
balances, and the absence of notice of deficiencies from
his bank, is sufficient to support his allegations that he
did not know. The OAE produced no evidence of the con-
trary, nor could they disprove this long term course of
conduct.
The fact that he experienced a trust account outage
when he first started the practice in 1967, and thereafter
maintained the practice of depositing personal funds in
his trust account, lends greater credibility to his position.
in summary, if the respondent in Noonan did not
knowingly take clients’ trust funds, neither did Skevin,
because the weight of evidence in support of Skevin’s
position is greater than that in Noonan.
Contrary to the analysis set forth in Noenan, the DRB
in Skevin’s ease stated that, ‘‘professed ignorance .
will, in the future, be viewed skeptically as an excuse for
imperiling the integrity of client trust funds.’’ (DRB
Report, May 23, 1986, p. 20). If the reasoning of the DRB
is followed, it will represent a substantial departure from
current law, and a reckless disregard for the due process
rights of attorneys who come before them for discipline.
The DRB wants to create a presumption of guilt be-
cause ‘‘professed ignorance’’ could be used as a conveni-
ent excuse by attorneys to avoid being held as knowingly
misappropriating trust funds; however, the law provides
App. 43
that the burden is on the OAE to prove knowing misap-
propriation by clear and convincing evidence; i.e. the at-
torney is innocent until proven guilty. R. 1:20-11(g).
Furthermore, the DRB’s position that it would be
difficult to analyze the facts of each case to prove know-
ing misappropriation is a virtual indictment of our ju-
dicial system and an abandonment of their responsibilities.
Anglo-Saxon Jurisprudence has long recognized gross neg-
ligence as a distinct standard, see, Coggs v. Bernard,
2 Ld. Raym. 909, 92 Eng. Rep. 107 (1704); and New Jer-
sey Courts have recognized the distinction between gross
negligence and willful, knowing conduct. Cohen v. Press,
31 N.J. Super. 45, 50 (1954); Foldi v. Jeffries, 93 N.J.
533, 549 (1983); Tessler & Son, Inc. v. Sonitrol Security
Systems, 203 N.J.S. 477, 484 (1985); Accord, Draney v.
Bachman, 138 N.J.S. 503, 513 (1976); Brogan Cadillac,
etc. v. Central Jersey Bank & Trust, 183 N.J.S. 333, 337
(1981). For the DRB to claim that they are unable to
distinguish between knowing conduct and gross negligence
while our Courts have been able to deal with the problem
for almost 300 years, is a specious argument that should
be summarily rejected by this Court.
In summary, Wilson requires a ‘‘knowing’’ use of
client money as if it were the attorney’s own. Wilson,
supra, at 453. As set forth, the OAE has failed to prove
Mr. Skevin’s actions were ‘‘knowing’’ and has admitted
such lack of proof. This case should therefore be judged
by the standards set forth in Noonan, wherein the Court
held that gross negligence is not sufficient grounds for
disbarment. Noonan, 102 N.J. at 160-161. For these rea-
sons, Wilson does not control and Noonan indicates that
App. 44
if a penalty is to be imposed upon Mr. Skevin, it must
be one other than disbarment.
B. All doubts must be resolved in favor of the Respondent.
If there is any doubt that Mr. Skevin acted without
knowing he was misappropriating clients’ trust funds due
to the distractions he faced, that doubt must be resolved
in favor of Respondent. In 1957, an attorney was accused
of improperly using settlement funds. In re White, 24
N.J. 521 (1957). The Court reviewed all circumstances
and testimony in that case and concluded that, ‘‘[a] care-
ful examination of the testimony leaves us in doubt.’’ Id.
at 524. The Court held that the doubt was heightened by
the respondent’s record of 19 years of practice without a
blemish. The Court concluded that, ‘‘Respondent is en-
titled to the benefit of that doubt.’’ Jd.
Later that same year, the Court again examined an
attorney ethics proceeding. In that case, the crucial fac-
tual determination concerned what the attorney believed
the value of a piece of property. In re Quinn, 25 N.J. 284,
291 (1957). The value of the property was the figure
upon which the contingent fee in that case would be based.
In evaluating the mens rea of the attorney, the Court held,
‘‘[t]he situation perhaps is not free from some doubt,
but even so the doubt must be resolved in respondent’s
favor.’’ Id. at 291.
It is clear from White and Quinn that any doubt as to
whether Mr. Skevin acted negligently and did not know-
ingly misappropriate funds must be resolved in his favor.
This case is more compelling than White. Prior to the
within action, Mr. Skevin has practiced without a blemish
App. 45
on his record since his admission to the bar in 1956. More-
over, he has a long record of distinguished public service.
This heightens the doubt that must be resolved in his
favor. White, supra. at 524. That he suffered staggering
tragedies, that neither Respondent in White nor Quinn
were subject to, casts further doubt on the accusation
that his acts were knowing. These doubts must also be
weighed in Respondent’s favor.
C. Disbarment is not the property penalty in the case at
bar, and mitigating factors should permit Respondent
to continue to practice.
In the case at bar, in the absence of clear and con-
vineing proof of knowing misappropriation, the penalty
of disbarment should be rejected. This is what Noonan,
as previously discussed, and other recent cases have made
clear.
In re Hollendonner, 102 N.J. 21 (1985), involved an
‘‘appalling’’ disregard of proper record keeping proced-
ures and the misuse of escrow funds which the Court rec-
ognized as an analagous to client trust funds, noting
‘¢ |. . an attorney fund to have knowingly misused es-
crow funds will confront the disbarment rule of In re
Wilson ...’’ (citations omitted). However, the court did
not apply the Wilson rule ‘‘in view of the absence of
clear and convincing evidence that respondent invaded
the escrow funds with the knowledge that the use of funds
is improper.’’ Instead, they imposed a one-year suspen-
sion. Id. at 28-29.
In re Hennessy, 93 N.J. 358 (1983), involved a find-
ing that ‘¢ ... respondent’s problem stems from flagrant
App. 46
record keeping errors combined with an apparent lack
of comprehension of the proper operation of an attorney’s
accounts.’? The Court independently concluded that the
record did not clearly and convincingly show that respon-
dent used the funds for his own or any improper purpose,
and imposed a public reprimand. Id. at 360-61. In the
case at bar, the OAE provided no evidence of Respon-
dent’s use of trust funds for any improper purpose.
These three recent cases, all factually similar to the
case at bar, evidence that knowing misappropriation must
be clearly and convincingly established to warrant the
penalty of disbarment, a sanction so severe that it must
only be
... reserved for the case in which the misconduct of
an attorney is so immoral, venal, corrupt or criminal
as to destroy totally any vestige of confidence that
the individual could ever again practice in conformity
with the standards of the profession.
In re Templeton, 99 N.J. 365, 376 (1985).
Clearly, such is not the case in this instance. The evi-
dence is in fact to the contrary. Sheuld Respondent be
permitted to practice law, there is every indication he
would conform to the standards of the profession. As set
forth in Mr. Flood’s Affidavit (R-30), Mr. Skevin con-
tinues to render competent legal services to his clients.
For this reason, disbarment is too severe a penalty to
impose.
Recent cases have also shown that in the absence of
proof of knowing misappropriation, the court is willing
to consider mitigating factors in determining the appro-
priate disciplinary action. In re Cornish, 98 N.J. 500
App. 47
(1985). In Cornish, the Court found less than knowing
misappropriation, and considered as mitigating a ‘‘ ...
doctor’s opinion that the respondent was a basically hon-
est person who succumbed to overwhelming psychological
pressures ...’’ which had impaired respondent’s reason-
ing. Id. at 512. The court stated that, ‘‘ .. . mitigating
factors may warrant a discipline less than disbarment.’’
Id. at 511.
The DRB in Hollendonner recognized mitigating fac-
tors in determining the appropriate sanction. Among
these factors were the respondent’s prior history of no
disciplinary action, his admission of wrongdoing, his cor-
rective steps to bring his records into compliance with the
rules, and his activity in the community, both politically and
professionally, Hollendonner, supra, at 27, all applicable
to Mr. Skevin.
Furthermore, as set forth in the model standards for
imposing lawyer sanctions R. 9.32, adopted by the Ameri-
ean Bar Association in February of 1986 (ABA/BNA
Lawyer’s Manual on Professional Conduct 01 :842) :
9.32 Factors which may [be] considered in mitigation.
Mitigating factors include:
(a) Absence of a prior disciplinary record ;
(b) Absence of a dishonest or selfish motive;
(c) Personal or emotional problems;
(d) Timely good faith effort to make restitution or to
rectify consequences of misconduct;
(e) Full and free disclosure to Disciplinary Board
or cooperative attitude toward proceedings ;
(f) Inexperience in the practice of law;
(g) Character or reputation;
App. 48
(h) Physical or mental disability or impairment;
(i) Delay in disciplinary proceedings ;
(j) Interim rehabilitation;
(k) Imposition of other penalties or sanctions;
(1) Remorse;
(m) Remoteness of prior offenses.
Model Rules of Professional Conduct, Rule 9.32 (Adopted
1986).
Mr. Skevin has undergone a variety of personal tra-
gedies as are fully set forth in the record and previously
herein, which briefly include a painful divorce, alienation
from his children, the commitment of his sister to a mental
institution, the diagnosis of his son as being schizophrenic
(indicating a hereditary family problem), drug problems by
another son (later diagnosed as also being schizophrenic),
removal of a portion of his thyroid, back problems, skin
cancer (melanoma), and loss of his public office.
Mr. Skevin has practiced under a proctor since this
court’s order. As Mr. Flood’s Affidavit (R-30) shows,
Mr. Skevin is a competent practioner and renders high
quality services to his client. There is no indication he will
repeat his negligent bookkeeping practices, as his own Af-
fidavit of August 6, 1986 shows, and he is willing to enter
into a practice where he will have no financial or book-
keeping responsibilities.
Mr. Skevin has repaid all the funds due and owing to
his clients and has suffered irreversable and irreparable
damage professionally, financially, and personally by the
premature press coverage of this case which effectively
negated his ability to practice during the past two years,
_
App. 49
and eggregiously deprived him of his right to due pro-
cess. (See Point Il, infra). As set forth in his affidavit,
what was a flourishing four-man practice has now become
a one-man practice with his wife as his only secretary.
Additionally, he has shown himself to be repentent.
The mitigating factors in the case at bar are over-
whelming, from the numerous personal tragedies suffered
by Mr. Skevin, to his prior unblemished record, to his sub-
sequent compliance with the record keeping procedures,
to the damages he has already suffered. The failure to
consider this plethora of evidence would be to unfairly
ignore the particular circumstances of this case, thereby
judging Mr. Skevin without regard to the real-life factors
which affected his conduct. These factors were explained
in the affidavit of Dr. Levine (Exhibit R-24).
The facts of this case call for a lesser penalty than
disbarment, and taking mitigating factors into considera-
tion, Mr. Skevin should be allowed to continue to practice.
POINT II
THE VIOLATIONS OF THE CONFIDENTIAL
ITY RULE ARE VIOLATIONS OF MR. SKEV-
IN’S RIGHT TO DUE PROCESS AND SUCH
A BLATANT AFFRONT TO THE INTEGRITY
OF THE COURT, THA HIS CASE SHOULD BE
DISMISSED OR ANY PENALTY IMPOSED
MITIGATED.
(Not considered below)
Courts across the United States differ in their views
as to whether an attorney disbarment proceeding is a crim-
inal or a civil procedure. The New Jersey Supreme Court
has held that it is neither civil nor criminal, but suit generis.
App. 50
In re Logan, 70 N.J. 222, 227 (1976). The Court explained
at length:
But the proceeding is not criminal in nature. It is an
exercise of the summary disciplinary jurisdiction of
this Court over attorneys and counsellors, as officers
of the Court. Strong and Sons v. Mundy, 52 N.J. Eq.,
833. It is civil in character, or perhaps, it is more ac-
curate to say it is sue generis, for it partakes, essen-
tially, of an inquiry to determine whether the delin-
quent practioner is unworthy of the trust and confi-
dence which attend the relationship of attorney and
client. . . . The object of disciplinary proceedings is
not alone to punish the attorney guilty of malpractice ;
the primary purposes are to compel the attorney to
deal fairly and honestly with his client, and to deter-
mine whether he has, by his conduct, proved himself
unfit to be entrusted with the duties and responsibility
of the office of attorney. [citations omitted].
Id., quoting, In re Ries, 13 N.J.L. 559, 562 (1944); State v.
Merskt, 487 A.2d 710, 714 (N.H. 1981).
Despite that such proceedings are neither criminal
nor civil, the attorney facing disbarment is entitled as a
matter of right to procedural due process. In re Ruffalo,
390 U.S. 554, 550, 88 S.Ct. 1222, 20 L. Ed. 2d. 117, 122
(1968), reh’g denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L. Ed.
2d. 874 (1968). See also Logan, supra, at 228.
In Erdmann v. Stevens, 458 F. 2d. 1205 (2d Cir. 1972),
the Court held that under New York law, a disciplinary
proceeding is more akin to a criminal action than a civil
action because loss of an attorney’s license represents loss
or that attorney’s livelihood, and threatens loss of pro-
fessional reputation, even if a penalty less than disbar
ment is imposed. Jd. at 1209-10.
Oe OO ER 6 ee OD OL ee an
App. 51
While New Jersey Courts do not consider disciplinary
proceedings to be of a criminal nature per se,! the N.J. Su-
preme Court has held on numerous occasions that all ad-
ministrative proceedings must be conducted in conformance
with due process. ‘‘Administrative Hearings and contested
cases must operate fairly and conform with due process
principles’’. In re Kallen, 92 N.J. 14, 25, quoting, Laba v.
Newark Bd. of Educ., 23 N.J. 364, 382 (1957). This re-
quires principles of basic fairness be observed and adequate
procedural protections be afforded. Jd. at 25. These
rights are guaranteed by the Fifth and Fourteenth Amend-
ments. David v. Strelecki, 97 N.J. Super. 360, 369, rev’d
on other grounds, 51 N.J. 563 (1968).
While the Court often cites to the need for due pro-
cess, it is a concept more easily espoused than explained.
The Appellate Division has said:
Due process in its constitutional sense is little more
than a metonym for fair play. [citation omitted] It
connotes fundamental fairness. Due process is an ele-
ment which, when missing, produces the reaction ac-
cording to that which is ‘‘shocking to the universal
sense of justice.’’ United States v. Russell, 411 U.S.
423, 432, 93 S.Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973).
State v. Lagnella, 144 N.J. Super. 268, 284 (1976).
In examining the standard of due process necessary
in license revocation proceedings, the Court held that re-
voking one’s drivers license affects drivers in a serious
way, and may threaten their ability to earn a livelihood.
‘However, in /n re Fleischer, supra, the dissenting Justice
likened disbarment to a criminal proceeding due to the severity
of the penalty.
App. 52
Therefore, such proceedings must meet incidents of fair-
ness underlying due process. In re Arndt, 67 N.J. 432,
436 (1975); David v. June Streleckt, 51 N.J. 563, 566
(1968). The Court has held this is so even though holding
a license is a privilege rather than a right. Bechler v.
Parsekian, 36 N.J. 242, 256-57 (1961). If proceedings in-
volving the loss of a driver’s license are subject to such
a high degree of due process because they entail the pos-
sibie loss of one’s livelihood, then disbarment proceedings
must undergo at least the same scrutiny, as disbarment
inevitably affects the attorney’s livelihood.
In the case at bar, numerous rights of Mr. Skevins’
were violated.
A. Mr. Skevins’ Right To Privacy Was Violated.
The Rules of the Court provide:
All proceedings conducted and records made pursuant
to f. 1:20 shail be confidential and shall not be dis-
closed to or attempted by anyone except as authorized
by these Rules or as provided by the Supreme Court
and as follows:
(1) On the scheduling of oral argument for final
discipline by the Supreme Court, in which event the
recommendation of the Board that is the subject there-
of, together with any briefs filed pursuant to an Order
of the Court, shall remain public; ...
R.1:20-10 (a).
Oral argument was scheduled on May 29, 1986. How-
ever, as set forth in the affidavit of John M. Skevin, Esq.,
numerous articles concerning this case appeared in various
New Jersey and New York papers prior to that date.
Publicity was not limited to print media, as commentaries
App. 53
on television also appeared. (See Affidavit of John M.
Skevin, Esq., August 6, 1986).
The rule itself reads that ‘‘all proceedings conducted
and records made pursuant to R. 1-0 shall be confidential
and shall not be disclosed or attended by anyone .. .’’
It provides that Mr. Skevin had a right to privacy prior
to any release of this information. The New York Court
of Appeals has dealt with a similar issue. Matter of
Dondi, 63 N.Y. 2d 331, 482 N.Y.S. 2d 431, 472 N.E. 2d 281
(1984). In that case, also an attorney disciplinary matter,
the grievance committee obtained sealed records of a prior
criminal proceeding involving that attorney. That pro-
ceeding had been terminated in the attorney’s favor. The
Court held that substantial damage to the attorney’s right
to privacy had occurred because the grievance committee
had not complied with proper proceeding in obtaining
those records. The Court held that the only viable remedy
was to dismiss the case. J/d., 482 N.Y.S. at 4382.
Florida has reached a like determination. Under the
disciplinary rules of that state, when information con-
cerning a confidential attorney disciplinary case is to be
revealed, the respondent is given fifteen (15) days notice
in which to protest the release of that information. In
the Florida Bar v. Rubin, 362 So. 2d 12 (Fla. 1978), the
disciplinary committee released that report prior to the
running of the fifteen (15) days, and before the respondent
had a chance to protest that release. Widespread publicity
resulted, and the Court held that in a case in which the
recommended penalty was a private reprimand, and the
respondent had been damaged by the unwarranted pub-
licity, the inexcusable breach on the part of the committee
could only be remedied by dismissal of the case. J/d. at 17.
App. 54
Rubm is similar to the case at bar. Numerous
breaches of confidentiality have taken place, as evidenced
by the articles cited to earlier, and as addressed in letters
dated September 3, 1985 and May 6, 1986 by Judge Her-
bert. (Exhibits to Affidavit of John M. Skevin, Esq.,
August 6, 1986). In the August 13, 1985 edition of The ©
Bergen Record, (Affidavit of John M. Skevin, August 6,
1986) the OAE was quoted as saying, ‘‘I want to see this
guy get what he deserves, at least in my opinion.’’ These
articles, and others listed earlier herein, resulted in much
undue and painful publicity to Mr. Skevin, as set forth
at length in his Affidavit. Despite that misrepresenta-
tions made by the Schraders maligned Respondent, he
respected the confidentiality of these proceedings and did
not defend himself. Respondent suffered damages as a
result of this. It is clear, therefore, that Mr. Skevin’s
due process right to privacy has been blatantly violated.
Due process is so important a right, that the New
Jersey Supreme Court has held that where the attorney/
client privilege is violated by improper eavesdropping by
public officials, dismissal of the prosecution might some-
times be necessitated. State v. Sugar, 84 N.J.1, 19, (1980).
The Court expiained:
In either case official intrusion would prevent defense
counsel from providing constitutionally effective as-
sistance. Because these more egregious violations
do not involve the disclosure of evidence, an exelu-
sionary remedy would be insufficient to vindicate
defendant’s right, deter official misconduct, or main-
tain judicial integrity. A dismissal of the prosecution
would thus be necessary as the only means to avoid
a deniel of one of the fundamental requirements of
due process of law.
Id.
App. 59
While the Court did not find it necessary to dismiss
the case, that it would even consider doing so in a murder
case shows the importance of procedural due process in
the judicial system.
In the case at bar, Mr. Skevin’s due process rights
have been violated. The affidavit of Mr. Skevin sets forth
the damages he has suffered due to this violation of his
rights. Because his rights have been violated so out-
rageously, Mr. Skevin is entitled to some form of relief.
This relief ought to take the form of either dismissal of
the within action, or mitigation of penalty.
B. Mr. Skevin’s Right To a Fair Hearing and Determina-
tion Have Been Prejudiced.
In Landmark Communications v. Commonwealth, 217
Va. 694, 233 S.KE. 2d 120 (1977), the Virginia Supreme
Court recognized that breach of the confidentiality of cer-
tain proceedings is ‘‘so contrary to the public interest that
it constitutes a subtantive evil of immediate and serious
peril to the orderly administration of justice, and there-
fore, should be punishable.’’ 235 S.E. 2d at 127, rev’d
and remanded, 435 U.S. 829, 98 S.Ct. 1535, 56 L. Ed. 2d 1
(1978) (The Court upheld this doctrine, but did not find
clear and present danger in that case).
Likewise, the New Jersey Supreme Court has held
that the State has a substantial interest in insuring the
fairness of judicial proceedings. Jn re Hinds, 90 N.J.
604 (1982). Additionally, in State v. Sugar, the Court
declared that fundamental fairness prohibits the conduct
by law enforcement officials that would pervert the judi-
cial process and turn it into a prosecutorial tool. ‘‘To
App. 56
allow such conduct would erode public confidence in the
impartiality and fairness of the judicial process.’’ Jd. at
14-15, quoting, State v. Molnar, 81 N.J. 475, 485 (1980).
While it is generally held that prejudice is a concern
only in a jury trial, See, e.g., In re Hinds, 90 N.J. 604, the
Court still must consider the problem herein. First, mem-
bers of the DRB were not ail attorneys or experienced
jurists. Several of them were ‘‘lay persons’’. That
numerous articles appeared in the newspapers urging Mr.
Skevin’s disbarment just prior to the DRB decision is
significant. (Articles appeared on June 8, 1984; August
26, 1984; August 13, 1985; May 6, 1986; May 31, 1986; June
1, 1986; June 5, 1986; and June 22, 1986. Judge Herbert
rendered his decision on March 12, 1986 and the DRB and
May 23, 1986). These members of the DRB should not be
evaluated in the same way as Judges or other jurists. They
are lay people and are subject to the same influences as
are present in a jury situation. Therefore, the improper
publicity prior to the rendering of that decision made it
difficult, if not impossible, for Mr. Skevin to obtain a fair
review.
Secondly, a more complex and difficult analysis also
indicates that Mr. Skevin cannot be given a fair review
under these circumstances. The Court in In re Wiison
indicated that one of the most important concerns of at-
torney disciplinary hearings is to maintain the faith of
the public in the New Jersey Bar. ‘The perceptions of the
general public therefore play an important role in the
Court’s decisions. However, due to the improper publicity
this case has received, the general public has already been
persuaded that Mr. Skevin is guilty and should be dis-
barred, or has been disbarred. (See Affidavit of John
App. 57
M. Skevin, Esq., August 6, 1986). The court is now caught
between the proverbial rock and the hard place. In order
to maintain public confidence, the court may feel it must
disbar Mr. Skevin, whether or not he is deserving of dis-
barment. The publicity in this case has therefore made
it impossible for Mr. Skevin to receive a fair determina-
tion and the proceeding herein ought to be dismissed.
This dismissal would advance the important policy of
enforcing the integrity of the confidentiality rule. In
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.
2d 600 (1966) a criminal matter, the United States Su-
preme Court held that: ‘‘If publicity during the proceed-
ings threatens the fairness of the trial, a new trial should
be ordered. But we must remember that reversals are but
pallitives; the care lies in those remedial measures that
will prevent the prejudice at its inception. The Court
must take such steps by rule and regulation that will pro-
tect their processes from prejudicial outside interference.’’
Dismissal would also serve to advance the important
policy of complainants maintaining confidentiality. As is
clear from the record and recognized by Judge Herbert
(See letters from Judge Herbert, September 3, 1985 and
May 6, 1986, respectively Exhibits ‘‘C’’ and ‘‘D’’ of the
Affidavit of John M. Skevin, Esq., August 6, 1986 and also
attached hereto), the Schraders repeatedly violated the
confidentiality rules, despite repeated warnings by the
Office of Attorney Ethics and the DRB. (Said letters are
attached for the Court’s convenience).2, Only dismissal
The logic of having a rule which_permits release of the
DRB report once the case is scheduled for oral argument, when
(Continued on following page)
App. 58
would make it clear to other complainants that the rules
of confidentiality must be respected, and the Court should
deliver this message by dismissing the within matter.
CONCLUSION
FOR the reasons stated herein, Mr. Skevin should not
be disbarred, all proceedings against him should be dis-
missed, or in the alternative, any penalty imposed upon
him should be mitigated based on the facts of this case.
Respectfully submitted,
GREENSTONE & SOKOL, ESQS.
By: /s/ Leon J. Sokol
Dated: August 11, 1986
(Continued from previous page)
the DRB requests complainants to maintain confidentiality, is
unclear. Respondent suggests that the Court re-evaluate Rule
1:20-10(a). There appears to be no good reason to make these
facts public prior to this Court's final determination, and such
undue publicity has damaged Respondent. Because he was a
public figure, the press seized upon this case. As a result, Mr.
Skevin’s long history of public service worked against him,
diminishing his ability to practice.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.