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Matter of Freimark12/5/1997
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In the Matter of Lewis B. Freimark, An Attorney at Law (D-75-97)
Argued October 20, 1997 -- Decided December 5, 1997
PER CURIAM
Lewis B. Freimark was admitted to the bar of New Jersey in 1980. His law office is in West Caldwell. A random compliance audit of his attorney records conducted by the Office of Attorney Ethics (OAE) disclosed multiple record-keeping problems. A proctor was appointed to supervise Freimark's practice. The proctor was given exclusive check-signing authority over Freimark's attorney accounts.
A Special Master heard the ethics complaints filed against Freimark. The Master recommended to the Disciplinary Review Board (DRB) that Freimark be disciplined for knowing misappropriation of client funds and for his failure to notify the OAE that he had been disciplined as an attorney in New York. The DRB recommended to the Court that Freimark be disbarred for knowing misappropriation of client funds.
The ethics complaints against Freimark involved clients Arlene Snyder, Amanda Alongi, George P. Caso, Felipe Leon, and Eleanor Markov. The Court found repeated instances in which Freimark improperly disbursed funds to himself from his trust account. Funds from one client were used to replenish funds for another client.
Freimark's explanations for the improper withdrawals included negligent record-keeping, unrecorded "loans" that were allegedly repaid through use of the client funds, and an attempt to "protect" the funds of one client by removing some of them from his trust account. All of Freimark's explanations were not found to be credible by the DRB or the Court.
HELD : In the light of respondent's knowing misappropriation of client funds, he must be disbarred.
1. Because the Court determined that Freimark should be disbarred for knowing misappropriation, it did not consider the count that dealt with Freimark's failure to notify the OAE of the imposition of discipline on him by New York. (pp. 15-16)
2. In re Wilson states that a misappropriation of client funds must be "knowing" to warrant disbarment of an attorney. That standard must be met by clear and convincing evidence. (pp. 16-17)
3. Although respondent is correct that shoddy record-keeping alone will not result in a Wilson disbarment, this case goes well beyond poor record-keeping. The record discloses a pattern--on depositing settlement proceeds into his trust account, respondent would advance sums to himself, thereby depleting that client's account. Subsequently, respondent replenished that client's account by invading trust funds received on behalf of other clients in unrelated matters. (pp.17-19)
4. Respondent's claim that no client was injured because all of the money was paid back does not exempt him from the application of Wilson. Even when a lawyer "borrows" trust funds without permission, disbarment must follow. (pp. 19-20)
It is ORDERED that respondent be DISBARRED from the practice of law.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in the Court's opinion.
PER CURIAM
This disciplinary proceeding results from a random compliance audit of the trust funds of respondent, Lewis B. Freimark, by the Office of Attorney Ethics (OAE) pursuant to Rule 1:21-6(c). As a result
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