The opinion of the court was delivered by WILENTZ, C.J.
In this case, respondent knowingly used his clients' money as if it were his own. We hold that disbarment is the only appropriate discipline. We also use this occasion to state that generally all such cases shall result in disbarment. We foresee no significant exceptions to this rule and expect the result to be almost invariable.
Of the eight complaints filed against respondent with District Ethics Committee VIII (Middlesex County), two involved misappropriation. In one, respondent failed for almost two years to turn over $23,000 — the proceeds from the sale of a house — to the client. After the ethics complaint was filed, respondent paid the client but never accounted for the location or use of the funds in the interim. In the other, respondent obtained money for a client in the form of a $4,300 check to the client's order. Respondent then forged the client's endorsement, deposited the proceeds in his own trust account, and has yet to turn the funds over to the client.
It is clear from all of this that respondent is unfit to be a lawyer. We do not, however, discuss any charges other than misappropriation since disbarment is mandated by that alone.
Misappropriation of clients' funds is both a crime (N.J.S.A. 2C:20-9 (superseding N.J.S.A. 2A:102-5, which was repealed by L. 1978, c. 95, 2C:98-2)) and a direct violation of Disciplinary Rule 9-102 of the Code of Professional Responsibility. Included in the specific commands of this rule is the requirement that "a lawyer shall * * * [p]romptly pay or deliver to the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive." DR 9-102(B)(4). Our former Canon of Professional Ethics told the lawyer not only what he must do, but what he must not do:
Like many rules governing the behavior of lawyers, this one has its roots in the confidence and trust which clients place in their attorneys. Having sought his advice and relying on his expertise, the client entrusts the lawyer with the transaction — including the handling of the client's funds. Whether it be a real estate closing, the establishment of a trust, the purchase of
It is a trust built on centuries of honesty and faithfulness. Sometimes it is reinforced by personal knowledge of a particular lawyer's integrity or a firm's reputation. The underlying faith, however, is in the legal profession, the bar as an institution. No other explanation can account for clients' customary willingness to entrust their funds to relative strangers simply because they are lawyers.
Abuse of this trust has always been recognized as particularly reprehensible:
See also In re Miller, 65 N.J. 580, 581 (1974); In re Spielman, 62 N.J. 432, 434 (1973); In re Malanga, 45 N.J. 580, 583 (1965); In re Gavel, 22 N.J. 248, 264 (1956). Recognition of the nature and gravity of the offense suggests only one result — disbarment. "Such conduct is of so reprehensible a nature as to permit of only one form of discipline." In re Ryan, 60 N.J. 378, 379 (1972).
Despite this strong condemnation, results in misappropriation
It is therefore important that we reemphasize that the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general. This reason for discipline is mentioned in some misappropriation cases and not in others. While it may only rarely have been stressed in the past, we are now inclined to view it as controlling in these cases.
We have no doubt that the bar is as anxious as we are to preserve that trust. Its preservation is essential to public acceptance of reforms that may be proposed by the bench and bar together. Mistrust may provoke destructive change. Public confidence is the only foundation that will support constructive reform in the public interest while preserving the finest traditions of the profession.
From that point of view, anything less than strict discipline in cases like this would be a disservice to the bar, the judiciary and the public.
What are the merits in these cases? The attorney has stolen his clients' money. No clearer wrong suffered by a client at the hands of one he had every reason to trust can be imagined. The public is entitled, not as a matter of satisfying unjustifiable expectations, but as a simple matter of maintaining confidence, to know that never again will that person be a lawyer. That the moral quality of other forms of misbehavior by lawyers may be no less reprehensible than misappropriation is beside the point. Those often occur in a complex factual setting where the applicability or meaning of ethical standards is uncertain to the
No one need argue whether the moral reprehensibility of this kind of behavior justifies disbarment: all admit it. The only question is whether mitigating circumstances might call for lesser discipline in particular cases. We discuss restitution first since it is relied upon most often.
In the context of professional discipline, restitution suggests an "honesty of compulsion," proving mostly that the lawyer is anxious to become a lawyer again and that he is able somehow to raise the money. Practically every lawyer facing such charges wants to remain a lawyer, but not every lawyer is able to raise the money. As early as 1915, the Supreme Court sitting en banc noted the irrelevance of this factor:
Restitution may compensate an individual complainant for the financial loss suffered; conceivably, it may partially restore the shattered faith of a particular client. It does not, however, significantly retard the subtle but progressive erosion of public confidence in the integrity of the bench and bar.
When restitution is used to support the contention that the lawyer intended to "borrow" rather than steal, it simply cloaks the mistaken premise that the unauthorized use of clients' funds is excusable when accompanied by an intent to return them. The act is no less a crime. W. LaFave & A. Scott, Criminal Law, § 89 at 653-54 (1972); see also United States v. Titus, 64 F.Supp. 55, 56 (D.N.J. 1946).
The overwhelming majority of misappropriation cases involves lawyers who undoubtedly intended to return the funds. They misappropriate initially with precisely such intent. Anticipated
Judicial consideration of restitution as a mitigating factor in disciplinary proceedings creates the impression that sanctions are proportioned in accordance with ability to pay, rather than gauged against the seriousness of the misconduct. Furthermore, according significance to restitution leads to an obvious and substantial possibility of unjust discrimination.
At worst, refusal to consider restitution in this class of cases removes an incentive for compensation of injured parties. Encouraging restitution in individual cases is a worthy purpose, but the lenient discipline needed to achieve it conflicts with the paramount goal of preserving public confidence in the entire bar. From this point of view, compensation of injured parties should not be deemed an appropriate function of our disciplinary process.
We find it similarly unpersuasive that the attorney in such a case has finally put together reliable records and brought his trust account into balance. It is 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.
The inexperience or, conversely, the prior outstanding career, of the lawyer, often considered a mitigating factor in
The considerations that must deeply trouble any court which decrees disbarment are the pressures on the attorney that forced him to steal, and the very real possibility of reformation, which would result in the creation of a new person of true integrity, an outstanding member of the bar. See, e.g., In re Harris, supra, 88 N.J.L. at 24-26. There can be no satisfactory answer to this problem. An attorney, beset by financial problems, may steal to save his family, his children, his wife or his home. After the fact, he may conduct so exemplary a life as to prove beyond doubt that he is as well equipped to serve the public as any judge sitting in any court. To disbar despite the circumstances that led to the misappropriation, and despite the possibility that such reformation may occur
For the reasons stated, we conclude that disbarment is mandated. Respondent's name will be stricken from the rolls.
For disbarment — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.
Opposed — None.
It is ORDERED that WENDELL R. WILSON of Carteret be disbarred and that his name be stricken from the roll of attorneys of this State, effective immediately; and it is further
ORDERED that WENDELL R. WILSON be and hereby is permanently restrained and enjoined from practicing law; and it is further
ORDERED that respondent comply with all the regulations of the Disciplinary Review Board governing suspended, disbarred or resigned attorneys.