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IN THE MATTER OF PAUL T. SMOCK, AN ATTORNEY AT LAW

Supreme Court of New Jersey1981-06-19
86 N.J. 426

Summary

Holding. The Court suspended Smock from the practice of law for two years, effective retroactively to October 2, 1979, declining to apply the strict disbarment rule established in Wilson retroactively to conduct that predated that decision.

Attorney Smock misappropriated $4,500 in client funds. The Court acknowledged that Smock presented numerous mitigating factors that would ordinarily support a lighter disciplinary sanction, including his financial distress, immediate intention and ability to repay the funds, unexpected financial reversals beyond his control, and his history of public service and reduced fees for indigent clients. However, the Court's recent decision in Wilson established a strict rule requiring disbarment in all misappropriation cases.

The Court determined that applying the Wilson standard retroactively would be manifestly unfair, as Smock's conduct preceded that decision. The Court noted that retroactive application would not serve Wilson's deterrent purpose. Under the disciplinary standards that existed before Wilson, the Court found that Smock's circumstances warranted a substantial suspension rather than disbarment. The Court emphasized that had Smock's conduct occurred after Wilson, disbarment would presumably follow.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Retroactive application of disciplinary standards to attorney misconduct
  • Misappropriation of client funds and appropriate sanctions
  • Mitigating factors in attorney discipline cases
  • Distinction between pre-Wilson and post-Wilson disciplinary standards

Procedural posture

The Court reviewed an attorney disciplinary matter involving misappropriation of client funds, considering whether to apply the newly established strict disbarment standard from Wilson retroactively to the respondent's conduct.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

In this matter respondent misappropriated $4,500 of his client’s funds. He asserted (and, in varying degrees, proved) the complete array of mitigating circumstances which has traditionally warranted discipline less than disbarment, but which had been substantially rejected in In re Wilson, 81 N.J. 451 (1979). Respondent’s conduct, however, predated Wilson. In view of the radical change effected by Wilson, with its strict result of disbarment in misappropriation cases as compared to this Court’s treatment of such matters prior thereto, we believe it would be manifestly unfair to apply Wilson retroactively. A significant, although not paramount, element of the Wilson doctrine was its deterrent effect on the bar. Obviously, retroac tive application does not in any way serve that deterrent purpose. We note, however, for the guidance of the bar and the public, that if respondent’s conduct had occurred after our decision in Wilson he presumably would be disbarred.

Reviewing this matter in accordance with the standards which applied prior to Wilson, it is apparent that many of the factors which previously called for discipline less than disbarment are present. Respondent took the funds not only while in need, but when he fully intended, and reasonably expected, to repay them shortly thereafter, which he did. Furthermore, the circumstances which led to the misappropriation include financial reverses totally unexpected (and not at all attributable to respondent, including the fact that a very substantial fee, already earned, was not paid because of the revolution in Iran), inability to meet pressing needs of his family (including an impending mortgage foreclosure), a prior history of apparent selfless support of a now-deceased family member, service to the public in the form of reduced or forgiven fees to near-indigent clients and charitable groups, along with impressive positions of public service. Respondent , was totally candid and cooperative during all of the ethics proceedings.

For all of these reasons, we believe that a substantial suspension, rather than disbarment, would have been the remedy before Wilson.

Respondent is hereby suspended from the practice of law for a period of two years, retroactive to the date of the original suspension.

For suspension —Chief Justice WILENTZ, and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER — 6.

Opposed —None.

ORDER

It is ORDERED that PAUL T. SMOCK of Blairstown be suspended from the practice of law for two years and until the further order of this Court, effective October 2, 1979; and it is further

ORDERED that respondent reimburse the Administrative Office of the Courts for the costs of the transcripts in this matter; and it is further

ORDERED that respondent continue to be restrained and enjoined from practicing law during the period of his suspension and that he continue to comply with all regulations of the Disciplinary Review Board governing suspended, disbarred and resigned attorneys.