Opinion
July 8, 1988.
DISCIPLINARY MATTERS
ORDER
This matter having been submitted to the Court on a joint stipulation by the Office of Attorney Ethics, respondent GEORGE T. TIERNEY, and Salim J. Balady, Esquire, counsel for respondent,
And the parties having stipulated that there are no material factual disputes which require resolution in a hearing and that the appropriate discipline to be imposed is an indefinite suspension from the practice of law,
And the parties having further stipulated to conditions that must be fulfilled prior to any reinstatement of GEORGE T. TIERNEY to the practice of law;
And the Court having determined that the proposed disposition is appropriate, and good cause otherwise appearing
It is ORDERED that the suspension of GEORGE T. TIERNEY from the practice of law, first ordered by this Court on January 8, 1979, is continued indefinitely and until further order of the Court; and it is further
ORDERED that any application by GEORGE T. TIERNEY for reinstatement to the practice of law is subject to the prior fulfillment of the conditions set forth in paragraph 7 of the stipulation; and it is further
ORDERED that GEORGE T. TIERNEY continue to be restrained and enjoined from practicing law during the period of his suspension; and it is further
ORDERED that GEORGE T. TIERNEY continue his compliance with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with suspended attorneys.
STIPULATION
Office of Attorney Ethics v. George T. Tierney, Esq.
The Supreme Court of New Jersey.
Passaic County District XI
Ethics Committee
Docket No. XIV-85-59E
On June 18, 1984, this matter was remanded temporarily to the Passaic County District XI Ethics Committee by Order of the Supreme Court of New Jersey for hearings regarding the impact of respondent's alcoholism on his misappropriation of trust funds. The hearings contemplated by that remand Order were not able to be held as a result of respondent's periodic illness and hospitalization, which illness persisted until early 1987.
In the interim, the New Jersey Supreme Court issued a series of decisions which set forth the standard for determination of an attorney's responsibility for misappropriation of client funds when alcoholism is alleged as a defense or a mitigating factor. See In re Hein, 104 N.J. 297 [ 516 A.2d 1105] (1986); In re Canfield, 104 N.J. 314 [ 516 A.2d 1114] (1986); In re Monahan [Monaghan], 104 N.J. 312 [ 516 A.2d 1113] (1986); In re Ryle, 105 N.J. 10 [ 518 A.2d 1103] (1987); and, In re Crowley, 105 N.J. 89 [ 519 A.2d 361] (1987).
On June 2, 1987, respondent was examined at the request of the Office of Attorney Ethics by Robert L. Sadoff, M.D., a forensic psychiatrist. On June 15, 1987, and on July 10, 1987, Dr. Sadoff submitted reports of his findings regarding the respondent's state of mind at the time of his misappropriation of trust funds. Dr. Sadoff's reports indicate that respondent's alcoholism did not meet the standard for exculpation set forth in In re Hein; In re Canfield; In re Monahan [Monaghan]; In re Ryle; and, In re Crowley, all supra, or the standard for exculpation set for in the New Jersey Code of Criminal Justice. [ Cf. N.J.S.A. 2C:4-1; N.J.S.A. 2C:4-2.]
The parties have reviewed and evaluated the record in this matter and agree that there are no material factual disputes encompassed by the Supreme Court's remand Order of June 18, 1984, which require resolution by a hearing before a district ethics committee. The parties further agree that this matter is ready for submission to the Court for its final decision without the submission of further briefs or oral argument.
Pursuant to these understandings, the parties stipulate and agree as follows:
BODY OF STIPULATION
1. During the period from 1974 through 1978, respondent knowingly used client funds without authority for his own purposes as follows:
Matter of Sytsma. In April, 1974, respondent received $275.00 from his clients, Sidney and John Sytsma, which funds were to be remitted to the New Jersey Realty Title Insurance Company. Respondent did not remit these funds to the Title Insurance Company, but diverted them to his own use. In April, 1976, respondent received an additional $500.00 from the Sytsmas to be held in escrow pending resolution of a title problem. Respondent did not hold these funds in escrow, but diverted them to his own use. In November, 1985, the Sytsmas presented a claim to the Clients' Security Fund of the New Jersey Bar which paid their full claim in the amount of $775.00. Respondent made full restitution to the Clients' Security Fund by payment of $775.00 in January, 1987.
Matter of Krist. In October, 1978, respondent became obligated to remit the sum of $4,100 which he was holding in his attorney trust account to the Greystone Park Psychiatric Hospital on behalf of his client, Elizabeth Krist. Respondent did not remit the escrow fund as required, but diverted that sum to his own use. In 1980, the Greystone Park Hospital (a mental institution operated by the State of New Jersey) presented a claim to the Clients' Security Fund. That claim was rejected by the Fund on the basis that the claimant was a public entity and that the patient, Elizabeth Krist, would suffer no loss of benefits due to non-payment of the claim. Respondent has not made restitution to Elizabeth Krist or to Greystone Park Psychiatric Hospital.
Matter of Van Hine-Buller. In July, 1978, respondent was entrusted by his clients, William and Beverly Van Hine and Pearl Buller, to hold $7,607.99 in escrow to be disbursed upon resolution of certain disputes between the parties. Respondent did not hold the funds in escrow as required, but diverted them to his own use. In 1979, the Van Hines and Pearl Buller presented claims to the Clients' Security Fund. The Fund paid their total claim in the amount of $7,607.99. Respondent made full restitution to the Clients' Security Fund by payment of $4,000.00 in March, 1983, and $3,607.99 in April, 1983.
2. During the period of time encompassed by the above misappropriations, respondent was an alcoholic, moderate to severe in degree, and he was subject to certain personality disorders. These conditions are described in the attached reports of Eugene V. Resnick, M.D., dated May 25, 1979; David J. Gallina, M.D., dated July 12, 1979; and, Robert L. Sadoff, M.D., dated June 15, 1987, and July 10, 1987.
3. During the period encompassed by the misappropriations, respondent's judgment and ability to conform his conduct to the law were impaired by alcoholism. This impairment, however, was not "substantial" within the meaning of In re Hein; In re Canfield; In re Monahan [Monaghan]; In re Ryle; and, In re Crowley, all supra. [ Cf., also, N.J.S.A. 2C:4-1; N.J.S.A. 2C:4-2.]
4. During the period encompassed by the misappropriations, respondent knew that he was using client funds without authority and he understood that such conduct was wrong. During this period, respondent had, at all times, the ability to conform his conduct to the law. At no time did respondent suffer a substantial loss of competency, comprehension, or will.
5. Respondent's use of alcohol caused or contributed to serious physical and personal problems. Since mid-1976, respondent has been hospitalized on more than twenty occasions for acute pancreatitis culminating in the removal of 70% of his pancreas in May, 1986. Some of these admissions included psychiatric treatment. In 1980, respondent began treatment with Earl A. Loomis, M.D., a psychiatrist specializing in treatment of alcoholism. With the assistance of Dr. Loomis and Alcoholics Anonymous, respondent ceased his use of alcohol in 1981. Respondent's personal problems related to his abuse of alcohol included the breakdown of two marriages, the loss of his home and other assets, and the destruction of his law practice.
6. Respondent's misappropriations all occurred prior to the New Jersey Supreme Court's decision in In re Wilson, 81 N.J. 451 [ 409 A.2d 1153] (1979). Respondent has been temporarily suspended from the practice of law since January 8, 1979. Disbarment is not warranted. In re Beckman [Beckmann], 79 N.J. 402 [ 400 A.2d 792] (1979); In re Smock, 86 N.J. 426 [ 432 A.2d 34] (1981).
7. Based upon pre- Wilson case law, the appropriate discipline is an indefinite suspension from the practice of law with reinstatement conditioned upon the following:
a. Demonstration that respondent is presently fit to resume the practice of law supported by competent psychiatric evidence;
b. Full restitution within a period of time to be fixed by the Supreme Court of New Jersey;
c. Supervision of respondent's law practice under terms and for a period of time to be fixed by the Supreme Court of New Jersey;
d. Mandatory legal re-education on terms to be fixed by the Supreme Court of New Jersey;
e. Annual psychiatric reports to the Office of Attorney Ethics certifying respondent's continued abstinence from the use of intoxicants and his continued fitness for the practice of law;
f. Monthly attendance at meetings of Alcoholics Anonymous with semi-annual reports to the Office of Attorney Ethics certifying respondent's attendance; and,
g. Such other conditions as the Supreme Court of New Jersey deems appropriate under the circumstances.
8. Attached to this Stipulation are the original and supplementary decisions of the Disciplinary Review Board dated October 20, 1982, and November 29, 1983, respectively. Both parties agree to the submission of this Stipulation and the attachments to the Supreme Court of New Jersey for its final determination without oral argument and without the submission of further briefs.
Dated: 3/23/88
/S/ George T. Tierney GEORGE T. TIERNEY, ESQ.
Respondent
Dated: 3/25/88
/S/ Salim J. Balady SALIM J. BALADY, ESQ.
Attorney for Respondent
Dated: 3/29/88
/S/ David E. Johnson, Jr. DAVID E. JOHNSON, JR., ESQ.
Director
Office of Attorney Ethics