Mercer County Bar Association

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1 Mercer County Bar Association Xtreme 2013 CLE Seminar Evaluation Ethics - Trust and Business Accounting for Attorneys Wednesday, November 20, 2013 We would greatly appreciate it if you would take a few minutes to complete this questionnaire. These forms are necessary in order to obtain CLE credits. Your feedback will also help with other upcoming events. How did you first become aware of this seminar? MCBA Website MCBA Newsletter Received a registration flyer through the Mail Firm Other: Rate the following aspects of the seminar. Check one box for each aspect: Failed to meet Needs Met Exceeded Expectations Improvement Expectations Expectations Excellent! Overall Quality Written Materials Instructor(s) Facility Rate the content of this seminar: too basic too advanced perfect Would you recommend this seminar to others? : Yes No Yes, with these changes : What did you like most about the seminar? : What part of this seminar could use improvement? Please give us your suggestions for future seminars: Thank you. Please return this form to the MCBA representative after the seminar.

2 MERCER COUNTY BAR ASSOCIATION 1245 Whitehorse Mercer Road, Suite 420 Hamilton, New Jersey Phone No Course title: Professional Ethics (ETH Law Code) Date: November 20, 2013 Time: 6:15 p.m..-8:00 p.m. (2.0 credits) Speakers: Christina Blunda Kennedy, Esq. Deputy Ethics Counsel Office of Attorney Ethics Mary E. Waldman, Assistant Chief, Random Audit Program, Office of Attorney Ethics Karen J. Hagerman, Compliance Auditor, Random Audit Program, Office of Attorney Ethics Agenda and Minutes of Instruction 6:15 p.m. 7:00 p.m. Christina Kennedy, Esq. Topic Attorney Ethics 7:00 p.m. 7:30 p.m. Mary Waldman, CFE - Trust Account Requirements 7:30 p.m. 8:00 p.m. Karen J. Hagerman, Sr. Compliance Auditor Trust Account Mechanics

3 Mary Waldman 848 Duchess Drive Yardley, PA Phone Professional Experience 1995 Present Assistant Chief, Random Audit Program, Office of Attorney Ethics RESPONSIBILITIES - Supervise staff of compliance auditors under the Random Audit Program. - Personally responsible for conducting in excess of 2000 compliance audits of attorneys accounts to determine consistency with New Jersey Court Rule 1:21-6 and Rules of Professional Conduct 1.15 in compliance with Generally Accepted Auditing Standards under the Random Audit Program and Disciplinary Audit Program. - Instruct attorneys as to proper administrative practices and procedures of accounting to increase financial accountability and optimize operations. - Identification of improprieties, investigation and preparation of reports, affidavits and related exhibits essential to disciplinary proceedings. 7/88 1/95 - Serve as an expert witness at disciplinary hearings and trials Random Compliance Auditor, Office of Attorney Ethics 4/84 7/88 Promoted to Assistant Chief Auditor, Random Audit Program 1/95. Wachovia Bank, NA (Core States / First Fidelity Bank) Senior Audit Examiner 8/86 7/88 Audit Examiner 10/84 8/86 Junior Audit Examiner 4/87 10/84

4 RESPONSIBILITIES - Financial examination and analysis of general ledger and related accounting records using both manual and computerized testing techniques based on risk analysis. - Supervision of audit staff including assignment of audit tasks, review of work papers, evaluation of staff members and training junior staff. - Preparing audit reports including findings, causes, related risks, and recommendations for significant internal control deficiencies or regulatory violations. Education Rider University Lawrenceville, New Jersey Bachelor of Science, Accounting, May 1984 Minor Concentration - Finance Professional License Professional Service Certified Fraud Examiner 2006 Instructor for New Jersey I.C.L.E. Skills Training Course Trust and Business Accounting for Attorneys References Available Upon Request

5 Karen J. Hagerman, Senior Compliance Auditor Karen has been with the Random Audit Group of the Office of Attorney Ethics for more than 18 years, joining the Office in She has been a Senior Compliance Auditor for 10 years. She is responsible for conducting random compliance, select and demand audits of attorney trust and business accounts for consistency with New Jersey Court Rules and the Rules of Professional Conduct. She performs complex financially related investigations resulting from random, select and demand audits. In 2006, she became a Certified Fraud Examiner. During her employment with the OAE she has been involved in several financial investigations that resulted in serious charges against Attorneys. Ms. Hagerman has lectured for the New York City Bar, Pennsylvania Disciplinary Authorities and the OAE. Prior to joining the OAE, Ms. Hagerman s work experience includes the positions of Senior Auditor at Midlantic Bank N.A. ( ), Auditor at New Jersey Resources Corporation ( ) and Internal Auditor at Shadow Lawn Savings and Loan Association ( ). Ms. Hagerman graduated from Monmouth University in 1991 with a B.A. degree with a concentration in accounting. She resides in West Long Branch, New Jersey with her husband and two children.

6 Christina Blunda Kennedy, Esq. - Christina is a Deputy Ethics Counsel. She graduated from Cook College/Rutgers University in 1984 and received her law degree from Seton Hall Law School in She was engaged in the private practice of law trying personal injury cases for the defense from as an associate with the law firm of Leary Bride Tinker & Moran; from as a partner with Martin & Simmonds; from as a solo practitioner (Law Office of Christina Blunda); and as a partner with the law firm of Lepore Luizzi Lepore & Blunda. From she was a Deputy Attorney General in the Tort Litigation Section. She served on the District VIII (Middlesex County) Fee Arbitration Committee Christina joined the OAE in May 2006.

7 Attorney Ethics in New Jersey Christina Blunda Kennedy Deputy Ethics Counsel November 20,

8 Disclaimer The views expressed in this presentation are those of the speaker and do not necessarily reflect the policies and procedures of the Office of Attorney Ethics, the Administrative Office of the Courts, or the Supreme Court of New Jersey. 2

9 To Preserve Confidence "(T)he principle reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general." In re Wilson, 81 N.J. 451, 456 (1979)(Opinion by Wilentz, C.J.). 3

10 RPC s Criminal code of attorney ethics Lawyer s rules of the game 4

11 Most Common Grievances Misuse of funds 35% Neglect 18% Misrepresentation and fraud 9% Lack of communication 8% Conflicts of interest 4% All others 26% 5

12 Avoiding Grievances The Four C s: Candor Competence Courtesy Communication 6

13 Avoiding Grievances Return all calls within 24 hours. Send the client copies of everything. Provide periodic updates to clients on all matters. Be candid with adversaries and court. 7

14 Most Common Violations in 2012 Competence RPC % Gross neglect v. simple neglect Knowing Misapprop. RPC 1.15(a) 14.4% Other money offenses RPC 1.15(b) & (d) (negligent misapp., recordkeeping) % Criminal Convictions RPC 8.4(b) - 9.4% Fraud/Misrepresentation RPC 8.4(c) 8.6% 8

15 More Common Charges Conflicts of Interest RPCs % Lack of Communication RPC % Fees (no retainer, sharing) RPC % - Referred to Fee Arb if substantial fee dispute. R. 1:20-3(e)(2)(D) Practicing While Ineligible RPC % Administration of Justice -2.9% 9

16 Those Pesky Jurats There are five requirements: Personal appearance of affiant before attorney neighbor story Positive identification of affiant R.E. client story Individual is aware of document s contents Administration of oath by attorney Execution by attorney in presence of affiant 10

17 RPC 8.4 Misconduct (a) attempt to violate the rules = commission (b) criminal act that adversely reflects on honesty, trustworthiness and fitness as a lawyer (c) dishonesty, fraud, deceit, and misrepresentation very serious (d) conduct prejudicial to the administration of justice very, very broad 11

18 The Ethics System District Ethics Committees Office of Attorney Ethics Random audit Fee Arb Disciplinary Review Board 12

19 Confidentiality All ethics grievances / investigations are confidential. R. 1:20-9 Respondent can waive confidentiality RM- Grievant is not bound. Once complaint is signed, the case becomes public 13

20 The Court s Standing Committees Advisory Committee on Professional Ethics recent opinions. Committee on Attorney Advertising Committee on the Unauthorized Practice of Law All Volunteer; Appt. by the Court 14

21 Standing Committees Opinions of each Committee are subject to Supreme Court Review Opinions are binding authority 15

22 How Does The Disciplinary Process Begin? Grievant Contacts Committee Secretary in District Where Respondent Practices. Standing - Anyone can file a grievance. Secretary Screens Ethics Grievances. Docket or decline No appeal from a declination. Three Possible Actions by Committee or OAE Dismissal - Can be appealed to DRB. Diversion Investigation leading to a hearing. 16

23 Diversion - Like PTI Agreement In Lieu of Discipline. R. 1:20-3(i) Available for minor misconduct only: that is, misconduct, if proven, which would warrant only an admonition Only available before filing of complaint. recent exceptions Snyder and Spadea remanded by S. Ct. 17

24 Diversion Disqualifiers Knowing misappropriation Substantial prejudice; no restitution Discipline in previous five years Criminal Act Dishonesty, fraud, deceit, and misrepresentation (8.4(c)) 18

25 Examples of Minor Misconduct Gross neglect single act. RPC 1.1(a) Diligence. RPC 1.3 Communication. RPC 1.4 Fee agreement. RPC

26 Examples of Minor Misconduct Simple conflict. RPC 1.7 and RPC 1.9 Improper notarization. RPC 8.4 (c) Ineligible practicing law. RPC 5.5(a) 20

27 Discovery in Disciplinary Cases Discovery R. 1:20-5(a) Rule is similar to rules of discovery in criminal matters. No interrogatories, depositions or requests for admissions permitted. Respondent entitled to investigative report, if he/she requests it as part of discovery and has filed a responsive answer. 21

28 Duty to Cooperate R. 1:20-3(g)(3) duty to cooperate R. 1:-20-3(g)(4) adverse consequences of failure (MB) No privilege attached to grievant s file or any other relevant file in respondent s office. R. 1:20-3(g)(3) 22

29 Compounding the Issue False statements to ethics authorities RPC 8.1(a) Failure to respond RPC 8.1(b) Notice to the Bar, 149 N.J.L.J. 714, 6 N.J.L (1997)(attorney may be disciplined even if the underlying grievance is without merit for failure to cooperate alone) 23

30 There is no plea bargaining in the disciplinary system. Motion for Discipline by Consent time frame Disciplinary Stipulation Motion for Dismissal at the time of hearing for lack of proof 24

31 Hearing Hearings are public. Court reporter or (Courtsmart) is present. Rules of evidence are relaxed. Trier of fact is either a hearing panel or a Special Master. 25

32 Recommendation for Final Discipline R.1:20-15A Admonition Reprimand Censure Term suspension (usually 3 months to 3 years) 26

33 Final Discipline R.1:20-15A Indeterminate suspension - at least 5 years ( cusp of disbarment ) Disability inactive status by court order Disbarment - PERMANENT Revocation of license eg. Failure to pay LFCP for 7 years. Recent case. 27

34 Possible Conditions Financial controls Restrictions on practice Substance abuse monitoring Mental health treatment Take bar and pass character committee Other conditions deemed appropriate 28

35 Basis for Discipline Based on facts and precedent Not based specifically on the RPC violated Aggravation/mitigation Unlike specific criminal sentences 29

36 Precedent For Discipline Case law - N.J. Reports Precedent gradually going on-line DRB opinions v. Supreme Court opinions/orders Final disciplinary orders 30

37 Discipline - Factors Number of grievances Patterns of misconduct Deceit Experience Past record - progressive Lying to court or tribunal almost guaranteed suspension 31

38 One Bright-Line Rule Almost invariable disbarment for knowing misappropriation of funds In re Wilson, 81 N.J. 451 (1979)(trust) In re Hollendonner, 102 N.J. 21 (1985)(escrow) In re Siegel, 133 N.J. 161 (1993)(law firm) Note Disposition of Wigenton 32

39 Unsuccessful Defenses to Knowing Misappropriation Alcoholism Gipson, 103 N.J. 75 (1986) Drug use Romano, 104 N.J. 306 (1986) Gambling Goldberg, 109 N.J. 163 (1988) Bipolar disorder Tonzola, 162 N.J. 296 (2000); See also Siegel, supra. 33

40 Disbarment/No-Show Recidivists In re Kantor, 180 N.J. 226 (2004) Prior record reprimand; short suspension Abandonment, neglect, failure to cooperate 34

41 Appeals Ethics Committee recommendations for dismissal after hearing are subject to review by the DRB DRB recommendations are subject to petition for review to the Supreme Court of New Jersey 35

42 Emergent Actions Generally two grounds: No cooperation. R. 1:20-3(g)(3)(4). Threat of serious harm to attorneys, clients, or public. R. 1:20-11(a). Application to Supreme Court by OAE 36

43 Emergent Actions-Possible Results Interim suspension. R. 1:20-11 Order to cooperate License restriction proctor, co-signor, practice limitation Temporary disability inactive status. R. 1:

44 Old-Fashioned Research N.J. Reports ICLE ACPE Opinions binding Pressler, NJ Court Rules Gann Michels, New Jersey Attorney Ethics 38

45 Research The Internet s.htm 39

46 Don t Ask, Don t Tell Advisory opinions from OAE are prohibited Whether oral or written R. 1:20-2(c) Creates potential conflict of interest Ethics Hotline (609)

47 Thank You For Your Attention 41

48 Trust and Business Accounting for Attorneys Presented By The Office of Attorney Ethics of the OAE Office of Attorney Ethics

49 Trust and Business Accounting for Attorneys Can be obtained from ICLE Written by David E. Johnson Jr., Former Director, Office of Attorney Ethics Written in common language not accounting All attorneys admitted since 1987 have received this publication as part of the skills training required by ICLE OAE Office of Attorney Ethics

50 Outline Of NJ Court Rule 1:21-6 The Recordkeeping Rule Example of one type of system (manual) that complies with the Court Rule Many other systems can also comply: a) One Write Systems b) Computerized OAE Office of Attorney Ethics

51 Many Reasons to Maintain Proper Records To comply with Court Rules To properly account for and safeguard clients funds FOR YOUR OWN PROTECTION YOU CAN BE RIPPED OFF BY YOUR OWN EMPLOYEES OAE Office of Attorney Ethics

52 Trust Account Mechanics Sources of Authority New Jersey Court Rule 1:21-6 Rule of Professional Conduct 1.15 Accounting Model Double Entry Bookkeeping Generally Accepted Accounting Practice OAE Office of Attorney Ethics

53 Required Trust Accounting Records Trust Checkbook Trust Receipts Book Trust Disbursements Book Clients Trust Ledger OAE Office of Attorney Ethics

54 Trust Checkbook Stub/Register Checks General Running Balance John A. Lawyer, Esq. ATTORNEY TRUST ACCOUNT Pay to the order of OAE Office of Attorney Ethics

55 Trust Receipts/Disbursements Books Chronological Listing of All Entries Duplicate Recording Required Information Amount Date For Disbursements» Payee and Purpose For Deposits» Source and Description OAE Office of Attorney Ethics

56 Trust Disbursement Sample Attorney: John A. Lawyer Check Client File Date Number Payee Purpose Name Number Amount 3/12/94 #1190 Tax Collector Taxes - 1st Qtr Mendez RE $1, /13/94 #1191 John A. Lawyer Legal Fee Raptura PI $ /14/94 #1192 James Dodd Sale Proceeds Dodd RE $18, /16/94 Debit United Jersey Bk Wire Transfer Johnson CO $150, /19/94 #1193 Smart Investigator Accident Review Wang PI $ /20/94 #1194 Clerk. Mercer Cty Recording Fee Astori RE $ /23/94 #1195 Clerk, Mercer Cty Transfer Fee Astori RE $ /25/94 #1196 Haines Police Dpt Police Report Zadusky M U- 115 $ /27/94 #1197 Sec. of State Recording Fee Johnson CO $ /30/94 Debit United Jersey Bk Service Charge Lawyer $25.50 Total Monthly Disbursements $172, OAE Office of Attorney Ethics

57 Clients Trust Ledger Mini Bank Account Individual Running Balance Required Information Client s Name Amount Date For Disbursements» Payee and Purpose For Deposits» Source and Description OAE Office of Attorney Ethics

58 Clients Ledger Sample Client : Janice L. Breen File No. PI-1425 Check Deposits Withdrawals Running Date Number Payee/Source Description (Add) (Subtract) Balance 5/15/94 Janice L.Breen Advanced Costs $900 $900 5/20/94 #1473 Trenton PD Police Report $25 $875 9/12/94 #1535 Smart Invest. Invest. Report $500 $375 4/22/95 XYZ Ins. Co. Ins. Settlement $12,000 $12,375 4/30/95 #2243 Janice L. Breen Client's Proceeds $8,375 $4,000 4/30/95 #2244 John A. Lawyer Legal Fee/Costs $4,000 $0 OAE Office of Attorney Ethics

59 Trust Reconciliations Step 1: Normal Bank Reconciliation Bank Statement Balance = Adjusted Checkbook Balance Step 2: Total The Balances of All Clients Ledgers Add the balances on the individual client ledgers to determine a total Step 3: Compare Balances Total of Clients Ledgers = Checkbook Balance OAE Office of Attorney Ethics

60 Key Concepts In Trust Accounting Help You to Understand the Theory Help You to Understand the Process Preliminary Rules That Must Always Be Followed Record Contemporaneously» Within 24 Hours Record All Figures Exactly» No Rounding Allowed OAE Office of Attorney Ethics

61 Key Concept No. 1 Separate Clients Are Separate Accounts $2,000 $1,500 $1,000 $500 $0 Client A Client B Client C Client D Client E OAE Office of Attorney Ethics

62 Key Concept No. 2 You Can t Spend What You Don t Have Uncollected Funds Doctrine Availability of Funds Schedule» Electronic Transfers = Same Day» Cashier/Certified/Bank Checks = One - Two Days» Other Types of Checks = Three or More Days In re Moras, 131 N.J. 164 (1993) Real Estate Exception to the Doctrine Supreme Court Advisory Opinion 454 Title Closings» Personal Property (Sale of Business)» Real Estate OAE Office of Attorney Ethics

63 Key Concept No. 3 Timing Is Everything Know Your Bank s Closing Times Be Aware of the Consequences of After Hours Deposits Deposits In Person Speed Up the Accounting Process Increase Accuracy Deposits By Mail Slow Things Down Decrease Timeliness OAE Office of Attorney Ethics

64 Key Concept No. 4 Always Maintain An Audit Trail Descriptiveness Deposit Slips Aggregating Deposits» Indicating Client/File on all deposits Disbursements Memoing Checks» Indicating Purpose OAE Office of Attorney Ethics

65 Key Concept No. 5 Trust Accounting Is Zero- Based Accounting The Goal Is to Zero-Out the Account In = Out Resolve Small Inactive Balances Hinder the Reconciliation Process Pay Yourself or Your Client What is Due OAE Office of Attorney Ethics

66 Key Concept No. 6 There Is No Such Thing As A Negative Balance In re Wilson, 81 N.J. 451 (1979) $2,000 $1,500 $1,000 $500 $0 ($500) ($1,000) Client A Client B Client C Client D Client E OAE Office of Attorney Ethics

67 Key Concept No. 7 You Can t Play the Game Unless You Know the Score General Trust Account Running Balance Found in Trust Checkbook Individual Client Running Balance Found on Client Trust Ledger Check the Running Balances First General Running Balance = Sum of Individual Running Balances OAE Office of Attorney Ethics

68 New Jersey Supreme Court Office of Attorney Ethics RANDOM AUDIT PROGRAM OAE Office of Attorney Ethics

69 Random Audit Program Began in July of 1981 Have conducted approximately 10,000 audits to date Largest Program of its type in the nation 9 other states currently have Random Audit Programs (Iowa, Delaware, Connecticut, Washington, New Hampshire, North Carolina, Vermont, Hawaii and Kansas) OAE Office of Attorney Ethics

70 Random Audit Personnel Five full-time Auditors Significant accounting experience Minimum Education Accounting Degree All auditors have advance degrees or certifications J.D. CPA CFE OAE Office of Attorney Ethics

71 Random Audit Objectives Check compliance with the NJ Court Rules and Educate attorneys as to proper recordkeeping methods -received numerous testimonials Provide a deterrent effect Detect misappropriation of client funds OAE Office of Attorney Ethics

72 Random Audit Selection Number one question Is the selection really random? Computer Selection is made by main law office telephone number Theory solo practice 1 main number 200 person firm 1 main number Conduct approximately 400 audits per year OAE Office of Attorney Ethics

73 Random Audit Process Audits scheduled and law firm notified approximately 2 weeks in advance No surprise audits Less disruption for the attorney and staff Sufficient time to gather requested records Several attorneys confessed and turned themselves in after receiving contact letter OAE Office of Attorney Ethics

74 Random Audit Review 2 years records for both the business and trust accounts Primary focus on the Trust Account Business Account reviewed for Unusual transactions (Large deposits, payments to clients etc. Verify that all fees are deposited Not reviewed for profit, loss or payroll OAE Office of Attorney Ethics

75 Random Audit Process Initial conference with attorney to obtain background information about law firm Type of practice Amount of activity Type of records OAE Office of Attorney Ethics

76 Random Audit Processcont d Review of records Bank statements Cancelled checks Client ledger cards Checkbook stubs Receipts and disbursements journals Bank records Client case files as necessary OAE Office of Attorney Ethics

77 Random Audit Post Conference with Attorney Copy of Audit Deficiency Checklist provided all deficiencies discussed Attorney subsequently receives a letter identifying the deficiencies discussed and providing the attorney with 45 days to respond to the OAE that all problems were corrected 98% of RAP audits closed in this manner OAE Office of Attorney Ethics

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