1 Chief IN THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, : No Disciplinary Docket No_ 3 Petitioner. : No, 70 DB 2008 V. : Attorney Registration No BERNARD LAMBERT, Respondent : (Out Of State) ORDER PER CURIAM: AND NOW, this 25th day of August, 2011, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board dated May 19, 2011, the Joint Petition in Support of Discipline on Consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is ORDERED that Bernard Lambert is suspended from the Bar of this Commonwealth for a period of three years retroactive to May 23, 2011, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. A True Copy Patricia Nicola As Of 8/ Attest: Cle ( 'ill:CAIL) Supreme Court of Penn5yIvania
2 BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL No Disciplinary Docket No. 3 Petitioner No. 70-DB 2008 V. Attorney Registration No BERNARD LAMBERT Respondent (Out of State) RECOMMENDATION OF THREE-MEMBER PANEL OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA The Three-Member Panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of Board Members Gabriel L. Bevilacqua, Carl D. Buchholz, Ill, and Gerald Lawrence, has reviewed the Joint Petition in Support of Discipline on Consent filed in the above-captioned matter on April 4, The Panel approves the Joint Petition consenting to a three year suspension retroactive to the date of his temporary suspension and recommends to the Supreme Court of Pennsylvania that the attached Petition be Granted. The Panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the Petition. Date: May 19, 2011 Gabriel L. Bevilacqua, Panel Chair The Disciplinary Board of the Supreme Court of Pennsylvania
3 BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, No Disciplinary Petitioner Docket No. 3 v. No. 70 DB 2008 BERNARD LAMBERT, Attorney Reg. No Respondent (Out of State) JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER RULE 215(d) PA.R.D.E. Petitioner, Office of Disciplinary Counsel, by Paul J. Killion, Chief Disciplinary Counsel, and Patricia A. Dugan, Disciplinary Counsel, and Respondent, Bernard Lambert, file this Joint Petition In Support Of Discipline on Consent under Rule 215(d) Pa.R.D.E., and respectfully represent that: 1. Petitioner, whose principal office is situated at the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter "Pa.R.D.E."), with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various prov*ins Eft) said Rules. APR Office of the Secretary The Disciplinary Board of the Supreme Court of Pennsylvania
4 2. Respondent, Bernard Lambert, was born on October 21, 1941, and was admitted to practice law in the Commonwealth on June 8, Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania. 4. On January 29, 2008, Respondent, while represented by counsel, signed a Disbarment on Consent in New Jersey for the knowing misappropriation of client trust funds. 5. On February 28, 2008, the Supreme Court of New Jersey entered an Order permanently disbarring Respondent on consent from the practice of law in New Jersey. 6. On February 27, 2009, the Pennsylvania Supreme Court declined to impose reciprocal discipline on Respondent, stating that "Respondent has demonstrated that doing so may result in a grave injustice." 7. In seeking to avoid the imposition of reciprocal discipline in Pennsylvania, Respondent denied that he intentionally engaged in misconduct. SPECIFIC FACTUAL ADMISSIONS AND RULES OF PROFESSIONAL CONDUCT VIOLATED 8. On April 11, 2006, David E Johnson, Jr. Director of the New Jersey Office of Attorney Ethics, hereinafter "NJOAE", sent Respondent a letter.informing him that a random audit of 2
5 Respondent's books and records would be conducted by the NJOAE at Respondent's Newark office on May 3, Respondent's office, Lambert & Lambert, P.0 was located in Newark, New Jersey. Respondent maintained an Interest on Lawyers' Trust Account, hereinafter, "IOLTA", at Ironbound Bank located in Newark, New Jersey. 10. The initial audit period was April 1, 2004, through March 31, On May 3, 2006, the NJOAE conducted a review of Respondent's business account records. 12. On May 4, 2006, NJOAE sent Respondent a letter which advised that: a.) Respondent operated his IOLTA without proper reconciliations, resulting in an IOLTA shortage of more than $100,000.00; and b.) Respondent was unable to account to the NJOAE auditor for the client funds he was holding. 13. NJOAE specifically found the following deficiencies: a.) Respondent's trust receipts book was not fully descriptive; b.) Respondent failed to keep a running cash balance in the IOLTA checkbook; 3
6 c.) Respondent failed to prepare a schedule of clients' ledger accounts and failed to reconcile them to the bank account statements; d.) Inactive IOLTA ledger balances remained in the IOLTA for an extended period of time; e.) No monthly reconciliations with journals and checkbook; and f.) Image processed checks for the trust and business accounts were improper. 14. NJOAE alleged that the random audit revealed a knowing misappropriation of client trust funds which took place during Respondent's purchase of a New Jersey home, known as Florham Park, the sale of Respondent's wife's New Jersey home, known as West Orange, and Respondent's subsequent purchase of a vacation home, known as Villa Regina. The Wes t Orange, Florham Park and Villa Regina Ma t ters 15. On February 26, 2005, Respondent deposited $1, of his personal monies into his IOLTA as an initial deposit for himself and his wife for the purchase of Florham Park. Respondent's wife was also Respondent's law partner. 16. Respondent and his wife represented themselves, pr o s e, in the real estate transactions. 4
7 17. On March 1, 2005, Respondent received a $25, deposit from a buyer to purchase West Orange. Respondent deposited the $25, into his IOLTA. Respondent required the "deposit to be held in the seller's attorney trust account until the closing of title." 18. On March 11, 2005, Respondent deposited an additional $19, to the Florham Park ledger so that the balance was $20, On March 11, 2005, Respondent transferred $26, out of the West Orange ledger and into the Florham Park ledger. The balance in Respondent's West Orange ledger was <$1,000.00>. 20. Also on March 11, 2005, ten days after receiving the buyer's deposit check of $25, for the West Orange 'sale, Respondent disbursed IOLTA check #3204 for $44, to the law firm of Ventura, Miesowitz, which invaded $24, of the buyer's $25, deposit, held for the West Orange sale. 21. Respondent failed to deposit any of his money into the IOLTA to make restitution for the use of the buyer's deposit funds prior to the closing of title on West Orange. 22. On or about May 27, 2005, the West Orange settlement took place. According to Line 603 of the RESPA (HUD-1 Uniform Settlement Statement), Respondent's wife, as seller, received sale proceeds of $526,
8 23. On May 28, 2005, the West Orange ledger indicated Respondent deposited $526, into the IOLTA and on May 31, 2005, Respondent deposited a $ use and occupancy refund into the IOLTA for a total of $526, Respondent then internally transferred the $526, in West Orange proceeds from the West Orange ledger to the Florham Park ledger to purchase Florham Park. 25. The West Orange ledger indicated that following the closing of West Orange, Respondent had yet to pay the broker's commission to Burgdorff Realtors by IOLTA check #3223, in the amount of $22,475.00, therefore only $504, was available for transfer to the Florham Park ledger. 26. After all disbursements were made for the Florham Park purchase, the remaining funds available on June 6, 2005, were only $132, (the ledger card balance shown of,$155, less the $22, broker's commission check). 27. On July 11, 2005, Respondent began to make disbursements to acquire Villa Regina as reflected on the Villa Regina ledger. Respondent requested a bank check in the amount of $1, for inspection repairs that was deducted from the IOLTA. 6
9 28. On the same day, Respondent requested another bank check in the amount of $36, for a down payment on the purchase of Villa Regina that was deducted from the IOLTA. 29. On July 27, 2005, Respondent obtained a third bank check in the amount of $15, to pay for furniture for Villa Regina that was deducted from the IOLTA. 30. On July 28, 2005, Respondent requested a fourth bank check in the amount of $154, for the balance of the purchase price of Villa Regina that was deducted from the IOLTA. 31. A total of $207, had been disbursed even though only $132, was available in the IOLTA from the sale of West Orange. Respondent invaded other clients' funds for a total of <$75,347.52>. 32. Respondent's IOLTA remained short until he made partial restitution in the amount of $50, on April 29, 2006, just prior to the random audit which took place on May 3, On July 27, 2006, Respondent reimbursed his IOLTA any remaining shortfall related to the property transactions. 34. On or about August 17, 2006, NJOAE turned the random audit into a demand audit and found other misappropriations of client funds. 7
10 The Gonzale z Ma t ter 35. On or about August 22, 1998, Pedro and Lizandra Gonzalez, (Defendants) were served with a Notice of In Rem Tax Foreclosure as to property located in Newark, New Jersey for failure to pay their property taxes to the City of Newark. 36. On or about October 28, 1998, the Superior Court of New Jersey, Chancery Division in Essex County, entered a Judgment by Default against Mr. and Mrs. Gonzalez in the matter captioned as City of Ne wa rk v. (2 0 4 ) Bl o ck Lo t 1 e t a l., docket no. F On or about May 1, 2001, Mr. and Mrs. Gonzalez received a Notice of Public Auction on their property, scheduled for May 10, Subsequently, Mr. and Mrs. Gonzalez hired Respondent's law firm to assist them. 39. On May 9, 2001, the Court entered a Consent Order and ordered Mr. and Mrs. Gonzalez to make application, within seven days of the auction, to the Court to redeem their property. 40. The Court, by Order (incorrectly) dated June 22, 2001, granted Mr. and Mrs. Gonzalez the opportunity to redeem their property from the City of Newark by the end of business on Monday, June 18, 2001, otherwise the Court would deny their Motion to Vacate the Default Judgment with prejudice. 8
11 41. Mr. Gonzalez promised Respondent that he would bring sufficient funds in time to redeem his property. On June 18, 2001, Respondent issued check #2010 from his IOLTA in the amount of $67, to the City of Newark to cover the Gonzalez's outstanding property taxes even though only approximately $9, in his IOLTA belonged to Mr. and Mrs. Gonzalez. 42. Respondent invaded other clients' funds of more than $58, from 2001 until he made restitution subsequent to the random audit on July 27, Mr. Gonzalez made periodic payments to Respondent from July 7, 2001 through April 28, Mr. Gonzalez made a total of 19 payments totaling $41, Respondent deposited all 19 payments into his business account rather than his IOLTA. January 3, TO= Overdraft 45. On January 3, 2006, Respondent's IOLTA check, #3318, dated December 27, 2005, made payable to the law firm of Marvel and Maloney in the amount of $13, and charged to his client, Joao Ferreira, was presented for payment. 46. IOLTA check #3318 was returned by the bank due to insufficient funds in Respondent's IOLTA. 47. When another IOLTA check, #3316, in the amount of $14, was paid by the bank on January 3, 2006, just before 9
12 the Ferreira check, Respondent's IOLTA balance to pay Ferreira was merely $4, After Respondent's IOLTA check #3318 was paid, his IOLTA was overdrawn by <$8,447.93>. 49. On December 20, 2005, Respondent deposited a First Trenton Indemnity check in the amount of $15, into his IOLTA representing client Maria Goncalves' share of a personal injury settlement. Therefore on January 1, 2006, practically the only funds available in Respondent's IOLTA were the Goncalves trust monies despite the fact that the Ferreria check' had not yet been paid by the bank. 50. On or about January 9, 2006, an $11, unidentified deposit was credited to Respondent's IOLTA by way of a bank check to ensure that there were sufficient funds in Respondent's IOLTA when he paid out the funds for Ferreira to the Marvel and Maloney law firm. Respondent's records identified a deposit of Respondent's personal funds of $9, According to the January 2006 bank statement for Respondent's IOLTA, the highest overdraft balance occurred on January 10, 2006, in the amount of <$9,055.93>. 10
13 The Fernandez Ma t ter 52. Beginning on November 26, 2001, Respondent deposited and disbursed various sums of money through January 18, 2005, when the balance on the Ofelia Fernandez trust ledger was $18, On or about February 16, 2005, Respondent deposited $224, into his IOLTA on behalf of Ms. Fernandez. 54. On January 3, 2006, when Respondent's IOLTA balance was <$8,447.93>, as stated above in paragraph 48, considering only the balance on the Fernandez ledger, which was $115,003.75, a shortage of <$123,451.67> existed in Respondent's IOLTA without regard to any other funds Respondent should have been safeguarding in his IOLTA. 55. The Fernandez funds totaled more than $100, and Respondent had to know anytime his IOLTA balance fell below that minimal amount. Between February 16, 2005 and September the Fernandez balance was slightly less at $99, On November 9, 2005 through November 15, 2005, Respondent's IOLTA balance was $92, and fell as low as $81, Between January 1, 2006, and April 29, 2006, when Respondent made restitution and received credit for his $50, deposit, his IOLTA balance was only $71,064,21. 11
14 57. All of Respondent's clients received the funds they were entitled to receive and the ODC is unaware of any evidence to the contrary. 58. By his conduct as alleged in Paragraphs 8 through 57 above, Respondent has violated the following New Jersey Rules of Professional Conduct via Pennsylvania Rules of Professional Conduct 8.5(a) and 8. 5 ( b ) ( 2 ) ( Di s c ip l i n a ry Au th ori ty ; Ch oi c e of L a w ) : a. RPC 1.15(a), requiring a lawyer to hold property of clients or third persons that is in a lawyer's possession in connection with a representation, separate from the lawyer's own property in an account maintained in a financial institution in New Jersey wherein the funds are identified and appropriately safeguarded and the records of such account funds and other property are kept by the lawyer and preserved for seven years; b. RPC 1.15(d), requiring a lawyer to comply with the provisions of R.1:21-6 ("Recordkeeping") of the New Jersey Court Rules; and c. RPC 8.4(c), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 12
15 SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE 59. Petitioner and Respondent jointly recommend that the appropriate discipline for Respondent's admitted misconduct is a suspension from the practice of law for a period of three years. 60. Respondent hereby consents to that discipline being imposed upon him by the Supreme Court of Pennsylvania. Attached to this petition is Respondent's executed affidavit required by Rule 215, Pa.R.D.E., stating that he consents to the recommended discipline and which includes the mandatory acknowledgements required by Rule 215 (d) (1) through (4), Pa.R.D.E. 61. In support of Petitioner and Respondent's joint recommendation, it is respectfully submitted that the following mitigating circumstances are present: a. Respondent has cooperated in New Jersey, hired an accountant as instructed by the NJOAE and made restitution to his IOLTA; b. Respondent accepted responsibility for his actions as evidenced by his agreement to be permanently disbarred on consent in New Jersey; c. Respondent self-reported his disbarment to the Disciplinary Board; d. Respondent is 69 years old, was admitted to practice law in Pennsylvania on June 8, 1979 and has no prior history of discipline; 13
16 e. Respondent has expressed remorse for his actions; f. Respondent has accepted responsibility for his actions as evidenced by his agreement to enter into a Joint Petition on Consent; and g. In addition to this Petition, on March 7, 2011, Respondent signed a Joint Petition to be placed on Temporary Suspension which was filed with the Pennsylvania Supreme Court on March 10, In Pennsylvania, there is no per s e discipline for a particular type of misconduct, but instead each case is reviewed individually as established in the case of Offi ce of Di s cip l i n a ry Co un s e l v. L u ca ri n i, 417 A.2d 186 (Pa. 1983). The misappropriation of or the unauthori2ed dealings with client funds requires some form of public discipline due to the breach of trust involved. The level of public discipline in such cases depends upon the aggravating and mitigating factors. In R e An onym o u s No. 124 DB 1997, 47 Pa. D. & C 4th 338 (1998). An examination of cases involving the misappropriation of client funds indicates that the length of suspension generally ranges from a short suspension to disbarment. The imposition of a three-year suspension is consistent with the range of sanctions imposed. In ODC v. Z i e gl e r, 83 Pa. D. & C. 4th 401 (2006), Ziegler was suspended for three years. He had no prior history of 14
17 discipline, having been admitted in In 2002, Ziegler received Gusick estate assets totaling over $30, Ziegler commingled the estate funds when he deposited the estate funds into his operating account even though he had an IOLTA. Ziegler converted a total of $15, in Gusick funds which included payments on personal bank loans, college, tuition payments for his daughter, and $ for his annual attorney registration fee. In April of 2003, Ziegler transferred $11, in Gusick funds from his operating account into his IOLTA and made distributions to close the Gusick estate. Ziegler used funds he held for a client, Rebrag, Inc. and $2, from another client named Watkins. Ziegler presented evidence that he was entitled to use Rebrag Inc.'s money however that did not lessen his misconduct. The commingling had begun prior to the availability of Rebrag Inc.'s money and continued after ODC began its investigation. Ziegler overdrew his trust account and failed to respond to requests from the Pennsylvania Lawyers Fund for Client Security and ODC. Zeigler failed to respond to two supbpoenas duces tecum served upon him by ODC. Ziegler's poor record keeping might have explained the overdraft but it did not explain his lack of response to Client Security or ODC. Ziegler continued his commingling after he was on notice. There was no evidence that Ziegler attempted to change his office procedures 15
18 to rectify any problems. Ziegler indicated that.he intended to close his practice and close out all of his accounts. In Z i egl er, the Disciplinary Board relied on the following cases: ODC v. Fo t i, 835 Disciplinary Docket No. 3 (July 24, 2003), in which Foti, having no prior history of discipline, presented mitigation and was suspended for three years for converting $33, in fiduciary funds and for failing to promptly pay settlement funds to a client; ODC v. Ol sh o ck, 862 Disciplinary Docket No. 3 (Oct. 24, 2003) in which Olshock was suspended for three years for having converted $18, from an estate; and In re An onym o u s, 54 Disciplinary Docket No. 3 (Mar. 23, 2000), in which an attorney who had no prior history of discipline but who had commingled and converted client funds over a period of time was suspended for three years. The Disciplinary Board did not find Ziegler's misconduct to be quite as egregious as the misconduct in ODC v. Ha rm on, 72 Pa. D. & C. eh 115 (2004). Harmon was a personal injury lawyer who commingled fiduciary funds and personal funds by depositing client funds into her operating account when she had a negative balance in her account. Harmon received a client's settlement funds and did not distribute those funds to her client promptly and used them for personal bills. Harmon then used other clients' funds to pay the first client and so on, until Harmon didn't pay one of her clients the settlement they were due and 16
19 the client filed a claim with the Pennsylvania Lawyers Fund for Client Security. In addition to mishandling the funds of four clients, Harmon failed to appear for the hearing before the Hearing Committee even though she had previously requested and was granted a continuance so that she could fly in from her new residence in Nevada. Harmon believed the allegations were not true and that it was an injustice to allow the hearing to continue without her putting on a defense, yet she had opportunities to put forth a defense and never did. Harmon was not remorseful and received a three-year license suspension. In light of the facts in this case, Petitioner and Respondent submit that a three-year suspension is appropriate discipline for Respondent's misconduct after considering precedent and weighing the mitigating factors. WHEREFORE, Petitioner and Respondent respectfully request that, pursuant to Pennsylvania Rules of Disciplinary Enforcement 215(e) and 215(g), a three member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and file a recommendation with the Supreme Court of Pennsylvania that Respondent be suspended for a period of three years retroactive to the date the Supreme Court places him on temporary suspension and that Respondent be ordered to 17
20 pay all necessary expenses incurred in the investigation and prosecution in the matter as a condition to the grant of the Petition. Respectfully submitted, OFFICE OF DISCIPLINARY COUNSEL PAUL J. KILLION, Chief Disciplinary Counsel Date BY: Patricia A. Dugan Attorney Registration No Disciplinary Counsel Suite Adams Avenue Trooper, PA tte3// 11(/.Sernard La rt Respondent 18
21 BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, No Disciplinary Petitioner Docket No. 3 No. 70 DB 2008 v. BERNARD LAMBERT, Attorney Reg. No Respondent (Out of State) VERIFICATION The statements contained in the foregoing Joint Petition in Support of Discipline on Consent under Rule 215(d), Pa.R.D.E., are true and correct to the best of our knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. 4904, relating to unsworn falsification to authorities. Date Patricia A. Dugan, Disciplinary Counsel 'WO 2c(/ ` 070/) Date Bernard Lambe squire Respondent
22 BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, : No. 70 DB 2008 Petitioner : BERNARD LAMBERT, V. Attorney Reg. No Respondent (Out of State) AFFIDAVIT UNDER RULE 215 Pa.R.D.E. Respondent Bernard Lambert hereby states that he consents to the imposition of a suspension from the practice of law for a period of three years and further states that: 1. He is an attorney admitted to the Commonwealth of Pennsylvania, having been admitted to the bar on or about June 8, He desires to submit a Joint Petition in Support of Discipline on Consent pursuant to Pa.R.D.E. 215(d). 3. His consent is freely and voluntarily rendered; he is not being subject to coercion or duress; and he is fully aware of the implications of submitting this consent. 4. He has not consulted with counsel in connection with his decision to consent to discipline. 5. He is aware there is presently a proceeding involving allegations that he has been guilty of misconduct as set forth within the accompanying petition. 6. He acknowledges that the material facts within the petition are true.
23 7. He consents because he knows that if he continues to be prosecuted in the pending proceeding, he cannot successfully defend himself. 8. He requests that his suspension be made retroactive to the date he is placed on temporary suspension and is advised that the Office of Disciplinary Counsel does not oppose his request. He understands that the decision to grant his request lies solely in the discretion of the Supreme Court of Pennsylvania. It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S.A (relating to unswr falsification to authorities). Signed this 2er'day of OA/6i/, Bernars Lambert, Respondent Sworn to and Subscribed before me this 2 day of I" re--`14, 2011 PEDRO CALERO Notary Public of New Jersey- ID.# Commission Expires 3/6/2013. Notary Public 2
24 BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, No Disciplinary Petitioner Docket No. 3 v. No. 70 DB 2008 BERNARD LAMBERT, Attorney Reg. No Respondent (Out of State) CERTIFICATE OF SERVICE I hereby certify that I have this day served by first class mail the Foregoing Joint Petition in Support of Discipline on Consent upon Bernard Lambert in this proceeding in accordance with the requirements of 204 Pa. Code (relating to service by a participant). By First Class Mail: Bernard Lambert, Esquire 35 Murphy Circle Florham Park, NJ Date Patricia A. Dugan Disciplinary Counsel Atty. Reg. No District II Office Disciplinary Board of the Supreme Court of Pennsylvania 820 Adams Avenue, Suite 170 Trooper, PA 19403
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