SUPREME COURT OF NEW JERSEY Disciplinary Review Board Docket No. DRB IN THE MATTER OF JOSEPH DeMESQUITA AN ATTORNEY AT LAW

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1 SUPREME COURT OF NEW JERSEY Disciplinary Review Board Docket No. DRB IN THE MATTER OF JOSEPH DeMESQUITA AN ATTORNEY AT LAW Argued: March 20, 1996 Decided: July 15, 1996 Richard J. Engelhardt appeared on behalf of the Office of Attorney Ethics. Paul R. Melletz appeared on behalf of respondent. To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey. This matter was before the Board based on a Motion for Final Discipline filed by the Office of Attorney Ethics (OAE), following respondent s criminal conviction. ~.i:20-13(c) (2). Respondent was admitted to the bar of New Jersey in On December 15, 1994, he was indicted by a federal grand jury sitting in the Eastern District of Pennsylvania and charged with four counts of mail fraud, in violation of 18 U.S.C.A. 1341, On April 5, 1995, respondent pleaded guilty to the first and second counts of the indictment. The underlying facts, as set forth in the Government s Guilty Plea Memorandum, are as follows:

2 Allen Uhler would testify he was in a car accident on Memorial Day weekend, Uhler suffered cuts and whiplash when his car was hit and rolled over. After the accident Uhler retained Attorney DeMesquita, who had recovered on Uhler s behalf for a car accident in DeMesquita sent Uhler to see a Paoli doctor with whom Uhler treated three times a week for a month for lower back and neck pains. Uhler later visited a neurologist, was examined once by a doctor who is a personal friend, and saw a doctor for brief treatment in New Jersey. Uhler sought no further medical attention after August, 1988, three months after the accident. Uhler had.no other substantial communication with DeMesquita until approximately December, 1989, when he learned that his former girlfriend, who had been in the accident with him, had settled her claim. When Uhler heard of his ex-girlfriend s settlement he called DeMesquita. Uhler will testify that DeMesquita told him his loss, at that time $5,000 to $6,000, was not worth too much. DeMesquita also told Uhler he had a doctor who would create a large bill reflecting many visits by Uhler, and thereby improve his claim. DeMesquita told Uhler he would have to meet the doctor only once, and that the doctor would receive a cash payment. Uhler told DeMesquita he would go along with the plan. After that conversation Uhler called an attorney, who arranged for Uhler to speak to the FBI. On December 18, 1989, the FBI interviewed Uhler and recorded the first of several telephone calls with DeMesquita. When Uhler asked DeMesquita what was happening, DeMesquita told Uhler he hadn t talked to the doc yet. DeMesquita told Uhler he hoped to speak to him this week and that he ll probably ask me to prepare it (bogus medical bill) and then I ll...have to get him to sign it and then have to submit it. On December 26, 1989, Uhler called but did not reach DeMesquita. On December 29, 1989, Uhler again called DeMesquita. DeMesquita said he had prepared the necessary documents...for signature, and hopefully I will see him...before Tuesday or Wednesday. When Uhler asked, the doctor? DeMesquita said yeah. DeMesquita continued

3 that assuming everything s accurate for him or it s ok with him...and he signs off on it, it ll go out that day. Cause everything s ready to go. When Uhler asked you mean, I don t have to see him then? DeMesquita replied that s right. When Uhler started to ask another question DeMesquita cut him off, saying don t even ask any questions. DeMesquita later told Uhler I wouldn t even think or worry about anything...the less you know or say the better it is. Uhler was insured by Amica Mutual Insurance Company of Blue Bell. A representative of Amica would testify that DeMesquita informed Amica of his representation of Uhler by letter in June, DeMesquita supplied Amica with copies of Uhler s legitimate medical bills through August, 1988, when Uhler ceased treatment because of the accident. Amica heard nothing concerning Uhler until they received by mail from DeMesquita a bill for $2700 reflecting treatment of Uhler by Dr. Alexander Siekierka of the Holmesburg Medical Practice Center. (Count One). The bill was dated December 19, 1989, and claims nearly weekly treatment of Uhler from September, 1988, almost four months after the accident, through October, This treatment never occurred. Amica next received by mail a $20,000 demand letter dated January 8, 1990, from DeMesquita. (Count Two). The demand letter included a medical expense summary containing the $2700 figure for $iekierka s treatment of Uhler. Amica and DeMesquita then negotiated by phone. Amica agreed to pay $15,000 for Uhler s pain and suffering. Amica then received by mail from DeMesquita a letter dated January 24, 1990, with a release signed by Uhler showing satisfaction of his claim for $15,000. Amica then mailed to DeMesquita a $15,000 check dated January 25, 1990 and made payable to Uhler and DeMesquita. (Count Three). Amica mailed a separate $2700 check dated January 17, 1990, and made payable to Dr. Siekierka s Medical practice. (Count Four). Amica also paid approximately $4,000 in other legitimate medical claims, and $5,000 for damage to Uhler s car. The $15,000 check made payable to Uhler and DeMesquita, and the $2700 check made payable to Dr. Siekierka, were deposited into DeMesquita s attorney escrow account. The Siekierka endorsement on the rear of the

4 insurance company check to the doctor is obviously a stamped signature identical to the doctor s signature on the bogus treatment letter. On January 31, 1990 after Uhler was notified of the settlement by the insurance company, he called DeMesquita to arrange to meet and settle the money. During one part of the conversation DeMesquita became clearly unresponsive to Uhler. Seconds later DeMesquita is heard saying goodbye to someone, then whispers I can t talk in front of people DeMesquita then told Uhler the doctor wanted cash - $2,700. When Uhler volunteered to take the money to the doctor DeMesquita declined, saying he doesn t even want to know that you exist On February 5, 1990, Uhler was equipped with a recorder and observed entering DeMesquita s office. The tape is lengthy with much irrelevant discussion on it. Uhler will testify he endorsed the $15,000 check from the insurance company to Uhler and DeMesquita. DeMesquita deposited it to his escrow account. In Uhler s presence DeMesquita drew check number 1690 from his escrow account made payable to Uhler in the amount of $6,000 as Uhler s share of the proceeds. Uhler showed this check to the agents when he left the office, then deposited it and provided the FBI with the money. The FBI returned the $6,000 to the insurance company. Uhler will testify that DeMesquita also wrote check number 1691 from his escrow account in the amount of $2700 and made payable to Uhler, which Uhler endorsed and left with DeMesquita. DeMesquita said he would cash it at a check casher and give the cash to the doctor. On the tape DeMesquita is heard to say there is one here for 6 and one for 27...you endorse the back and I ll get it cashed. DeMesquita also showed Uhler a copy of the letter sent to the insurance company outlining Siekierka s treatment of Uhler. The attorney s bank records reflect the return of Uhler s $6,000 check, but do not reflect the cashing of the $2700 check to Dr. $iekierka. [Exhibit C to OAE s brief.]

5 On September 7, 1995, respondent was placed on probation for three years, ordered to perform 400 hours of community service, fined $5,000 and directed to make restitution to the Amica Insurance Company in the amount of $11,700. On September 15, 1995, the New Jersey Supreme Court temporarily suspended respondent. The suspension is in effect as of this date. The OAE argued that respondent s conviction of two counts of mail fraud merits a three-year suspension. The OAE noted that criminal acts directly involved with the practice of law, motivated by financial gain, and constituting a pattern of conduct extending over a substantial period of time have required disbarment in the past. See, e._~q =, In re Console, 142 N.J. 548 (1995); In re Curio, 142 N.J. 476 (1995). The OAE concluded, however, that discipline should be limited to a three-year suspension because respondent s acts were confined to a single isolated matter. The OAE contended that respondent s act resembled cases where attorneys found guilty of one serious act of misconduct received lengthy suspensions from the practice of law, rather than the ultimate sanction of disbarment. The OAE cited In re Konigsberq, 132 N.J. 263 (1993) (thirty-three month suspension following guilty plea in New York to charges of making false statement to a United States agency and backdating a contract for a client in order to obtain insurance proceeds); In re Giordano, 123 N.J. 362 (1991) (three-year suspension after conviction of attempting to tamper with public record by participating in a scheme to obtain an illegal driver s license for a client, in exchange for sexual favors); In re Power, 114 N.J. 540 (1989) (three-year suspension 5

6 for criminal conviction of obstructing the administration of justice, advising a criminal defendant to withhold information from law enforcement authorities about a stock fraud investigation and assisting a client in filing false insurance claims); and In re Kushner, 101 N.J. 397 (1986) (three-year suspension for knowingly making a false certification in court to avoid liability on a promissory note signed by the attorney). Respondent claimed that the amount of time between the misconduct and the-final discipline (seven years) should be considered in mitigation, as well as his relatively young age. Respondent relied on cases in which the Court recognized mitigating factors, including the period of time from the infractions or criminal conduct and the final discipline imposed. Se ~e, e.~., I ~n re Stier, 108 N.J. 455 (1987); In re DiBiasi, 102 N.J. 152 (1986). Respondent also asked that his reputation, prior trustworthy professional conduct and general good character be considered when determining discipline. A criminal conviction is conclusive evidence of an attorney s guilt in disciplinary proceedings. ~.I:20-13(c)(i); In re Goldberq, 105 N.J. 278, 280 (1987). The sole issue to be determined is the quantum of discipline to be imposed. In re Infinito, 94 N.J. 56 (1983). Respondent s criminal conviction clearly and convincingly demonstrates that he has engaged in activity that reflects adversely on his fitness as a lawyer. RPC 8.4 (b). 6

7 A calculation of the measure of discipline, even in cases of criminal conviction, must include the nature and severity of the crime, whether the crime was related to the practice of law and any mitigating factors, such as evidence of the attorney s good reputation and character. In re Kushner, su_9_p_k~, i00 N.J. at 400 (1986). Furthermore, the purpose of discipline is not the punishment of the offender, but "protection of the public against an attorney who cannot or will not measure up to the high standards of responsibility required of every member of the profession." In re Getchius, 88 N.J. 269, 276 (1982), citinq In re Stout, 76 N.J. 321, 325 (1978). The severity of the discipline to be imposed must comport with the seriousness of the ethical infraction in light of all the relevant circumstances. In re Niqohosian, 86 N.J. 308, 315 (1982). Mitigating factors are, therefore, relevant and may be considered. In re Huqhes, 90 N.J. 32, 36 (1982). Here, respondent pleaded guilty to two counts of mail fraud, a serious criminal offense. Nevertheless, the Board was not convinced that either disbarment or a three-year suspension was required in this case. Several mitigating circumstances have led the Board to determine that those sanctions would be excessive. As acknowledged by the OAE, respondent s misconduct was limited to an isolated incident. It was also an aberration, as demonstrated by respondent s prior unblemished record and fine reputation among his friends, his peers and his clients. In addition (I) seven years have elapsed since respondent s offense; (2) he was relatively young at the time, having practiced law for almost six years; (3) he has also suffered professionally and personally from his 7

8 misconduct, having gone through a divorce that resulted in his custody of his two young children; (4) he has completed the 400 ~hours of community service ordered by the court, has paid all fines and has made complete restitution, and (5) he has shown regret for his actions. In light of the foregoing, the Board was persuaded that a twoyear suspension, retroactive to the date of respondent s temporary suspension, on September 13, 1995, adequately addresses the gravity of respondent s offense and the mitigating circumstances present in this case. The Board s decision was unanimous. Three members did not participate. The Board further determined to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs. LEE~. HYMERLING Chair Disciplinary Review Board