Opinion
Docket No. DRB 14-163
09-23-2014
Re: In the Matter of David R. Carmel
BONNIE C. FROST, ESQ., CHAIR EDNA Y. BAOGH, ESQ., VICE-CHAIR BRUCE W. CLARK, ESQ. HON. MAURICE J. GALUPOLI THOMAS J. HOBERMAN EILEEN RIVERA ANNE C. SINGER, ESQ. MORRIS YAMNER, ESQ. ROBERT C. ZMIRICH ELLEN A. BRODSKY CHIEF COUNSEL ISABEL FRANK DEPUTY CHIEF COUNSEL LILLIAN LEWIN BARRY R. PETERSEN JR. DONA S. SEROTA -TESCHNER COLIN T. TAMS KATHRYN ANNE WINTERLE ASSISTANT COUNSEL
BONNIE C. FROST, ESQ., CHAIR
EDNA Y. BAOGH, ESQ., VICE-CHAIR
BRUCE W. CLARK, ESQ.
HON. MAURICE J. GALUPOLI
THOMAS J. HOBERMAN
EILEEN RIVERA
ANNE C. SINGER, ESQ.
MORRIS YAMNER, ESQ.
ROBERT C. ZMIRICH
ELLEN A. BRODSKY
CHIEF COUNSEL
ISABEL FRANK
DEPUTY CHIEF COUNSEL
LILLIAN LEWIN
BARRY R. PETERSEN JR.
DONA S. SEROTA -TESCHNER
COLIN T. TAMS
KATHRYN ANNE WINTERLE
ASSISTANT COUNSEL
RICHARD J. HUGHES JUSTICE COMPLEX
Mark Neary, Clerk
Supreme Court of New Jersey
P.O. Box 970
Trenton, New Jersey 08625-0962
District Docket No. XIV-2013-0329E Dear Mr. Neary:
The Disciplinary Review Board reviewed the motion for discipline by consent (reprimand to three-month suspension), filed by the Office of Attorney Ethics, pursuant to R. 1:20-10(b). Following a review of the record, the Board determined to grant the motion. In the Board's view, a three-month suspension is the appropriate measure of discipline for respondent's misconduct.
Specifically, respondent represented Mariner's Bank in connection with a March 2004 $1,100,000 mortgage and loan to Nancy Raimondo, who had defaulted on the mortgage. In January 2008, respondent initiated foreclosure proceedings on behalf of the bank.
As part of an April 2009 settlement, title to the property was transferred to the bank and the foreclosure action was dismissed. Although respondent sent the new deed for recordation, it was returned to him for failure to pay the realty transfer fee. Mariner's Bank advised respondent to hold the deed unrecorded, while it found a buyer for the property. It did so to avoid paying realty transfer fees on two separate transactions. Raimondo's attorney agreed to substitute a new first page of the deed with a new grantee, once the bank found a buyer and was ready to close title.
Once a buyer was in place, respondent reviewed the buyer's title search, which revealed an Internal Revenue Service (IRS) tax lien ($10,584.57) that had not appeared on earlier searches of the property. Because that lien had been recorded before the bank's deed, the IRS had a prior claim against the. proceeds of sale to the new buyer.
Instead of alerting the bank to the existence of the IRS' prior lien, respondent resorted to deception. Using an authentic lis pendens filed by another party in the foreclosure matter, respondent fabricated a lis pendens notice for the bank's dismissed foreclosure action, backdated it to March 17, 2008, and affixed the March 20, 2008 "filed" court stamp from the authentic lis pendens document. He did so believing that the IRS would conclude that its lien was junior to that of the bank and would then release its tax lien.
On August 18, 2009, respondent sent the false lis pendens to the IRS. By his actions, he misrepresented that the bank had filed a lis pendens, in its foreclosure matter, a year before the IRS had perfected its lien. Hearing nothing from the IRS, on January 5, 2010, he sent them a settlement offer.
Ultimately, the IRS sought a meeting with respondent, to be held at the U.S. Attorney's office for the District of New Jersey. With IRS and U.S. Attorney officials present, respondent admitted his fabrication.
By fabricating the lis pendens document and affixing a court's seal to it, respondent attempted to perpetrate a fraud on the IRS. In doing so, he violated RPC 8.4(c).
The Board concluded that respondent's egregious misconduct was similar to that of the attorney in In re Russo, 212 N.J. 191 (2012). Russo received a three-month suspension for fabricating or altering court orders and a notice of appeal, and forging the client's signature on a certification filed with the court. He also misrepresented the status of the litigation to the client.
In mitigation, the Board considered that respondent has no prior final discipline since his 1972 bar admission, and that he personally paid the IRS $14,186.65 plus interest, to extinguish the lien, because he believed that he alone was responsible.
Enclosed are the following documents:
1. Notice of motion for discipline by consent, dated May 23, 2014.
2. Stipulation of discipline by consent, dated May 23, 2014.
3. Affidavit of consent, dated July 1, 2014.
4. Ethics history, dated September 23, 2014.
Very truly yours,
/s/
Ellen A. Brodsky
Chief Counsel
EAB/paa
encls.
c: Bonnie C. Frost, Chair (via e-mail) Disciplinary Review Board (w/o encls.)
Charles Centinaro, Director Office of Attorney Ethics (w/o encls.)
Maureen G. Bauman, Deputy Ethics Counsel Office of Attorney Ethics (w/o encls.)
David R. Carmel, Respondent (w/o encls.)
D-12 September Term 2014
074988
IN THE MATTER OF DAVID R. CARMEL, AN ATTORNEY AT LAW (Attorney No. 283891972)
ORDER
This matter have been duly presented pursuant to Rule 1:20-10(b), following the granting of a motion for discipline by consent in DRB 14-163 of DAVID R. CARMEL of FORT LEE, who was admitted to the bar of this State in 1972;
And the Office of Attorney Ethics and respondent having signed a stipulation of discipline by consent in which it was agreed that respondent violated RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation);
And the parties having agreed that respondent's conduct violated RPC 8.4(c), and that said conduct warrants a reprimand to a three-month suspension;
And the Disciplinary Review Board having determined that a three-month suspension from practice is the appropriate discipline for respondent's unethical conduct and having granted the motion for discipline by consent in District Docket No. XIV-2013-0329E;
And the Disciplinary Review Board having submitted the record of the proceedings to the Clerk of the Supreme Court for the entry of an order of discipline in accordance with Rule 1:20-16(e);
And good cause appearing;
It is ORDERED that DAVID R. CARMEL of FORT LEE is hereby suspended from the practice of law for a period of three months, effective November 7, 2014, and until the further Order of the Court; and it is further
ORDERED that respondent comply with Rule 1:20-20 dealing with suspended attorneys; and it is further
ORDERED that pursuant to Rule 1:20-20(c), respondent's failure to comply with the Affidavit of Compliance requirement of Rule 1:20-20(b)(15) may (1) preclude the Disciplinary Review Board from considering respondent's petition for reinstatement for a period of up to six months from the date respondent files proof of compliance; (2) be found to constitute a violation of RFC 8.1(b) and RPC 8.4(c); and (3) provide a basis for an action for contempt pursuant to Rule 1:10-2; and it is further
ORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs and actual expenses incurred in the prosecution of this matter, as provided in Rule 1:20-17.
WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this 8th day of October, 2014.
/s/
CLERK OF THE SUPREME COURT