SUPREME COURT OF NEW JERSEY
Disciplinary Review Board
Docket No. DRB 09-103
District Docket No. XIV-05-203E
IN THE MATTER OF
IRWIN B. SELIGSOHN
AN ATTORNEY AT LAW
Decision
Argued: July 16, 2009
Decided: August 25, 2009
Nitza I. Blasini appeared on behalf of the Office of Attorney
Ethics.
Respondent waived appearance for oral argument.
To the Honorable Chief Justice and Associate Justices of
the Supreme Court of New Jersey.
This matter was before us on a motion for final discipline
filed by the Office of Attorney Ethics ("OAE"), based on
respondent’s conviction of second-degree conspiracy to commit
health care claims fraud, third-degree criminal use of runners,
and third-degree tax fraud, in violation of RPC 8.4(b) (criminal
act that reflects adversely on the attorney’s honesty,
trustworthiness or fitness as a lawyer), RPC 8.4(c) (conduct
involving dishonesty, fraud, deceit or misrepresentation), and RPC
8.4(d) (conduct prejudicial to the administration of justice).
The OAE recommended that respondent should be disbarred.
We agree.
Respondent was admitted to the New Jersey bar in 1963. He has
no history of discipline. He has been temporarily suspended in New
Jersey since August 13, 2007. In re Seliqsohn, 192 N.J. 297 (2007).
In August 2007, respondent appeared before the Honorable
Joseph C. Cassini, III, J.S.C., and entered a guilty plea to
three counts of an indictment.
Pursuant to a plea agreement,
respondent pleaded guilty to the following:
second-degree
conspiracy to commit health care claim fraud, in violation of
N.J.S.A. 2C:5-2; third-degree knowingly using a runner, in
violation of N.J.S.A. 2C:21-22.1 and 2C:2-6; and third-degree
filing or preparing a false or fraudulent New Jersey tax return,
a violation of N.J.S.A. 54:52-10 and 2C:2-6.
At the August 2007 proceedings, respondent’s counsel
elicited the factual basis for respondent’s plea:
Q.
Now, Mr. Seligsohn, during the -- the years -October 30, 1993 through September 15, 2005,
did you, on behalf of Goldberger, Seligsohn
Shinrod,
represent a large number of
Am
individuals with respect to personal injury
claims arising from automobile accidents?~
Yes.
A number of these cases, specifically the
cases referred to in Counts 5 through 13 of
the indictment to which you have entered a -a plea of guilty to Counts 4, 15 and 16,
involved accident claims in which either one
of the vehicles, it was claimed, did not
stop or a two-car accident with a number of
people in each vehicle, all of whom claimed
to be injured; is that correct, sir?
Yes.
In retrospect, from reviewing the discovery
provided by the State in this case, do you
acknowledge that these were, in fact, staged
accidents or otherwise never occurred and
that the claims you pursued for the clients
you represented in connection with these
accidents were fraudulent?
Yes.
While you did not specifically know that
these claims were fraudulent,
do you
acknowledge that the facts and circumstances
of these cases were such that you should
have been much more diligent and aware in
accepting and pursuing these cases which led
you to pursue what were, in fact, false
accident claims in violation of the law?
Yes.
Now, furthermore, Mr. Seligsohn, during the
period from July 14, 1999 through 12 -December of the Year [sic] 2001, did you
make a number of check payments from the
Goldberger, Seligsohn & Shinrod operating
account to Daymon (phonetic) Brown, Edward
Campbell, Jr., Louis Campbell, and Richard
Williams?
Yes, I did.
Charges were also filed against respondent’s law firm.
Ao
Ao
On many of these checks there is written in
the memo line i-n-v, and these checks were
caused to be classified in the records of
Goldberger,
Seligsohn
&
Shinrod
as
investigation expenses; is that correct,
sir?
Yes.
And were these items then deducted as
business
expenses
on the
New Jersey
corporation
business
tax
returns
of
Goldberger,
Shinrod
&
Seligsohn,
a
corporation, for the fiscal years ending May
31, 2000 through May 31, 2002?
Yes.
Now, the payments made to these individuals
were not for
any work done
as
an
investigator or otherwise for Goldberger,
Shinrod -- Goldberger, Seligsohn & Shinrod,
but were made to compensate them for
referring clients to the firm and to you; is
that correct?
Yes.
Now, did you know that the payments to these
individuals were for referring clients and
were not for investigatory services and were
not deductible for New Jersey tax purposes
because New Jersey law makes it illegal for
lawyers and other professionals to pay
individuals for bringing them clients?
Yes.
[OAEBEx.D 8-12 to i0-25.]2
In February 2008, Judge Cassini sentenced respondent to
three concurrent terms of three years in prison.3
20AEB refers to the OAE’s brief, dated March 27, 2009.
3 The court sentenced respondent on the second-degree charge to a
term appropriate to a third-degree charge.
4
Following a de novo review of the record, we determine to
grant the OAE’s motion for final discipline.
A criminal conviction is conclusive evidence of guilt in a
disciplinary proceeding. R. 1:20-13(c)(i). In re Maqid, 139 N.J.
449, 451 (1995).
Respondent’s guilty plea establishes his
violation of RPC 8.4(b), as well as RP___~C 8.4(c) and RP__~C 8.4(d).
The level of discipline imposed in disciplinary matters based on the
commission of a crime depends on a number of factors, including the
"nature and severity of the crime, whether the crime is related to
the practice of law, and any mitigating factors such as respondent’s
reputation, his prior trustworthy conduct, and general good
conduct." In re Lunetta, 118 N.J. 443, 445-46 (1989).
Attorneys in New Jersey who have been found guilty of
insurance fraud have received a wide range of suspensions. Se__~e,
e.~., In re Fisher, 185 N.J. 238 (2005) (one-year suspension in a
reciprocal discipline matter from Pennsylvania, where attorney
submitted a phony receipt to an insurance company for the purpose
of obtaining insurance proceeds for his girlfriend, whose computer
had been stolen, and then filed a complaint against the insurance
company, based on the same claim; the attorney was convicted of
insurance fraud, forgery, and conspiracy; prior three-month
suspension considered in aggravation; passage of time, attorney’s
inexperience at time of violation, and lack of financial
motivation considered in mitigation); In re Wiss, 181 N.J. 298
(2004) (in a motion for reciprocal discipline, an attorney who
pleaded guilty to the fifth-degree crime of insurance fraud
received a six-month suspension; the attorney had directed a
member of his staff to falsely notarize a client’s signature on
forms that were then submitted to an insurance company, made
misrepresentations on a court form about the source of the client
referral, and failed to supervise his staff, resulting in
misrepresentations designed to improperly obtain insurance
payments); In re Eskin, 158 N.J. 259 (1999) (in another motion for
reciprocal discipline, an attorney received a six-month suspension
for forgery and falsely notarizing his client’s signature on a notice
of claim that was served after the deadline had expired and for
serving a second notice of claim misrepresenting the date of the
injury to give the appearance that the notice had been timely filed);
and In re Berqer, 151 N.J. 476 (1997) (two-year suspension imposed on
an attorney who submitted false information to his insurance agent,
including an improper jurat, with the intent to defraud the law
firm’s insurance carrier in connection with a fire loss).
In a series of related cases, three attorneys pled guilty to
mail fraud arising from a scheme to defraud insurance companies.
6
In In re Sloane, 147 N.J. 279 (1997), .!n re Takacs, 147 N.J. 277
(1997), and In re Kerriqan, 146 N.J. 557 (1996), the attorneys
submitted false claims to insurance companies, alleging that
either they or their clients had sustained personal injury. Sloane
pleaded guilty to one count of mail fraud and received a two-year
suspension; Takacs was suspended for three years, after pleading
guilty to two counts of mail fraud; and Kerrigan was suspended for
eighteen months because, at the time of his misconduct, he was not
yet an attorney and because he promptly notified and cooperated
with disciplinary authorities.
Respondent’s misconduct is most akin to that of the attorneys
in the mail fraud cases, where fraudulent personal injury claims
were pursued. The record does not reveal in how many instances
respondent participated in this scheme that led to his guilty
plea. The attorney in Sloane pled guilty to one count of mail
fraud and received a two-year suspension. We liken respondent’s
misconduct to that of Sloane and find a two-year suspension
appropriate for this aspect of respondent’s misconduct.
Respondent also pled guilty to one count of tax fraud. A
violation of federal tax law is a serious ethics breach. In re
0ueenan, 61 N.J. 579, 580 (1972). "[D]erelections of this kind
by members of the bar cannot be overlooked. A lawyer’s training
7
obliges him [or her] to be acutely sensitive of the need to
fulfill his [or her] personal obligations under the federal
income tax law." In re Gurnik, 45 N.J. 115, 116-17 (1965) (twoyear suspension for plea of nolo contendere to willfully and
knowingly attempting to evade and defeat a part of the income
tax due and owing by attorney and his wife). "[N]o matter what
the excuse . . . a period of suspension is required in all such
cases." In re Spitzer, 63 N.J. 532, 533 (1973).
Although the level of discipline imposed for~ federal tax
law violation depends on the underlying circumstances of the
matter, in recent years, when an attorney has been guilty of tax
evasion, a two-year suspension has been deemed the standard
measure of discipline, even where the attorney has not been
previously disciplined. See, e.~., In re Mischel, 166 N.J. 219
(2001) (two-year suspension for an attorney with a prior
unblemished history, who pleaded guilty in the Supreme Court of
the State of New York to a charge of offering a false instrument
for filing; the false instrument was a New York State tax return
that she knew contained false and fraudulent deductions); In re
Rakov, 155 N.J. 593 (1998) (two-year suspension for an attorney
with an unblemished disciplinary record, convicted of five
counts of attempted income tax evasion; attorney failed to
8
report the interest paid to him on personal loans on his federal
income tax returns); In re Batalla, 142 N.J. 616 (1995)
(attorney suspended for two years for evading $39,066 in taxes
by underreporting his earned income in 1990 and 1991; prior
unblemished record); and In re Nedick, 122 N.J. 96 (1991) (twoyear suspension for failing to report $7,500 in cash legal fees in
his taxable income; unblemished record and additional mitigating
factors considered). See also In re Tuman, 74 N.J. 143 (1977)(filing
a false and fraudulent joint tax return merited a two-year suspension
from the practice of law); In re Becket, 69 N.J. 118 (1976) (a plea
of guilty to the filing of false and fraudulent tax returns warranted
suspension from practice of law for two years); and In re Gurnik,
supra, 45 N.J. 115 (attorney suspended for a period of two years
after he pleaded nolo contendere to a charge of tax evasion for one
calendar year). But see In re D’Andrea, 186 N.J. 586 (2006) (in a
reciprocal discipline matter from Pennsylvania, the attorney pled
guilty to filing a false federal tax return; eighteen-month
suspension imposed in light of mitigating factors) and In re Kirnan,
181 N.J. 337 (2004) (attorney pled guilty to filing a false federal
tax return; eighteen-month suspension imposed in view of special
circumstances,
investigation).
including
his
cooperation with
a
criminal
In the present matter, respondent’s misconduct was an
intentional act through which his law firm employed deception to
defeat the tax laws. The individuals employed by the firm as
runners were labeled investigators so that their payments could
be deducted on the firm’s corporate tax returns. Respondent’s
conduct warrants discipline as serious as the two-year
suspensions imposed in tax evasion cases.
The appropriate measure of discipline in a runner case,
determined on a case-by-case basis, ranges from a three-month
suspension to disbarment. See, e.~., In re Gross, 186 N.J. 157
(2006) (three-month suspended suspension imposed for the
attorney’s use of a paid runner; the attorney stipulated that he
paid $300 to a runner on at least fifty occasions between 1998
and 2000); In re Pease, 167 N.J. 597 (2001) (three-month
suspension imposed on attorney who paid a runner for referring
fifteen prospective clients to him and for loaning funds to one
of those clients; in mitigation, the attorney had not been
disciplined previously, had performed a significant amount of
community service, and the misconduct was limited to a fourmonth period, which took place more than ten years prior to the
ethics proceeding, when the attorney was relatively young and
inexperienced); In re Breqq, 61 N.J. 476 (1972) (attorney
i0
suspended for three months for paying part of his fees to a
runner from whom he had accepted referrals in thirty cases;
mitigating
factors
included the attorney’s
candor and
contrition); In re Gross, 190 N.J. 194 (2007) (attorney received
a four-month suspended suspension for his participation in his
son’s running scheme by issuing payments to a runner); In re
Chilewich, 192 N.J. 221 (2007) and In re Sorkin, 192 N.J. 76
(2007) (one-year suspensions imposed in companion cases in which
both attorneys admitted having runners refer to them twenty and
fifty cases, respectively, and filed false retainer reports with
the Office of Court Administration; considerable time had passed
between the misconduct and the disciplinary proceedings); In re
Berqlas, 190 N.J. 357 (2007) (on a motion for reciprocal
discipline, attorney received a one-year suspension for sharing
legal fees with a nonlawyer and improperly paying third parties
for referring legal cases to him; the conduct took place over
three years and involved two hundred immigration and personal
injury matters); In re Birman, 185 N.J. 342 (2005) (attorney
received a one-year suspension by way of reciprocal discipline;
he had agreed to compensate an existing employee for bringing
new cases into the office, after she offered to solicit clients
for him); In re Berqer, 185 N.J. 269 (2005) (one-year suspension
ii
imposed on an attorney who received a three-year suspension in
New York for paying two runners nearly $42,000 between January
1995 and December 1996 and for filing about 350 false retainer
statements between January 1995 and August 1996; although the
New York court determined that the attorney had filed 350
inaccurate, incomplete and/or misleading statements, the record
did not reveal the number of cases in which Berger used
misleading information to conceal his use of a runner); In re
Frankel, 20 N.J. 588 (1956) (two-year suspension imposed on
attorney who paid a runner twenty-five percent of his net fee to
solicit personal injury clients); In re Introcaso, 26 N.J. 353
(1958) (three-year suspension for attorney who used a runner to
solicit clients in three criminal cases, improperly divided
legal fees, and lacked candor in his testimony); In re
Pajerowski, 156 N.J. 509 (1998) (disbarment for attorney who for
almost four years used a runner to solicit personal injury
clients, split fees with the runner, and compensated him for
referrals in eight matters involving eleven clients; although
the attorney claimed that the runner was his "office manager,"
in 1994 the attorney had compensated him at the rate of $3500
per week ($182,000 a year) for the referrals); and In re Shaw,
88 N.J. 433 (1982), (disbarment for attorney who used a runner
12
to solicit a client in a personal injury matter, "purchased" the
client’s cause of action for $30,000, and then settled the claim
for $97,500; the runner forged the client’s endorsement on the
settlement check, depositing it in his own bank account, rather
than the attorney’s trust account; the attorney also represented
a passenger in a lawsuit against the driver of the same
automobile and represented both the passenger and the driver in
litigation filed against another driver).
Here, we have no details about the number of times that
respondent paid an individual for referring clients to him or to
his firm. We know that the misconduct lasted over two years.
An attorney who was guilty of misconduct that combined two
of respondent’s three criminal violations (insurance fraud and
tax fraud) was disbarred. In In re Struhl, 189 N.J. 524 (2007),
the attorney pled guilty in the Superior Court of California to
two counts of a felony complaint, which charged him with
solicitation, acceptance or referral of fraudulent insurance
claims, and willfully making or signing false tax returns.
Struhl allowed his name and license to practice law to be used
as a "shill" for operations conducted by non-attorneys.
Arguably,
Strulh’s conduct was more troubling than
respondent’s. That is not to say, however, that the two do not
13
warrant the same measure of discipline.
Respondent’s
participation in pursing personal injury claims following staged
accidents to collect insurance proceeds, his filing of fraudulent
corporate tax returns, and his use of runners constituted conduct
that cannot be tolerated in the legal profession.
His actions
showed an all-embracing lack of moral character. This is not the
situation where a long-time member of the bar abandons or neglects
his practice due to alcoholism or drug abuse or mental illness.
This attorney has exhibited an utter disregard for the obligations
placed on members of the bar. That he had a previously unblemished
career of forty-six years at the bar is not enough to mitigate his
misconduct. We recommend that he be disbarred.
Member Yamner recused himself.
We further determine to require respondent to reimburse the
Disciplinary Oversight Committee for administrative costs and
actual expenses incurred in the prosecution of this matter, as
provided in R__~. 1:20-17.
Disciplinary Review Board
Louis Pashman, Chair
By:
~~
~ef Counsel
14
SUPREME COURT OF NEW JERSEY
DISCIPLINARY REVIEW BOARD
VOTING RECORD
In the Matter of IRWIN B. SELIGSOHN
Docket No. DRB 09-103
Argued:
July 16, 2009
Decided:
August 25, 2009
Disposition: Disbar
Members
Disbar Suspension Reprimand Dismiss Disqualified
Pashman
X
Frost
X
Baugh
X
Clark
X
Doremus
X
Stanton
X
Wissinger
X
Yamner
X
Zmirich
X
Total:
9
Did not
participate