TENDERED.) CHIEF JUSTICE RABNER: MS. GENDEL, YOU WILL HAVE THE OPPORTUNITY
TO SPEAK AFTER YOUR COUNSEL IF YOU WOULD LIKE TO, IF YOU WANT TO SPEAK ABOUT THAT IN
ADVANCE YOU CAN DO SO PROOI VATLY, YOU WILL HAVE THE OPPORTUNITY TO TRAES THE COURT I AM
SAYING, IF YOU WOULD LIKE TO. YOU NEED NOT. YOU NEED NOT DO SO. MARC D.
GARFINKLE: THANK YOU. THE COURT: MS. KIM. HOECHIN KIM: GOOD
AFTERNOON, CHIEF JUSTICE AN ASSOCIATE JUSTICES OF THE COURT, BEFORE THIS HONORABLE COURT
IS THE STIGS OF THE DISCIPLINE REVIEW BOARD THAT FOUND RESPONDENT MARCY E GENDEL COMMITTED,
TWO, IN TWO DISCRETE MISCONDUCT. FERS HER REAL ESTATE PRACTICE, WHICH INVOLVED
INFLATING EXPENSES AN CHARGING NONEXISTENT WIRES OR DLIF REFEES IN M OVER 120 REAL ESTATE
TRANSACTIONS FROM ABOUT 2001 TO 2015 AND TWO, APPLYING FOR AND RECEIVING SANDY RELIEF
AID FOR A RESIDENT -- RESIDENCE IN POINT PLEASANT BEACH THAT WAS NOT HER PRIMARY RESIDENCE
AT THE TIME TROP PICK KAL STORM SANDY MADE LAND FALL IN NEW JERSEY AN ACTUALLY WAS BEING
RENTED TO TENANTS WHO WERE DISPLACED FROM THE STORM. THE BOARDS DECISION WAS
UNANIMOUS IN ITS ANALYSIS OF THE RULES OF PROFESSIONAL CONDUCT VIOLATIONS COMMITTED BY
MS. GENDEL. THE MORE DIFFERENT QUESTION, AS EVIDENCED BY THE BOARDS SPLIT RECOMMENDATION
OF A TWO-YEAR SUSPENSION VERSUS DISBARMENT IS THE APPROPRIATE SANCTIONS TO BE IMPOSED
FOR MS. 2010'S VIOLATIONS. AS AN INITIAL MATTER, THE O A E WOULD OPPOSE THE
REQUEST OF THE SENSE IS YOUR AS MADE BY MS. GENDEL; THAT SANCTION APPEARS TO TAKE INTO
ACCOUNT ONLY THE RULES OF PRACTICE VIOLATIONS OF INFLATING REAL ESTATE RECORDING FEES
PER THIS COURT'S DECISION AND THE BOARD'S DECISION IN RE: FORTUNE NAT TOE, WHICH IS THE
CASE RELIED UPON BY THE ATTORNEY OF ATTORNEY ETHICS IN REQUIRING MS. GENDEL TO GO BACK
SEVEN YEARS AN REIMBURSE ANY INFLATED COSTS TO EITHER THE BUYER OR THE SELLER OF THOSE
REAL ESTATE TRANSACTIONS THAT SHE HANDLED IMPROPERLY. EVEN IN THAT REGARD,
MS. GENDEL'S REAL ESTATE PRACTICE, THE BOARD'S DECISION TOOK INTO ACCOUNT THE ADDITIONAL
VIOLATIONS OF INFLATING THE RULES OF THIRD PARTY VEND TORE OR EVEN EVEN CREATING NONE
EX ES EXTENT BILLS FOR MS. 2010 TO TAKE FOR HERSELF SO PER THE BOARD'S STIGS, IT'S CLEAR
THAT THE BOARD FELT A KRENS IS YOUR FOR JUST THE PACKET VIOLATIONS WAS NOT CONSISTENT
AN IT IS EVIDENT THAT THE BOARD WAS OFFENDED BY MS. GENDEL'S LACK OF CANDOR IN APPLYING
FOR AID FROM BOTH THE STATE AN THE FEDERAL GOVERNMENT FOR A HOUSE AT THE SHORE WHERE SHE
WAS NOT LIVING. IT WAS CLEAR AND IN THE INVESTIGATIONS WITH THE O A E AND AT THE
HEARING THAT MS. GENDEL WAS LIVING AT THE TIME IN NORTH JERSEY WITH A FRIEND AND THAT SHE
ACTUALLY HAD BEEN RENTING THAT BEACH HOUSE TO TENANTS OVER THE SUMMER AND HER REAL ESTATE
AGENT AT THE TIME HAD RENTED THAT SAME PROPERTY FOR THE EPD OF SEPTEMBER THROUGH THE WIN
AT THE TER TO A FAMILY. TURG THE HEARING, MS. GENDEL APPEARED TO SHIFT
RESPONSIBILITY TO HER REAL ESTATE AGENT CLAIMING THAT SHE HAD NEVER SEEN A LEASE FOR THAT
PROPERTY AND SHE HAD ALWAYS INTENDED TO RETURN TO THE PROPERTY SUCH THAT SHE FELT IT
APPROPRIATE TO APPLY SANDY RELIEF DESPITE THE FACT THAT THE APPLICATIONS THEMSELVES MADE
IT QUITE CLEAR THAT RELIEF WOULD ONLY BE HAD BY AN OWNER OF THE PROPERTY WHO WAS RESIDING
IN THE PROPERTY AT THE TIME OF SUPER STORM SANDY AN THAT WAS NOT THE CASE. IT WAS MADE
PLAIN FROM SUBPOENAING RECORDS FROM BOTH FEEM MA AN FROM THE STATE REGARDING THEIR
INVESTIGATIONS INTO THE MATTER THAT SHOW THAT MS. GENDEL'S DRIVER'S LICENSE DOES NOT LIST
THAT BEACH HOUSE AS HER RESIDENCE. I BELIEVE IT WAS TAKEN INTO ACCOUNT HER REGISTRATION
FOR HER LAW PRACTICE AND HER HOME RESIDENCE, ALSO, WAS NOT AT THAT BEACH HOUSE.
AND SO FOR THE CONTINUING COURSE OF CONDUCT OF THE FRAUD, IT WAS QUITE CLEAR THE BOARD
FELT THAT, AT LEAST, A TWO-YEAR SUSPENSION WAS REQUIRED OF MS. GENDEL'S LICENSE.
GIVEN THAT THE OFFICE OF ATTORNEY ETHICS POSITION AT THE HEARING AND AT THE BOARD WAS A
SHORT-TERM SUSPENSION, IT'S DIFFICULT TO BE CONSISTENT IN ARGUING THAT DISBARMENT IS
APPROPRIATE HERE. I WAS THE TRIAL ATTORNEY AND I DID ARGUE THE MATTER BEFORE
THE BOARD AND I THOUGHT THE BOARD WOULD TAKE INTO ACCOUNT MS. 2010'S LACK OF HISTORY AN
GIVE MORE CREDIT FOR THAT, BUT ON THE FLIP SIDE, MS. GENDEL IS A 40-PLUS YEAR PRACTITIONER
OF REAL ESTATE LAW SUCH THAT SHE SHOULD HAVE KNOWN BETTER, QUITE FRANKLY. AND
SO, IN TRYING TO PREPARE FOR THIS ARGUMENT BEFORE THIS COURT TODAY, I DID LOOK AT HOW
THE PUBLIC MEMBERS VOTED AT THE BOARD AND THE SPLIT FOUR AND FOUR AND I DID NOTE THAT
TWO PUBLIC MEMBERS FOUND THAT DISBARMENT TO BE APPROPRIATE VERSUS THE ONE ON THE THREE
ATTORNEY MEMBERS WHO RECOMMENDED A TWO-YEAR SUSPENSION. SO ON THAT BASIS,
THE ATTORNEY DISCIPLINE SYSTEM IT IS TO INSTALL PUBLIC. RESTORE CONFIDENCE
IN THE BAR THE O A E SUBMITS THAT THE BOARD'S RECOMMENDATION OF A DISBARMENT, PARTICULARLY
THOSE TWO PUBLIC MEMBERS RECOMMENDING DISBARMENT WOULD BE APPROPRIATE HERE. THE
COURT: THANK YOU, QUESTIONS ANYONE? THIS. THANK YOU, MS. KIM. MR.
GARFINKLE. MARC D. GARFINKLE: GOOD AFTERNOON, CHIEF JUSTICE AN ASSOCIATE
JUSTICES. I AM DELIGHTED TO BE HERE AND ANY LAWYER WHO DOESN'T FEEL SOME WHAT
AWE STRUCK IN THIS FORUM SHOULD RECONSIDER WHAT HE OR SHE DOES. I WOULD HOPE
THAT YOU HAVE A LITTLE INDULGENCE FOR ME IN THE FINGER WHEN I MAY SEEM A BIT OBTUSE AN
SELF REFER REN SHL, BUT I WILL MOVE THROUGH THAT QUICKLY AN GET TO OUR POENTS OF GREAT
SIGNIFICANCE QUICKLY, AS WELL. IN MAKING A PRESENTATION SUCH AS THIS, I ALWAYS
LOOK FOR A THEME. IT IS SOMETHING THAT TRIAL JURORS DO EARLY ON AND I SOMETIMES GO TO
STRANGE SOURCES FOR MY THEME SO BOB DIL LAN SONGS AN YES, I DID DESH PROVERBS AN HAITIAN
PROPER VERBS AN IN ADDITION TO SEEMING SOLICITOUS OF JUSTICE PIERRE LOU, TODAY, IT WAS
A KREE OEL PROVERB THAT KEPT RESONATING IN MY MIND. JUSTICE PATTERSON: THE JUSTICE WILL INTERPRET FOR US. MARC D. GARFINKLE: BLANK, IT MEANS THAT
UNZING UNDERSTANDING. I HAVE BEEN AN ETHICS ATTORNEY NOW, EXCLUSIVELY, I SAY
ETHICS, BAR ADMISSION, JUDICIAL CONDUCT AN LEGAL ETHICS AND DISCIPLINE, EXCLUSIVELY FOR
TWELVE YEARS AND I FWAN THIS JOURNEY 20 YEARS AGO WHEN I SIGNED UP FOR MY DISTRICT ETHICS
COMMITTEE AN WITH THAT EXPERIENCE, I GOT A SENSE OF WHAT HAPPENS IN AN ETHICS PROCEEDING
AND WHAT SHOULD HAPPEN. ONE OF THE THENGS I RARELY DO IS ANTICIPATE WHAT THE
ULTIMATE DISCIPLINE IS FWOEG TO BE FOR A CLIENT. I CAN'T BECAUSE EVEN THE DISCIPLINARY
REVIEW BOARD IS OFTEN DIVIDED AND IT WOULD BE PRESUMPTUOUS AND SILLY OF ME TO ANTICIPATE
WHAT A CLIEPT'S DISCIPLINE SHOULD BE. I MIGHT SAY ON A VERY OCCASION TO THE
CLIENT, DON'T WORRY YOU'RE NOT GOING TO GET DISBARRED FOR THIS, DON'T WORRY YOU'RE GOING
TO GET SUS SPENTED FOR THIS BUT BEYOND THAT I, IT IS RARE I WOULD VOICE AN OPINION AS
TO WHAT THE ULTIMATE DISCIPLINE WILL BE, IF FOR NO REASON I THINK THE DISCIPLINARY BOARD
DOES AN EXCELLENT JOB OF THAT IN MOST CASES. MY EXPERIENCE HAS ALSO LED ME
TO OTHER CONCLUSIONS; AND, THAT IS, IT IS INDEED TRUE THAT THIS PROCESS IS NOT PENAL.
IT IS MORE IMPORTANT THAT IN YOUR ROLE, WHICH WE'RE FORTUNATE TO HAVE THE SUPREME COURT
IN THIS ROLE AND NOT THE ATTORNEY GENERAL'S OFFICE, BUT IN YOUR ROLE AS THE ARBITER AND
THE EXECUTOR OF DISCIPLINE, I LOOK AT ALL SIDES AND IN SO DOING, YOU LOOK NOT ONLY AT
WHAT WAS DONE, BUT AT WHO DID IT AN HOW AND I HAD BEEN A PUBLIC DEFENDER IN LIVINGSTON
I HAD BEEN FOR 20 YEARS AN YOU CAN ASK ME WHAT HAPPENS ON ON THIRD OFFENSE DWI OR A FIRST
SHOPPING LIFT, BUT IN AN ETHICS MATTER DISCIPLINE IS AVAILABLE AT EVERY LEVEL OF OFFENSE
BECAUSE IT DEPENDS ON WHAT WAS IN YOUR HEART AND WHAT WAS IN YOUR MIND AND IT DEPENDS
ON MITIGATING AN AGGRAVATING FACTORS AN THESE ARE NOT THE SAME AS WE SEE IN A CRIMINAL
CASE. IN A CRIMINAL CASE, THE MITIGATING FABT TORS MITIGATE THE OFFENSE.
THEY SAY, WELL, SHE KILLED HIM BUT SHE DID IT IN SELF DEFENSE, OR HE STOLE THAT, BUT HE
DID IT OF NECESSITY. HERE, THE MITIGATING AND AGGRAVATING FACTORS MITIGATE
OR AGGRAVATE THE QUANTUM OF DISCIPLINE THAT SHOULD BE ADMINISTERED. AND I AM CERTAINLY
PLEASED THAT MS. GENDEL KIM, RECOGNIZED THAT PERHAPS THE D R B DID NOT GIVE FULL CREDIT
FOR THE MITIGATING FACTORS AN I THINK THAT THEY THROUGH IN SOME AGGRAVATING FACTORS THAT
DIDN'T EX ES. THEY ASSUMED THAT LFS EVEN THE EVENING NATURAL FRAUD. NOW,
IT'S NOT VERY BECOMING OF AN ATTORNEY TO HAVE TO SAY OF HIS CLIENT, WHEN THE CLEENT IS
ALSO AN ATTORNEY, THAT SHE WAS NAIVE OR THAT SHE WAS CARELESS OR THAT SHE WAS TOO TRUSTING.
THOSE ARE NOT QUALITIES WE ADMIRE IN ATTORNEYS, BUT THAT'S WHAT HAPPENED HERE.
THERE WAS NO FRAUD. FOR 40 SOME ODD YEARS MARCY GENDEL HAD AN ACTIVE REAL ESTATE PRACTICE
AND HAD NO INTERFACE WITH THE DISCIPLINARY SYSTEM. FOR MANY OF THOSE YEARS,
SHE TAUGHT OTHER ATTORNEYS. SHE PARTICIPATED IN NATIONAL SEMINARS AND NATIONAL PROGRAMS
TO INDICATE COUNSEL EDUCATE COUNSEL LAWYERS IN HER COMMUNITY WOULD CALL HER WITH THE TOUGH
REAL ESTATE QUESTIONS. SHE LOVED REAL ESTATE AND I DON'T THINK THAT THE CREDIT AND I WILL
GET INTO AN A LITTLE MORE DETAIL, BUT I DON'T THINK SHE WAS GIVEN FULL CREDIT FOR THE
MITIGATING FABT TORS WHICH WERE ABUNDANT AND THE AGGRAVATING FACTORS WHICH I THINK, AS
I NOW HEARD THEM, WERE MISUNDERSTOOD. WE LOOK FIRST AT THE FORTUNATE TOE CASES,
MS. GENDEL GOT INVOLVED IN REAL ESTATE BECAUSE SHE LOVED REAL ESTATE. SHE NEVER NEEDED
THE MONEY. SHE NEVER NEEDED TO PRACTICE. SHE NEVER NEEDED TO WORK. SHE CERTAINLY WASN'T
DEPEND DEPARTMENT ON THE SHAVINGS ON THE LITTLE UP BUMPS ON THE ROUNDING UP THAT DEFINE
THE FORTUNE NAT TOE VIOLATIONS. AND THEY WERE NUMEROUS, BUT FRANKLY IN VIEW OF THE NUMBER
OF CASES THAT SHE HANDLED, THE PERCENTAGE WAS NOT AS OVERWHELMING AS TO MAKE ONE THING
THAT IT WAS WHAT SHE DID IN EVERY CASE BUT IT WAS THE WAY SHE WAS TAUGHT HOW TO DO REAL
ESTATE AN EVERY ATTORNEY DOING REAL ESTATE WAS AWARE OF OTHER ATTORNEYS WHO DID THIS FOR
A LONG TIME. IT BECAME CLEAR, YOU CAN'T DO THIS AND THEN THE FORTUNATE TOE
CASE CAME DOWN AND AT THAT TIME FOR PERMANENT REASONS, SHE DIDN'T GET THE MEMO. L SHE
DIDN'T REALIZE THAT THERE WAS ACTUALLY NOW A SUPREME COURT DECISION WHICH SAID YOU CAN'T
ROUND UP, YOU CAN'T DO THAT. AND SHE CONTINUED TO DO THAT. IT WAS THE WAY SHE LEARNED.
OF COURSE, SHE DID MAKE REK COME PENS TO EVERYBODY. SHE HAD HER BOOKS REVIEWED AND
ULTIMATELY WORKED OVER BY A LOCAL ANGEL LOW WHO IS A FORMER DISCIPLINARY AUDITOR AN A CERTIFIED
FRAUD EXAMINER AND THAT'S WHO DETERMINED WHERE SHE WENT WRONG AND WHAT SHE OWED AND TO
WHOM SHE OWED IT AND SHE MADE EVERYBODY WHOLE. I AM NOT SURE WHAT THE REFERENCE
WAS TO CREATING NONEXISTENT BILLS, BUT IF I AM NOT MISTAKEN, THERE WAS SOME STINS INVOLVING
A SURVEYOR AND ONE OF THE SURVEYORS SHE USED -- AN SHE USED HIM BECAUSE SHE BASICALLY
LIKED HIM. HE WAS ELDERLY. HE WAS A SOLO. AND HE, ACCORDING TO MS. GENDEL, REALLY DIDN'T
LIKE TO DO METES AND BOUNDS DESCRIPTIONS AND WAS SLOW IN DOING THEM AND SO SHE DID THEM
FOR HIM WITHOUT HIS KNOWLEDGE BECAUSE HE DIDN'T KNOW THAT IN A PARTICULAR DEAL A METES
AND BOUNDS DESCRIPTION WAS FWOEG TO BE REQUIRED AND SO WHEN THAT HAPPENED RATHER THAN
CALL HIM UP AND SAY WE NEED A METES AND BOUNDS DESCRIPTION, SHE DID IT HERSELF. SHE
ACTUALLY TAUGHT HERSELF HOW TO TO THIS OR LEARNED HOW TO DO THIS BECAUSE OF THIS ONE PARTICULAR
SURVEYOR AND IN THOSE CASES SHE WENT AN SHE DID IT AN SHE CHARGED FOR IT AN SHE KEPT THE
MONEY. PERHAPS THAT'S THE REFERENCE AN WE KNOW THAT'S WRONG, BUT HOW WRONG IS IT, THAT'S
THE DETERMINATION YOU WILL MAKE SHE DID CONTINUE HER PRACTICE FOR A LONG TIME DOING WHAT
SHE SHOULD NOT HAVE DONE AND THEN SHE WAS REMORSEFUL. SHE WAS COOPERATIVE. SHE MADE
EVERYBODY WHOLE. AND THOSE ARE MITIGATING FACTORS WHICH I THINK -- JUSTICE
PATTERSON: COUNSEL, AS YOU WERE DESCRIBING THE ROUNDING UP ISSUE, YOU SAID IT BECAME
-- I DON'T WANT PUT -- I WANT TO PARAPHRASE WHAT YOU SAID. YOU SUGGESTED SOMETHING HAPPENED
PRIOR TO THE FORTUNE NAT TOE DECISION THAT MADE IT APPARENT THAT THAT WAS NEVER ETHICAL
LY CORRECT. MARC D. GARFINKLE: IT NEVER WAS. JUSTICE PATTERSON:
I THOUGHT, IN LISTENING TO YOU, IT SEEMED LIKE YOU WERE SAYING THAT SHE AT ANY TIME GET
THE MEMO, YOU WEREN'T TALKING LITERALLY, BUT YOU SAID SOMETHING LIKE IT BECAME OBVIOUS
IT WAS NOT CORRECT IN FORTUNE NAT TOE. WAS THERE SOMETHING PRIOR TO FORTUNE
NAT TOE THAT SIGNALLED TO THE REAL ESTATE COMMUNITY THAT THIS WAS NOT THE WAY TO GO.
FAR GAR I DID HEAR THAT AMBIGUITY AS I HEARD MYSELF SPEAK. PRIOR TO FORTUNE NAT TOE,
IT STILL WASN'T RIGHT. FORTUNE NAT TOE JUST CODIFIED THAT. AND YET IT WAS
ONE OF THESE THINGS THAT WE OVERLOOK. LAWYERS TEND TO TO THAT. FOR EXAMPLE, WE LOOK
AT A PERSONAL INJURY RELEASE THAT SAYS FOR SUCH AN AMOUNT OF MONEY IN HAND PAID, I WOULD
GIVE THIS RELEASE AN THAT IN HAND PAID DOESN'T HAPPEN, NOT FOR WEEKS OR MONTHS SOMETIMES
BUT WE LOOK AT IT AN SAY, WELL THAT'S OKAY WE KNOW WHAT IT MEAN. IT WAS THAT SORT OF
CASUAL ATTITUDE ABOUT IT. ONE OF THE REASONS MS. GENDEL WAS ATRABTD TO REAL
ESTATE WAS SHE THOUGHT IT WAS NICE AND EASY. EASY IN THE SENSE THAT THERE WAS NOT FWOEG
TO BE THIS SENSE OF EX ABSENT IT TUD AS IF SHE WAS WORKING WITH DEB BEN MUCHERS AN BUSINESS
DEALS OF ANOTHER NATURE. HERE IT WAS A COMFORTABLE PRACTICE WITHIN A PRACTICE AND
SHE GOT USED TO IT. IT WAS REALLY NOT MUCH MORE THAN THAT AND NOT MUCH LESS
THAN THAT. IN THE MATTER OF THE BEACH HOUSE, I THINK IT WAS CLEARLY MISUNDERSTOOD.
SHE HAD, FOR EXAMPLE, AS HER TRAES ON HER DRIVER'S LICENSE, SHE HAD THE TRAES OF AN
OFFICE NEAR HER HOME. IT WAS HER MISTAKE MISTAKEN BELIEF THAT YOU HAVE AN OFFICIAL ADDRESS
IN NEW JERSEY AND THAT OFFICIAL TRAES IS THE TRAES AT WHICH YOU SHOULD BE RECEIVING YOUR
MAIL; THAT WAS NOT -- THAT'S NOT THE WAY IT WORKS. YOU HAVE YOUR TRAES AN YOU CAN CHOOSE
YOUR MAILING ADDRESS, BUT SHE KEPT A DIFFERENT ADDRESS ON HER DRIVERS LICENSE. IT WAS
ALWAYS HER INTENTION THAT THE BEACH HOUSE WAS GOING TO BE WHERE SHE LIVED. AND SHE DIDN'T
HAVE IT RENTED AT THE TIME, NOT TO HER KNOWLEDGE. APPEND SHE DID NOT REGULARLY RENT IT.
THERE WERE TIMES IN THE PAST WHERE SHE WOULD RENT IT FOR A PERIOD OF A WEEK OR A MONTH
IN PRIOR YEARS TO A TENANT, BUT THIS YEAR, SHE WAS REQUESTED BY HER BROKER, WHO SAID
MARCY, LET'S RENT YOUR PLACE THIS WREER YOU'RE NOT USING IT AN SHE SAID NO I'M NOT GOING
TO RENT IT. SHE ENTERTAINED A CONVERSATION WITH HIM AN THEN DECIDED NO, I AM NOT GOING
TO RENT IT BECAUSE I WANT TO FIX IT UP. I AM NOT GOING TO MOVE INTO IT UNTIL I MAKE THESE
REPAIRS. THIS IS A HOUSE RIGHT ON THE BOARD WALK. IT HAS GREAT VALUE. SHE DID INTEND
TO LIVE THERE. SHE INTENDED THAT TO BE HER PERMANENT RESIDENCE AND SHE WAS LIVING WITH
A FRIEND. NOW, THE REAL ESTATE BROKER AND HE WAS NOT CALLED TO TESTIFY BY
THE ON A E, THE REAL ESTATE BROKER WENT ON AN RENTED IT TO SOMEONE ANYHOW. WE ASSUME
HE GOT PAID. MARCY WAS -- MS. GENDEL WAS NEVER SHOWN A LEASE. SHE WAS NEVER SHOWN A
CHECK. SHE WAS NEVER MADE AWARE THAT THE HOUSE WAS BEING ROOITD IN RESIDED IN. LFS NO
EVIDENCE AT ALL AT THE HEARING TO CONTRADICT THIS SFLFRMTHS WHO SIGNED THE LEASE, FWAR GAR WE
DON'T KNOW. WE NEVER SAW A LEASE. THE BROKER AND THIS TENANT THAT WE KNOW NOTHING ABOUT.
THE COURT: WAS THERE A SECURITY DEPOSIT, FIRST MONTH'S RENT AND SO ON?
MARC D. GARFINKLE: WE DON'T KNOW. MS. GENDEL NEVER SAW IT. SHE WAS NER
TOLD ABOUT IT. IT LOOKED LIKE SHE WAS BEING SCAMMED BY HER BROKER WAEN WAEN YOU'RE SAYING
SHE NEVER RECEIVED ANY MONEY. MARC D. GARFINKLE: SHE NEVER SAW A CORRECT.
SHE NEVER SAW A COPY OF A LEASE. SHE NEVER SAW ANYTHING. JUSTICE PIERRE-LOUIS:
WAS THERE ANY EVIDENCE THAT THE RENTAL CHECKS WENT TO THE BROKER. MARC D.
GARFINKLE: THERE IS NO EVIDENCE OF ANYTHING. THE WAY THIS CAME TO BE WAS SHE WENT TOWN
THERE AT SOME POINT, WEEKS FOLLOWING SANDY AND WHILE SHE IS ON THE BOARD WALK, THERE IS
A POP OPEN OFFICE THAT SAYS, HEY, SIGN UP FOR SANDY RELIEF AND IT'S A POP UP OFFICE, SHE
SITS THERE AND AS -- YOU ALL ARE PROBABLY BETTER LAWYERS THAN I BUT I KNOW I PROBABLY
DON'T PAY AS MUCH ATTENTION TO MY OWN MATTERS AS I DO TO MY CLIENT MATTERS AN SHE DIDN'T
READ THE FINE PRINT AN SHE SIGNS ON THE DOTTED LINE. JUSTICE PATTERSON:
BY THE TIME SHE WENT DOWN THERE DID SHE SEE THE PERSON. MARC D. GARFINKLE:
SANDY HAD HAPPENED, THE PERSON HAD VACATED. JUSTICE PATTERSON: DURING THIS
SITUATION WHEN SOMEONE WAS RENTING THE PLACE WITHOUT HER KNOWLEDGE SHE NEVER VISITED FWAR
GAR EXACTLY EXACTLY. SHE SAID THIS AT THE HEARING, SHE NEVER KNEW THERE WAS A TENANT
THERE AN HER COMMUNICATION HAD CEASED WITH THE BROKER WHEN SHE SAID NO I'M NOT GOING TO
RENT IT THIS YEAR I'M GOING TO HAVE IT FIXED UP AND I'M FWOEG TO MOVE IN THERE.
THE COURT: MR. GARFINKLE, HELP US UNDERSTAND SOMETHING. MY NOTES SUGGEST THAT THERE WERE
TWO TENANTS WHO SIGNED A LEASE TO RENT THE PROPERTY FROM OCTOBER 2ND, 2012 THROUGH MAY
FIRST OF THE FOLLOWING YEAR. WHERE DOES THAT INFORMATION COME FROM ASSUMING
MY NOTES ARE ACCURATE? MARC D. GARFINKLE: APPARENTLY FROM THE BROKER.
WE HAVE NOT SEEN THE LEASE. THE COURT: IT'S NOT PART OF THE RECORD, FWAR
GAR CORRECT, TO MY RECOLLECTION SFLFRJT WE WILL ASK MISS KIM ABOUT THAT, AS WELL.
MARC D. GARFINKLE: SO SHE FILES FOR SANDY RELIEF. JUSTICE WAINER APTER:
JUST TO CLARIFY, MS, ON THE TIME LINE, SO YOUR CLIENT LIVED IN THE BOARD WALK HOME FOR
THREE YEARS AND THEN ONLY STOPPED LIVING IN IT IMMEDIATELY BEFORE HURRICANE SANDY.
MARCY F. GENDEL: YES. MARC D. GARFINKLE: I DON'T KNOW WHEN SHE WAS LIVING
IN IT PERMANENTLY BUT IT WAS HER INTENTION AT THAT POENT WHEN SHE DECIDED I AM NOT GOING
TO REPRESENT IT, I AM GOING TO HAVE IT FIXED I'M GOING TO MOVE IN THERE THAT THAT WAS
HER PERMANENT RESIDENCE BECAUSE THE OTHER RESIDENCE, THE ONE SHE WAS LIVING IN WAS HER
FRIEND. MARCY F. GENDEL: NO. THE COURT: WOULD YOU LIKE TO
SPEAK TO YOUR CLIENT FOR A SECOND? MARC D. GARFINKLE: I WOULD. THANK YOU.
(DISCUSSION OFF THE RECORD.) MARC D. GARFINKLE: THE PERIOD
OF. MARCY F. GENDEL: OCTOBER OF 2009 FWAR GAR FROM OCTOBER OF 2009 TO THE
FALL PRIOR. MARCY F. GENDEL: UNTIL SEPTEMBER 2012. MARC D.
GARFINKLE: THE FALL PRIOR TO SANDY SHE WAS LIVING THERE, THAT WAS HER HOME. THE
COURT: THE PROPERTY WASN'T RENTED OUT OVER THE SUMMER. MARC D. GARFINKLE:
THERE WERE TIMES, I BELIEVE THAT SHE WOULD PERIOD PARTICULARLY RENT IT OUT IF SHE WAS
GOING AWAY. SHE WOULD RENT IT FOR A PERIOD USING THIS SAME BROKER AND THE BROKER CAN
DID PRESENT HER WITH A LEASE AN SAY HEY I GOT SOMEBODY WHO WANTS TO MOVE IN THERE SO WHEN
I SAID THERE WAS NO LEASE, THERE WAS NEVER A SIGNED LEASE. THERE WAS NEVER NOTICE TO
HER THAT THERE WAS A TENANT, ALBEIT THERE WAS, BUT SHE MOVED OUT IN ORDER TO HAVE THE
WORK DONE SO THAT SHE COULD MOVE IN. ULTIMATELY, THE WORK WAS FWUN FOLLOWING SANDY AND
AFTER MANY PAYMENTS TO THE BUILDER THE BUILDER WENT BANKRUPT AND SO SHE BASICALLY SOLD
THE PROPERTY FOLLOWING SANDY SO SHE NEVER LIVED THERE AGAIN. IT WAS FOR A LONG TIME HER
PRIMARY RESIDENCE, THEN SHE MOVED OUT TO LIVE A WITH A FRIEND SO THAT THE WORK COULD GET
DONE SO SHE COULD MOVE BACK IN. SO ULTIMATELY SHE NEVER LIVED THERE DURING SANDY AND
THAT WAS HER MISTAKE. IT WASN'T HER PRINCIPAL RESIDENCE DURING SANDY, BUT THAT WAS HER
MISTAKE. AND HAD THERE NOT BEEN A TENANT SHE WOULD NEVER HAVE BEEN AWARE OF
THIS AND SHE PROBABLY WOULD HAVE COLLECTED SANDY BENEFITS AND SHE WOULD WOULD NOT HAVE BEEN
ENTITLED TO THEM BECAUSE SHE WAS T NO LIVING THERE AT THE TIME. BUT, AS SOON
AS SHE WAS TOLD, HEY, SOMEBODY ELSE, YOUR TENANT FILED FOR BENEFITS, AS WELL, SHE WITH
TRUE HER APPLICATION FOR BENEFITS. SHE NEVER INTENDED TO TESTIFY FRAUD ANYBODY AND SHE
NEVER IN FACT DEFRAUDED ANYBODY. SHE WAS MISTAKEN. SHE WAS MISTAKEN WHEN SHE SAID
THAT SHE LIVED -- THAT THAT WAS WHERE SHE WAS LIVING AT THE TIME OF THE SANDY. THAT WAS
HER LAXITY. THAT WAS HER FAILURE TO READ THE FINE PRENT, BUT THERE WAS NEVER AN IN TEPT
TO TESTIFY FRAUD. THERE WAS NEVER AN INTENT TO ACQUIRE GOVERNMENT MONEY, TAXPAYER'S MONEY
THAT SHE WASN'T ENTITLED TO. THE COURT: THE D R B'S DECISION SAYS ACCORDING
TO RESPOND TENT SHE RECEIVED A COPY OF THE LEASE ON OCTOBER 12TH OF 2012 TWO WEEKS BEFORE
SUPER STORM SANDY. MARCY F. GENDEL: I COULDN'T HEAR THAT. THE COURT:
I'M SORRY, YOU CAN'T TESTIFY. MARCY F. GENDEL: NO, I SAID I COULDN'T HEAR.
THE COURT: PAGE 50 OF THE D R B'S DECISION ATTRIBUTES TO RESPONDENT THAT
YOU RECEIVED A COPY OF THE LEASE ON OCTOBER 12TH, 2012, TWO WEEKS BEFORE SUPER STORM SANDY.
MARC D. GARFINKLE: THAT'S CORRECT, IT WAS AN UNSIGNED LEASE. THEY ASKED
HER TO SIGN IT AND SHE SAID NO I AM NOT INTERESTED. THIS BROKER COULD HAVE LINED UP
PEOPLE AND FOUND LEASES FOR THAT PROPERTY. IT IS QUITE A DIRE ABDOMINAL PROPERTY AND SHE
SAID NO I AM NOT LEASING IT AN HE WENT AHEAD AND LEASED IT ANYHOW. WE'VE NEVER SEEN A
SIGNED LEASE SIGNED BY THE LESSOR. THERE IS NOT ONE, IF IT WAS SIGNED BY THE BROKER WE
DON'T KNOW ABOUT IT. THERE WAS NEVER AN INTENTION FOR HER TO SIGN THE LEASE AT THAT
TIME AND SHE DID ENGAGE A CONTRACTOR TO DO THE REPAIRS. OF COURSE, SANDY CHANGED ALL THAT
BUT IT WAS NEVER HER EVEN THE EVENING TO LEASE IT THAT CAREER AT THAT TIME AND EVEN WHEN
SHE WAS LEASING IT IT WAS RARELY FOR A LONG PERIOD OF TIME. IT WAS FOR INTERSTITIAL
PERIODS WHEN SHE KNEW SHE WAS NOT FWOEG TO BE THERE. GOING. I SAID EARLIER
THAT MY EXPERIENCE HAS GIVEN ME WHAT I THINK IS EXPECTATIONS OF WHAT SHOULD HAPPEN.
I MEAN TO SAY THAT THE SYSTEM HERE WORKS THE ATTORNEY DISCIPLINARY SYSTEM IN NEW JERSEY
REALLY WORKS. ATTORNEYS SHUN FWRAFL, AS I MENTIONED BEFORE THAT IT IS THE
SUPREME COURT AND NOT THE ATTORNEY GENERAL THAT HEARSAY THESE MATTERS. I THINK IT IS
ONLY APPROPRIATE AN MOST STATES DOEPT FEEL THAT WAY BUT I THINK IT IS ONLY APPROPRIATE
THAT ATTORNEYS ARE IN CHARGE OF ATTORNEY DISCIPLINE, BUT THE PLAYING FIELD IS NOT A
LEVEL ONE. AND IT'S NOT SUPPOSED TO BE BECAUSE THE ATTORNEY DISCIPLINARY PROCESS IS NOT
AN ADJUDICATORY PROCESS. IT'S AN INVESTIGATORY PROCESS AND IT IS THE DRB'S INVESTIGATION
WHICH ULTIMATELY IS THIS COURT'S INVESTIGATION. AND SO IT'S OKAY THAT THE DRB OR THAT
THE OFFICE OF ATTORNEY ETHICS HAS THE RIGHT TO DISCOVERY AND THAT THE RESPONDENT DOESN'T.
IT'S OKAY THAT THE OFFICE OF ATTORNEY ETHICS CAN SUBPOENA RECORDS AND SWEAR
THE SUBPOENAED PERSON TO SECRECY AND NOT ADVISE THE RESPONDENT THAT THE SUBPOENA IS EVEN
BEING SERVED. THAT WOULDN'T CUT IT IN LITIGATION, BUT IT'S FINE IN AN INVESTIGATION
BECAUSE THE INVESTIGATION DOES NOT RESULT IN AN ADJUDICATION. THE INVESTIGATION
AND EVEN THE HEARING DOESN'T RESULT IN DISCIPLINE. THE HEARING RESULTS IN FINDINGS
AND RECOMMENDATIONS TO THE DRB, WHICH, IN TURN, MAKES ITS RECOMMENDS TO YOU. AND
SO WHILE THE SYSTEM OPERATES ON AN UNLEVEL PLAYING FIELD, THE RESULT IS USHLGLY JUST AND
FAIR ABDOMEN AND THAT'S HOW I CAN OPERATE IN THIS SYSTEM FOR AS LONG AS I HAVE BECAUSE
THE OUTCOME, EVEN IF IT IS NOT PREDICTABLE TO ME IS FAIR AND I UNDERSTAND IT. AND
BECAUSE OF MY EXPERIENCE, I UNDERSTAND I UNDERSTAND IT. I DIDN'T
UNDERSTAND THIS DISBARMENT AND I STILL DON'T AND I THINK IT'S UNFAIR AND THIS IS THE LAST
STOP. AND I UNDERSTAND MS. KIM'S POSITION NOW THAT THE DRB IS NOW SAYING THAT ITS OKAY
TO DISBAR AT THIS POINT. I DON'T THINK IT WOULD BE FAIR TO SUSPEND HER ON THIS RECORD.
I THINK THE APPROPRIATE QUANTUM OF DISCIPLINE FOR RETURNING WHAT SHE DID BECAUSE OF WHO
SHE IS IS SENSE IS YOUR. AND THE WHO SHE IS IS IMPORTANT BECAUSE IF IT'S JUST WHAT YOU
DID THEN THIS WOULD BE PENAL, THE PUNISHMENT HAS TO FIT THE CRIME, BUT HERE, AS I MENTIONED
EARLIER, THE PAN NO PLEA OF DISCIPLINE IS AVAILABLE AT EVERY LEVEL SO YOU HAVE TO LOOK
AT WHO IS DOING IT AN IF SHE WAS NAIVE AND IF SHE HAD BAD HABITS AND IF SHE WAS NOT PAYING
ATTENTION AN NOT TAKING CARE OF HER OWN SHOP AS WELL AS SHE SHOULD HAVE, WELL NONE OF
THAT IS GOOD, BUT NONE OF THAT SHOULD RESULT IN SUSPENSION. CLOP PAN NO PLEA CLOP.
SO I URGE YOU IN REVIEWING THIS, I HOPE THAT THIS COURT HAS A DIFFERENT
UNDERSTANDING THAN YOU MAY HAVE HAD BEFORE OF WHAT REALLY WENT TOWN AND OF WHO SHE REALLY
IS. SHE HAS NEVER BEEN IN TROUBLE. SHE HAS BEEN VERY, VERY CONSCIENTIOUS
OF HER CLIENT'S NEEDS AN HER CLIENT'S PROBLEMS. SHE MAY HAVE DONE OH SHE DID DO THE
VIOLATIONS THAT WE CALL THE FORTUNE NAT TOE VIOLATIONS, BUT SHE DIDN'T DO IT WITH A HARD
NESS OF HEART. SHE DIDN'T DO IT WITH AN INTENT TO DEFRAUD. SHE DIDN'T DO IT TO MAKE ANY
MONEY FOR HERSELF. SHE DID IT BECAUSE SHE HAD BAD HABITS. SHE LEARNED BAD HABITS. SHE
PERP PET U AIDED THOSE BAD HABITS. IN THE MEMO THAT IS TO SAY WHEN FORTUNATE TOE CAME
DOWN SHE DIDN'T GET THAT MEMO. JUSTICE PATTERSON: IS THAT MITIGATING.
IS NOT KNOWING, NOT READING, NOT UNDERSTANDING THAT SOMETHING SO DREBTLY RELATED TO ONE'S
PRACTICE NOT -- BEING UNAWARE OF THAT, SHOULD BE TREATED MORE TASH DASH YOUR CLIENT BE
TREATED MORE LENIENTLY THAN SOMEBODY WHO WENT TO A SEMINAR AND SOMEBODY SAID THERE IS
THIS NEW CASE IN RAY FORTH YOU BETTER BE AWARE OF THAT. MARC D. GARFINKLE:
I WAS JUST OFFERING THAT TO EXPLAIN HOW IT COULD HAPPEN TO SOMEBODY WHO WAS A REAL ESTATE
EXPERT, HOI COULD YOU BE A REAL ESTATE AN EVENINGS EXPERT AND NOT KNOW THIS.
JUSTICE PATTERSON: I SUS SPENT IT WAS BIG NEWS AT THE TIME. BAR FWAR TO THIS DAY, MS.
GENDEL IS ADVISING OTHER ATTORNEYS WHEN SHE SEES THEM AT CLOSINGS AN SHE SEES THEM ROUNDING
UP SHE TELLS THEM HEY YOU CAN'T DO IT SO THE PRACTICE CONTINUES SO HOW MUCH IS COMMON
KNOWLEDGE. I DON'T KNOW, I DIDN'T DO REAL ESTATE SO I WASN'T AWARE OF THIS COURT'S DECISION
THERE BUT I WOULD EXPECT THAT MOST REAL ESTATE LAWYERS WERE AWARE OF IT AND SINCE THE
PRACTICE WAS WIDESPREAD I WOULD HAVE THOUGHT IT WOULD HAVE REVERB BRAT AROUND THAT COMMUNITY
QUITE LOUDLY, APPARENTLY IT DIDN'T AND IT DIDN'T REACH HER TORE AN THAT'S NOT AN ADMIT FWATING
FABT TORE AT ALL AND I THANK YOU FOR ALLOWING ME TO MAKE THAT DISTINCTION, JUSTICE. IT IS
REALLY MY WAY OF EXPLANATION HOW SUCH AN EXPERT COULD NOT KNOW THAT BECAUSE I KNOW THAT
I WOULD ALWAYS FOLLOW THIS COURT'S TASH DASH I DON'T FOLLOW THIS COURT'S DECISIONS IN
ALL FIELDS BUT THIS THOSE THAT AFFECT MY PRACTICE OR MY CLEENTS I TRY TO KEEP IN TOUCH
SFLFRNLTS WE WON'T HOLD THAT AGAINST YOU. MARC D. GARFINKLE: THANK YOU,
JUSTICE. THE COURT: IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD.
MARC D. GARFINKLE: NO, I WOULD NOT AND I TO WANT TO THANK THIS COURT FOR ITS HEARING
THIS MATTER AT LENGTH, FOR UNDERSTANDING, I HOPE THE BACKGROUND THAT I THINK HELPS EXPLAIN
WHY I DON'T UNDERSTAND WHAT HAPPENED IN THIS MATTER. THE COURT: MR.
GARFINKLE, HERE IS WHAT I WOULD LIKE TO DO, I WANT TO ASK MS. KIM IF SHE COULD CLARIFY
THE RECORD AND THEN GIVE YOU AN OPPORTUNITY TO RESPOND. MARC D. GARFINKLE:
THANK YOU. HOE CHIN KIM: GUY S P I NA. THE BOARDS DECISION RECITES THE
BULK OF HIS TESTIMONY STARTING AT THE BOTTOM OF PAGE 43. MR. SPINA TESTIFIED THAT HE
WOULD NOT HAVE RENTED MS. GENDEL'S BEACH HOUSE BECAUSE -- WITHOUT HER AUTHORITY BECAUSE
IT WOULD HAVE BEEN UN-ETHICAL, ILLEGAL AND PUT HIS REAL ESTATE LICENSE AT RISK. I BELIEVE
THE BOARD AND THE BOARDS DECISION, MS. GENDEL WHEN SHE WENT TO THE BEACH HOUSE AFTER SUPER
STORM SANDY, SHE SAW TOYS IN THE RESIDENCE AND IT APPEARS THERE HAD BEEN SOMEONE LIVING
THERE. IN -- CHIEF JUSTICE RABNER: IS THERE A LEASE IN THE
RECORD? HOE CHIN KIM: THERE IS. I'M SORRY, YOUR HONOR. YES. THERE IS
A LEASE IN THE RECORD. I BELIEVE IT CAME IN AS P-15. I HAD MR. SPINA GO OVER IT. HE
SIGNED IT ON BEHALF OF MS. GENDEL AS TO THE TWO TENANTS. JUSTICE PATTERSON:
DID SHE RECEIVE ANY RENTAL PAYMENTS? HOE CHIN KIM: THERE WERE NO RENTAL
PAYMENTS JUSTICE PATTERSON BECAUSE -- CHIEF JUSTICE RABNER: SECURITY DEPOSIT?
HOE CHIN KIM: THERE WAS A CASH DEPOSIT. JUSTICE PIERRE-LOUIS:
WHO DID THEY GO TO? HOE CHIN KIM: THE CASH DEPOSIT WAS TAKEN IN BY THE
REAL ESTATE AGENT. HE ACTUALLY HAD PHOTOCOPIED IT. THAT IS IN THE TRIAL RECORD. AND
THEN I BELIEVE IT WAS 1200. POLE RENT OF 800. BUT THEN SUPER STORM SANDY HIT IN OCTOBER.
SO THERE WAS NO FIRST MONTH'S RENT OTHER THAN THE INITIAL DEPOSIT. AND THEN THAT INITIAL
DEPOSIT WAS RETURNED BY CHECK TO THE TWO TENANTS. CHIEF JUSTICE RABNER:
DID MS. GENDEL GET THE 1200 AS A SECURITY DEPOSIT TO HOLD? HOE CHIN KIM:
NO. THE REAL ESTATE AGENT KEPT IT AND THEN THAT DEPOSIT WAS RETURNED TO THE TENANTS.
JUSTICE PIERRE-LOUIS: WAS THAT THE AGENDAS FEE? HOE CHIN KIM:
I BELIEVE HE TOOK IN THE CASH AND PUT IT IN ESCROW PENDING THE TERMS OF THE LEASE.
JUSTICE PATTERSON: DID THEY EVER LIVE THERE? HOE CHIN KIM: THEY
DID, YES. JUSTICE WAINER-APTER: FOR TWO WEEKS? HOE CHIN KIM:
AT LEAST UNTIL SUPER STORM SANDY -- EXCUSE ME. I BELIEVE MR. SPINA TESTIFIED THAT WHEN
THERE WAS NOTIFICATION OF SANDY INCOMING, HE WENT TO THE RESIDENCE AND TOLD THEM TO LEAVE
BECAUSE IT WAS DANGEROUS FOR THEM TO STAY. SO IT DOES APPEAR AS THOUGH THEY WERE IN THE
RESIDENCE FOR AT LEAST THE END OF SEPTEMBER TO VERY EARLY OCTOBER. JUSTICE
MICHAEL NORIEGA: WHEN YOU SAY ESCROW, WAS THERE EVIDENCE IT WAS PUT INTO AN ACTUAL SAVINGS
ACCOUNT? HOE CHIN KIM: IT WAS PLACED INTO THE REAL ESTATE BROKER's
COMPANIES ACCOUNT BECAUSE THAT'S FROM WHEN THE CHECKS WERE ISSUED BACK TO TENANTS AND THOSE
CHECKS ARE IN THE RECORD. JUSTICE MICHAEL NORIEGA: BUT WAS IT MARKED IN
AN ACCOUNT FOR MS. GENDEL'S BENEFIT IN TERMS OF IT BEING HER PROPERTY AND THE INTEREST
WOULD HAVE BEEN HERS TO DEAL WITH LATER? HOE CHIN KIM: I DO NOT -- I AM
NOT -- I AM UN-AWARE IF THE REAL ESTATE COMPANY HAD PLACED THOSE MONEYS IN AN INTEREST
-BEARING ACCOUNT. I BELIEVE THAT THOSE MONEYS WOULD HAVE BEEN THE REAL ESTATE BROKER's
FEES BUT FOR THE FACT OF SANDY. AND MS. GENDEL WOULD HAVE RECEIVED THE $800 MONTHLY RENT
THEREAFTER BUT THAT NEVER OCCURRED. JUSTICE PIERRE-LOUIS: FOR THE OTHER
LEASES THAT OCCURRED FOR THE SHORT TERM SUMMER RENTALS, DID MS. GENDEL SIGN THOSE? ARE
THOSE LEASES IN THE RECORD? HOE CHIN KIM: I BELIEVE THOSE LEASES ARE IN
THE RECORD. WE ASKED FOR ALL THE LEASES THAT MR. SPINA HAD PROCURED FOR MS. GENDEL DOLLARS
PROPERTY ABD THOSE ARE IN THE RECORD. JUSTICE PIERRE-LOUIS: DID SHE SIGN
THOSE OR WERE THOSE ALSO ONLY SIGNED BY THE BROKER MR. SPINA? HOE CHIN KIM:
I DO NOT RECALL AT THIS TIME. I APOLOGIZE, JUSTICE PIERRE-LOUIS. CHIEF
JUSTICE RABNER: DID THE PARTICULAR LEASE HERE OR OTHER LEASES, DID MS. GENDEL GET A SIGNED
COPY OF THE LEASES? HOE CHIN KIM: YES. PER MR. SPINA, MS. GENDEL AUTHORIZED
THE LEASES AND HE WOULD HAVE E-MAILED THEM TO HER OR PROVIDED THEM TO HER. CHIEF
JUSTICE RABNER: SO THE REFERENCE ON PAGE 50, IS THAT A REFERENCE TO A COPY OF A SIGNED
LEASE? HOE CHIN KIM: IT WAS SIGNED IN TERMS OF MR. SPINA AND THE TWO TENANTS,
BUT MS. GENDEL'S SIGNATURE IS NOT ON THAT LEASE. CHIEF JUSTICE RABNER: YES.
BUT MY QUESTION IS, DID SHE GET A COPY OF THE LEASE THAT HAD BEEN SIGNED BY TWO PARTIES?
HOE CHIN KIM: I DO NOT BELIEVE THAT FACT WAS MADE CLEAR IN THE RECORD.
THERE IS -- THERE WAS AN E-MAIL FROM MR. SPINA TO MS. GENDEL WITH THE BLANK LEASE. AND
THEN MR. SPINA THEREAFTER FOLLOWED UP AND MS. GENDEL INDICATED SHE HAD NOT RELIEVED
RECEIVED THE LEASE. SO IT WAS SENT AGAIN TO MS. GENDEL. JUSTICE PIERRE-LOUIS:
THE BLANK ONE THOUGH? HOE CHIN KIM: I BELIEVE IT WAS THE BLANK ONE AT THAT TIME.
MR. SPINA TESTIFIED AT SOME POINT SHE WOULD HAVE SPOKEN TO MS. GENDEL TO OBTAIN HER PERMISSION
TO ACTUALLY RENT OUT HER BEACH HOUSE. IF THE COURT WOULD INDULGE ME, REGARD
ING THE REAL ESTATE PRACTICE AND THE FORTUNATO OVERCHARGES, FORTUNATO WENT SPECIFICALLY
TO OVERCHARGING REAL ESTATE RECORDINGS. BECAUSE AT A CLOSING AND THE ATTORNEYS NEVER
ARE AWARE OF HOW MANY PAGES ARE REQUIRED SUCH THAT THEY OVERCHARGE. THAT IS NOT THE
VIOLATION. THE VIOLATION OCCURS WHEN THE CLERK's OFFICE, THE REGISTER OF DEEDS ACTUALLY
ISSUES THE ACTUAL AMOUNT OF THE RECORDING FEE SUCH THAT IF THERE WAS AN OVERCHARGE THE
BALANCE SHOULD BE RETURNED TO EITHER THEIR BUYER OR THEIR SELLER. THE VIOLATION
OCCURS WHEN THE ATTORNEY TAKES THOSE FUNDS WITHOUT APPRISING THE BUYER AND SELLER OF
THE ACTIONS. AND THAT IS WHAT FORTUNATO SPEAKS TO. CONDUCTING A REVIEW AND THEN RETURNING
THOSE MONEYS IF NOT APPROVED BY THE BUYER AND SELLER. MS. GENDEL'S REAL ESTATE
PRACTICE WENT CAN BEYOND THAT. THE SURVEYOR, IF HE COMMITTED WORK FOR MS. GENDEL, HE
SUBMITTED AN INVOICE. THAT IS ALSO IN THE RECORD. ON THE FORM HUD-1. MS. GENDEL
INFLATED THE FEE, THE BILL THAT HE CHARGED. THE SAME ALSO OCCURRED -- JUSTICE
PATTERSON: WE'RE HEARING FROM COUNSEL FOR MS. GENDEL THAT THIS PARTICULAR SURVEYOR WAS
NOT INTO THE METES AND BOUNDS ASPECT OF VAGUE SO SHE WOULD GO OUT HERSELF AND CHARGE FOR
IT. HOE CHIN KIM: THE SURVEYOR TESTIFIED, HE WAS AN OLDER GENTLEMAN WHO
HAD BEEN IN THE BUSINESS FOR YEARS. HE KNEW EXACTLY HOW TO COMPLETE A METES AND BOUNDS.
SHE NEVER ASKED HIM TO DO IT. IF SHE HAD HE WOULD HAVE DONE IT FOR HER AND CHARGED A
NOMINAL FEE OF 30 TO $50. BUT SHE DID NOT THAT OF HIM. HE INFLATED HIS BILLS AND THEN
SHE CREATED NON-EXISTENCE MAIL DELIVERY OR WIRE BILLS ON THE FORM HUD-1. FRANKLY, THE
FORM HUD-1, CHU DISCONTINUED IN 2015, BUT THE FORM HUD-1 HAD A CERTIFICATION SIGNED BY
EVERY SETTLEMENT AGENT, TYPICALLY ATTORNEYS IN THE STATE OF NEW JERSEY, THAT THE FORM
HUD-1 WAS ACCURATE AS TO ALL THE DEPOSITS AND ALL THE DISBURSEMENTS. JUSTICE
WAINER-APTER: CAN YOU GO BACK ONE MORE TIME TO WHAT SHE CREATED THAT WAS NON-EXISTENT?
HOE CHIN KIM: YES. ON THE FORM HUD, TYPICALLY ON THE SECOND PAGE ON THE
BOTTOM OF THAT SECOND PAGE, THERE ARE MISCELLANEOUS FEES. THERE ARE NO ENTRIES.
SO THERE WOULD BE A FEDEX DELIVERY FEE OR AN OVERNIGHT MAIL DELIVERY FEE THAT ACTUALLY
WAS NOT INCURRED BY EITHER SIDE. AND AGAIN SOMEWHAT NOMINAL, 15, $30. SO THE OAE
CHARGED A FALSE CHARGE OF CREATION OF A NON-EXISTENT BILL. AGAIN, THE
CERTIFICATIONS ON A FORM HUD-1 GIVES PLENTY OF NOTICE TO A SETTLEMENT AGENT, EVEN A TITLE
COMPANY KNOWS. SO AN ATTORNEY-AT-LAW WHO'S CHARGED WITH TAKING IN MONEYS OF A BUYER AND
A SELLER ON A REAL ESTATE TRANSACTION WAS WELL AWARE BEFORE 2016, IN RE: FORTUNATO WAS
ANNOUNCED BY THIS COURT, OF HER OBLIGATIONS AND DUTIES IN ANY REAL ESTATE TRANSACTION.
CHIEF JUSTICE RABNER: THANK YOU, MS. KIM. MR. GARFINKLE, WOULD YOU
LIKE TO ADDRESS? MARC D. GARFINKLE: THANK YOU. IT'S TRUE
THAT THE REAL ESTATE BROKER DID TESTIFY THAT IT WOULD HAVE BEEN UN-ETHICAL AND CRIMINAL
IF HE HAD DONE THAT AND THEN WE'RE CLAIMING THAT HE'S CORRECT AND THAT'S JUST WHAT HE
DID. THAT HE SENT HER AN UN-SIGNED LEASE AND SHE SAID I'M NOT INTERESTED. SHE MIGHT HAVE BEEN
INTERESTED IN THE BEGINNING AND THEN SHE MADE UP HER MIND TO DO THE WORK. AND SHE WAS
NO LONGER INTERESTED IN RENTING IT. AND SO SHE IGNORED THE SECOND LEASE WHEN HE SENT
IT TO HER AND SHE NEVER SIGNED ANY LEASE. NOR DID SHE EVER AUTHORIZE HIM, NOR DID HE EVER
SEND HER A COPY OF THE LEASE. AND IN PRIOR YEARS SHE SIGNED THE LEASE. WHENEVER SHE
DID RENT IT THROUGH THIS PERSON, SHE SIGNED THE LEASE. AND THIS WOULD HAVE BEEN
THE FIRST TIME THAT IT WAS RENTED WITHOUT HER SIGNATURE. AS FAR AS THE
FORTUNATO VIOLATIONS, MS. GENDEL ADMITS TO ALL OF THE UPPER ROUNDING OFF, THE CLASSICAL,
IF WE CAN CALL IT THAT, FORTUNATO VIOLATIONS. BUT DENIES THAT SHE EVER KNOWINGLY CHARGED
FOR A SERVICE SUCH AS A MAILING SOMETHING OUT THAT WAS NOT DONE. AND IF THERE WERE SUCH
CHARGES, IT WOULD HAVE BEEN IN SO FEW CASES AGAINST A BODY OF TRANSACTIONS THAT WAS SO
NUMEROUS THAT IT WAS CLEARLY MORE LIKELY TO HAVE BEEN AN OVERSIGHT IF IN FACT IT HAPPENED
THAN HER REGULAR PRACTICE. SHE HAD DONE MANY MANY HUNDREDS OF TRANSACTIONS AND IF SOME
OF THEM INDICATED -- IF SOME OF THEM SHOWED THAT SHE CHARGED FOR A MAILING THAT WASN'T
DONE, IT WAS CERTAINLY NOT WITH HER INTENTION. IT WAS CERTAINLY NOT FOR HER KNOWING BENEFIT.
IT WAS NOT A PRACTICE THAT SHE HAD. SHE ADMITTED TO THE OTHER PRACTICES WHICH WERE WRONGFUL.
SHE ADMITTED TO SIGNING THE SANDY DOCUMENTS THAT CONTAINED WRONGFUL STATEMENTS. AND
SHE'S ADAMANT ABOUT NOT EVER CHARGING FEES FOR NON-EXISTENT SERVICES. AS
FAR AS THE TESTIMONY OF THE SURVEYOR, I ASKED HIM POINTBLANK, DO YOU DO -- MS. GENDEL
INSISTED THAT HE WAS SLOW ABOUT DOING THIS AND REALLY HATED DOING THESE METES AND BOUNDS
AND I ASKED HIM, DO YOU DO METES AND BOUNDS DESCRIPTIONS AND HE SAID YES. BUT THEN I
ASKED HIM IF HE WOULD REPRESENT AND IF HE WOULD WORK WITH MS. GENDEL IN THE FUTURE AND
HE WAS UNEQUIVOCAL IN SAYING THAT HE WOULD HAVE. SO NOT THAT THAT UN-DOES
THE WRONG THAT SHE DID, BUT IT INDICATES THE UNIVERSE IN WHICH SHE WAS OPERATING. AND
I CERTAINLY DON'T BELIEVE THAT THESE FACTS WOULD ELEVATE THE VIOLATIONS THAT SHE COMMIT
TO DO THE LEVEL THAT WOULD DEMAND THE SORT OF DISCIPLINE THAT THE OFFICE OF ATTORNEY ETHICS
IS NOW ADVOCATING. AND WHICH THE SDLIS ANYMORE REVIEW BOARD HAS RECOMMENDED.
AGAIN, I BELIEVE THERE ARE MITIGATING FACTORS WHICH FAR OUTWEIGH THE AGGRAVATING FACTORS.
I BELIEVE THAT THE HISTORY OF THIS PERSON, OF MS. GENDEL AS AN ATTORNEY AND AS A COMMUNITY
MEMBER ARE SUCH FACTORS AS WOULD MAKE ONE THINK, AS I DID WHEN I FIRST HEARD OF THIS DECISION
OF THE DRB, THAT THAT WOULD BE EXTREME, UNWARRANTED AND, ABOVE ALL, DOES NOT SERVE
THE PURPOSE OF ATTORNEY DISCIPLINE. ATTORNEY DISCIPLINE IS INTENDED TO PROTECT THE PUBLIC
AND TO PROTECT THE PROFESSION BY PROTECTING THE PUBLIC. MS. GENDEL'S VIOLATIONS, THE
BOOKKEEPING VIOLATIONS AND THE REAL ESTATE VIOLATIONS WILL NEVER RECUR. THE SANDY
VIOLATIONS DIDN'T PUT ANYBODY AT RISK EXCEPT HERSELF. SHE WAS NEVER A DANGER TO A CLIENT.
SHE WAS NOT IN THE PRACTICE -- IT WAS NOT IN THE COURSE OF HER PRACTICE. AND MANY REASONS
TO UNDERSTAND THAT SHE WAS NOT OF THE ILK THAT THIS COURT USUALLY IMPOSES SUCH STRINGENT
DISCIPLINE UPON. SHE'S OF A DIFFERENT ILK. SHE'S OF A DIFFERENT CUT. SHE'S 95 EAVE
BUT SHE IS NOT VILLAINOUS. SHE WAS NOT PAYING ATTENTION TO HER HOUSEKEEPING. BUT NOT
GUILTY OF FRAUD IN THE CONTEXT OF HER DISCIPLINE OR IN THE CONTEXT OF A CRIMINAL CHARGE.
AGAIN, I THANK YOU FOR THE OPPORTUNITY TO BE HEARD. CHIEF
JUSTICE RABNER: THANK YOU, MR. GARFINKLE. MS. GENDEL, IN ANY CASE WHERE THERE'S A
RECOMMENDATION OF DISBARMENT, RESPONDENTS LIKE YOURSELF HAVE THE OPPORTUNITY, ONLY IF YOU'D
LIKE TO SPEAK TO THE COURT. I WANT TO EXTEND THAT TO YOU, BUT YOU NEED NOT DO SO.
MS. GENDEL: I WASN'T PREPARED TO DO SO. MS. GENDEL: YOUR HONORS, I WANT TO
START OUT SO THAT YOU UNDERSTAND -- I'M SORRY. I DON'T DO WELL IN LARGE CROWDED AREAS.
THAT'S WHY I DON'T SPEAK IN FRONT OF A COURT. BUT I DO WANT YOU TO UNDERSTAND THAT AS
FAR AS THE REAL ESTATE GOES, THE TIMING WOULD ASSIST YOU IN ONE OF YOUR QUESTIONS THAT
YOU HAD ASKED. I WAS LIVING IN THE HOUSE FROM 2009, OCTOBER OF 2009, UNTIL
DURING THE SUMMER OF 2012. PARTS OF THE HOUSE STARTED COLLAPSING. THE FRONT PORCH STARTED
COLLAPSING AND EVERYTHING. AND IT WAS VERY HARD BECAUSE DURING THE WINTERTIME THERE'S
NO ACCESS BECAUSE IT'S ON THE BEACH AND THERE'S NO MAIN ROAD TO GET THERE. SO I HAD A
FRIEND WHO BOUGHT A HOUSE IN JULY OF 2012. I WAS LIVING THERE BEFOREHAND. WHO BOUGHT
A HOUSE IN JULY AND HE SAID TO ME THAT I COULD TEMPORARILY -- HE'S BEEN A FRIEND SINCE
WE WERE TEENAGERS. HE SAID I COULD TEMPORARILY STAY AT HIS HOUSE UNTIL IT GOT TO BE SPRING
AND I COULD GET IT FIXED. AND I SAID OKAY. SO THAT IS WHAT I DID. AND STOB
HONEST, IT WAS NICE TO HAVE COMPANY, BECAUSE, YOU KNOW, IT'S A LITTLE LONELY DOWN AT THE
BEACH IN THE MIDDLE OF THE WINTER. I CERTAINLY WASN'T EXPECTING THAT THE
HOUSE WOULD BE DESTROYED DURING SANDY. BUT I ALSO WASN'T EXPECTING THAT THERE WOULD BE A
TENANT THERE. IT IS TRUE THAT THE REALTOR OVER YEARS CONSTANTLY CALLED ME ALL THE TIME
TO WANT TO SELL THINGS BECAUSE THAT'S WHAT HE DID. AND I DON'T EVEN OPEN UP HIS E-MAILS
WHEN I GOT THEM A LOT OF THE TIMES BECAUSE IT'S ALWAYS RANDOM THINGS THAT ARE THERE.
AND IF I'M NOT INTERESTED IN RENTING OR ANYTHING, I JUST LET IT GO. SO I DID NOT
SIGN A LEASE. DID NOT AGREE TO A LEASE. AND DID NOT KNOW THAT ANYBODY WAS IN THAT PROPERTY
UNTIL I CAME BACK AFTER SANDY. AND THAT WAS -- YOU WEREN'T ALLOWED BACK FOR THREE OR
FOUR WEEKS AFTER. AND THE HOUSE HAD COLLAPSED. AND THEN I SAW POSSESSIONS OF PEOPLE
THAT WEREN'T MINE. ALL RIGHT. SO THAT WAS WHAT HAPPENED WITH ME. NOW,
I WANT TO SAY THAT IT'S -- CHIEF JUSTICE RABNER: CAN I ASK YOU A QUESTION?
MS. GENDEL: OF COURSE. CHIEF JUSTICE RABNER: WHEN DID YOU
FIRST LEARN THAT THE SHORE HOME HAD BEEN LEASED? MS. GENDEL: WEEKS AFTER
SANDY. WEEKS AFTER SANDY. CHIEF JUSTICE RABNER: WAS THAT BEFORE YOU MADE
MULTIPLE APPLICATIONS TO -- MS. GENDEL: NO, THAT WAS AFTER I MADE THE
APPLICATION. CHIEF JUSTICE RABNER: IN EACH OF THE APPLICATIONS IT WAS AFTER?
MS. GENDEL: YOU KNOW WHAT, I DON'T REMEMBER. I DON'T REMEMBER -- I'LL TALK
ABOUT THE ONE FOR THE LOAN. THE FIRST ONE WAS DEFINITELY BEFORE I KNEW THAT THEY EXISTED.
ALL RIGHT. WHICH WAS A SMALL AMOUNT OF MONEY. THE APPLICATION FOR -- AND I MADE AN
APPLICATION FOR A LOAN. OKAY. TO RE-BUILD THE PROPERTY. THAT APPLICATION WAS MADE AND
I WANT TO POINT OUT, AS A REAL ESTATE ATTORNEY, WE HAVE OUR ARROGANCE IN OUR OWN FIELD.
AND EVERY DAY OF EVERY MONTH OF EVERY YEAR I HAVE HEARD IT IS YOUR PERSONAL RESIDENCE
IF YOU LIVE THERE THREE OUT OF THE LAST FIVE YEARS OF YOUR OWNERSHIP. SO TWO THINGS.
A, I SIGNED THE PAPERS AND I DIDN'T READ THEM VERY CAREFULLY, BECAUSE THERE WAS SO MUCH
TURMOIL GOING ON THAT WAS DOWN THERE. THE SECOND THING THAT WAS HAPPENING IS, I TRULY
BELIEVED I WOULD NEVER DO ANYTHING THAT WAS WRONG AND THAT I KNEW THAT IT WAS MY PERSONAL
RESIDENCE AND THAT JUST BECAUSE I WAS OUT OF THE THERE TEMPORARILY WHILE IT WAS UN-SAFE
WAS NOT A REASON THAT IT WASN'T MY PERSONAL RESIDENCE. BECAUSE I HAD LIVED THERE SINCE
2009. CHIEF JUSTICE RABNER: IN JUNE OF -- YOU SAID YOU KNEW THAT PEOPLE
WERE LIVING THERE A COUPLE OF WEEKS AFTER. MS. GENDEL: YES. CHIEF
JUSTICE RABNER: AND THAT'S AROUND OCTOBER, NOVEMBER OF 2012. MS. GENDEL:
THAT'S DEFINITELY SOME TIME IN NOVEMBER OR DECEMBER. CHIEF JUSTICE RABNER:
NOVEMBER, DECEMBER, 2012. MS. GENDEL: YES. CHIEF JUSTICE
RABNER: SEVEN MONTHS LATER, YOU SOUGHT FUNDS FROM THE RE-CONSTRUCTION REHABILITATION
PROGRAM. AND EVEN THOUGH PEOPLE WERE -- YOU KNEW HAD BEEN RENTING YOUR PROPERTY, YOU WERE
CLAIMING THIS IS YOUR PRIMARY RESIDENCE. MS. GENDEL: BUT I WASN'T RENTING
MY -- I'M CONFUSED. BECAUSE I WASN'T RENTING MY PROPERTY. I LEFT MY PROPERTY TEMPORARILY
AND THEN SANDY HAPPENED. AND THEN THE LOAN WAS TO RE-CONSTRUCT YOUR HOME AND I WAS VERY
EXCITED THAT I WAS GOING TO BE ABLE TO RE-BUILD WHAT HAD BEEN MY HOME BEFORE SANDY AND
FOR -- BUT FOR A MONTH BEFOREHAND. CHIEF JUSTICE RABNER: EXPLAIN WHY YOU
REPRESENTED IT WAS YOUR PRIMARY RESIDENCE KNOWING THAT PEOPLE HAD BEEN RENTING IT.
MS. GENDEL: BECAUSE THEY HADN'T BEEN RENTING IT. THEY WERE -- BECAUSE I HADN'T RENTED
IT TO THEM. THEY WERE PEOPLE THAT HAD ENTERED MY HOUSE WITHOUT MY PERMISSION.
CHIEF JUSTICE RABNER: THAT'S WHY I ASKED WHEN YOU FIRST FOUND OUT THEY HAD BEEN RENTING
IT. YOU'RE SAYING THIS WAS A FRAUD ON YOU? MS. GENDEL: I AM SAYING THAT
I NEVER GAVE THEM PERMISSION TO BE THERE. THEY CAME THERE. THEY LEFT THERE. THEY WERE
NO LONGER THERE. I DIDN'T EVEN CONTEMPLATE IT BECAUSE THEY WERE JUST THESE PEOPLE THAT
SHOWED UP AND THEN WERE GONE AND THAT WAS IT. JUSTICE WAINER-APTER: DO YOU HAVE
AN UNDERSTANDING OF HOW LONG THEY WERE LIVING THERE FOR? ONE WEEK, TWO WEEKS?
MS. GENDEL: I KNOW FROM ALL THE TESTIMONY THAT'S COME SINCE THEN THAT THEY DID NOT MOVE
IN UNTIL OCTOBER 12TH OR LATER. AND SANDY OCCURRED ON OCTOBER 27TH. SO -- AND THEY HAD
TO VACATE BEFORE SANDY. SO THEY COULD NOT HAVE BEEN THERE FOR MORE THAN TEN DAYS MAYBE
I THINK. JUSTICE SOLOMON: AS FAR AS YOU KNEW PERSONALLY, EVEN SEVEN MONTHS
LATER, NOBODY EVER RENTED THAT PROPERTY. AND CERTAINLY YOU DIDN'T RENT IT.
MS. GENDEL: NO, NO. SO WHEN THEY CAME TO ME -- I MEAN IT WAS LIKE -- THEY WERE IN AN
OFFICE AND THEY CAME TO ME AND THEY SAID, YOU NEED -- YOU SHOULD COME OVER AND YOU JUST
PRESS THIS BUTTONS ON THE COMPUTER AND YOU CAN APPLY FOR A LOAN. AND IN MY VIEW, SINCE
THE DEFINITION OF AHRENS WAS WHERE YOU HAD LIVED FOR TWO OF THE LAST FIVE YEARS AND I HAD
LIVED THERE WITH THE EXCEPTION OF SANDY HAPPENING AND MY PORCH COLLAPSING, THAT IT WAS
STILL -- I MEAN, YOU'RE ALLOWED TO MOVE OUT OF THE STATE OF NEW JERSEY AND LIVE SOMEPLACE
ELSE UP TO TWO YEARS AND STILL DECLARE THE SALE OF THE HOME AS YOUR PERSONAL RESIDENCE
AND GET A DEDUCTION FROM THE STATE OF NEW JERSEY. AND THAT'S WHERE MY ARROGANCE CAME
IN BECAUSE I THOUGHT THAT THAT WAS THE SAME RULE THAT THAT LOAN WAS FOLLOWING. AND THEN
WHEN THE LOAN WAS FIRST GRANTED AND THEN DENIED AND THEY SAID WELL BECAUSE OF THESE
INCIDENTS, I SAID, WHAT CAN I GIVE YOU TO SHOW YOU THAT IT WAS MY PERSONAL RESIDENCE AND
THEY SAID, NO, WE'RE JUST GOING TO -- AND I DECIDED NOT TO PURSUE IT. BECAUSE I -- IT
WAS -- IT'S NICE TO GET A LOW INTEREST LOAN, BUT IT WASN'T A NECESSITY TO GET A LOW INTEREST
LOAN. SO I DIDN'T PURSUE IT AFTER THAT. AND RETURNED THAT FIRST INITIAL COUPLE OF
THOUSAND. IT WAS NOT MUCH. JUSTICE SOLOMON: BUT YOU ENDED UP ENTERING INTO
A PLEA AGREEMENT? DIDN'T YOU? REGARDING THAT. MS. GENDEL: YEAH, I DID.
JUSTICE SOLOMON: PTI, IF I UNDERSTAND. MS. GENDEL: THAT I
DID NOT PLEAD GUILTY TO. IT WAS ONE OF THE KEY THINGS THAT I SAID TO THE ATTORNEY AT THE
TIME. I SAID TO HIM, I WILL NOT TAKE A PLEA IF I HAVE TO PLEA GUILTY. JUSTICE
SOLOMON: YOU AGREED TO ENTER INTO A DIVERSIONARY PROGRAM. MS. GENDEL: I'M
BEING HONEST. HE SAID, I CAN GET YOU A PLEA. HE SAID, IF YOU DON'T GO FOR IT, IT COULD
COST YOU HUNDREDS OF THOUSANDS OF DOLLARS AND, TO BE HONEST WITH YOU, I HAVE A SPECIAL
NEEDS CHILD AND I HAVE, YOU KNOW, I'M A SINGLE PARENT AND I -- THERE ARE MORE IMPORTANT
THINGS FOR ME TO FOCUS ON. AND I ASKED MY ATTORNEY IF I HAD TO REPORT IT TO THE ETHICS
COMMITTEE -- IF I HAD TO DO ANYTHING TO THE ETHICS COMMITTEE AND HE DID RESEARCH AND CAME
UP WITH A NON-COMMITTAL ANSWER THAT I WOULD HAVE TO DO IT. SO THAT WAS --
JUSTICE PATTERSON: THAT YOU WOULD HAVE TO DO IT? MS. GENDEL: HE DIDN'T
SAY I HAD TO REPORT THIS TO THE ETHICS COMMITTEE. I ASKED HIM TO RESEARCH IT. I SPENT
THOUSANDS OF DOLLARS HAVING HIM RESEARCH IT. AND THEN HE DID NOT COME BACK WITH, YES,
YOU SHOULD REPORT IT. AND -- JUSTICE PATTERSON: WHAT DID HE SAY? I DON'T
WANT TO ASK ABOUT YOUR LEGAL -- MS. GENDEL: HE SAID I CAN'T SAY ONE WAY OR
THE OTHER. THAT'S WHAT HE SAID. SO I FIGURED THAT SINCE THE -- SINCE I DID PRETRIAL
INTERVENTION AND THERE WAS NO GUILTY, I DIDN'T -- JUSTICE PATTERSON: BUT
YOU DIDN'T REPORT IT IS WHAT I'M ASKING. MS. GENDEL: NO, NO. AND AS FAR
AS THE TIMING ABOUT YOUR QUESTION ABOUT FORTUNATO AND NOT HEARING AND EVERYTHING, I WILL
SAY AGAIN, YOU KNOW, WE ALL HAVE OUR TIMES WHEN WE'RE NOT PAYING ATTENTION, BUT I STOPPED
-- I WAS SO RELIEVED WHEN THEY CHANGED THE RULES FOR THE TITLE COMPANIES DOING THE CLOSINGS
BECAUSE -- I WENT INTO REAL ESTATE BECAUSE I REALLY LIKE PEOPLE AND I LIKE A HAPPY ENDING
AND IT WAS REALLY NICE HAVING PEOPLE LIKE YOU AT THE END AND THERE WAS SATISFACTION OF
PEOPLE BECOMING YOUR FRIENDS AFTERWARDS. I DID NOT LIKE DOING ALL OF THE PAPERWORK THAT
-- AND THE NUMBERS THAT WERE INVOLVED THERE. SO WHEN THEY CHANGED THE REGULATIONS TO
WHERE TITLE COMPANIES COULD CLOSE IT, I HANDED IT OVER TO THE TITLE COMPANY. SO YOU'RE
ASKING ABOUT DID I KNOW ABOUT FORTUNATO THE DAY IT CAME OUT, NO, I DIDN'T. BUT I STOPPED
DOING IT IN 2016. JUSTICE PATTERSON: BUT FORTUNATO WAS NOT ABOUT TITLE
COMPANIES AND THE OBLIGATIONS. IT WAS SPECIFICALLY ABOUT LAWYERS NOT ROUNDING UP.
AM I CORRECT ABOUT THIS? MS. GENDEL: RIGHT. AND I DIDN'T HEAR THAT IN 2015.
BUT I AUTOMATICALLY STOPPED IN 2016 BECAUSE I WAS NO LONGER DOING THE CLOSINGS. SINCE
-- JUSTICE PATTERSON: DID YOU EVER HEAR ANYBODY, YOU'RE A REAL ESTATE
SPECIALIST, YOU HAVE 40 YEARS EXPERIENCE AND THIS IS AN ETHICS DECISION THAT APPLIES DIRECTLY
TO A PRACTICE THAT APPARENTLY YOU CONCEDE YOU WERE DOING, ROUNDING UP. ARE YOU SAYING
-- MS. GENDEL: I HAVE LITERALLY NO EXCUSES -- JUSTICE PATTERSON:
LET ME FINISH THE QUESTION. DID YOU EVER HEAR PRIOR TO THE ETHICS PROCEEDINGS LED TO
THIS DAY THAT FORTUNATO HAD BEEN DECIDED AND THAT WHAT YOU HAD BEEN DOING WAS NOT ETHICAL?
MS. GENDEL: I HAVE TO HAVE THE TIMING. I HAVE TO THINK ABOUT THE TIMING.
I DID NOT HEAR ABOUT FORTUNATO UNTIL I WENT TO A MEETING WITH THE ETHICS COMMITTEE.
I DID NOT. THAT'S -- THAT'S MY FAILURE. THAT'S MY FAILURE. CHIEF JUSTICE
RABNER: IS THERE ANYTHING ELSE YOU'D LIKE TO ADD? MS. GENDEL: I WOULD.
TO ME THIS IS A VERY HARD EXPERIENCE. BECAUSE I DIDN'T THINK OF MYSELF AS BEING A LAWYER.
I THINK I AM AN ATTORNEY. I'VE LIVED MY WHOLE LIFE -- WHEN YOU TALK ABOUT WHY IS MY OFFICE
ADDRESS, RIGHT, ON MY DRIVER'S LICENSE. BECAUSE I SPENT SO MUCH TIME AT THE OFFICE.
I DIDN'T LIVE THERE. BUT I WAS JUST THERE. AND I WAS THERE DURING DAYLIGHT WHEN MAIL
CAME IN. I ALWAYS PRIDED MYSELF ON THE FACT THAT I WAS HONEST AND I FEEL IT'S GOTTEN
ME IN TROUBLE NOW BECAUSE I JUST WAS SO SURE THAT I WOULDN'T DO ANYTHING THAT WAS WRONG
THAT I DIDN'T TAKE THE TIME TO FIND OUT. BUT THAT'S WHAT I CAN TELL YOU. I'LL ANSWER
ANY QUESTIONS THAT ANYBODY HAS FOR ME. OH, AND I DO WANT TO SAY ONE MORE THING.
I DID NOT MAKE UP FEES ON THERE. IF I SENT OUT AN OVERNIGHT, I SENT OUT AN OVERNIGHT.
AND THERE WAS A FEE FOR IT. BUT, AGAIN, BECAUSE, YOU KNOW, WE'RE GOING BACK TO 2011
AND 2010, YOU KNOW, WAY BACK, IT DIDN'T -- I DIDN'T MAINTAIN THOSE UPS RECEIPTS GOING
ALL THE WAY BACK TO WHEN THE HEARING CAME IN. SO I JUST RETURNED ANYTHING AND EVERYTHING
THAT I DIDN'T HAVE A RECEIPT FOR BECAUSE I DIDN'T WANT TO HAVE AN INKLING THAT ANYBODY
WAS GOING TO SAY I DIDN'T RETURN EVERY SINGLE DIME THAT WAS IN-APPROPRIATELY TAKEN.
CHIEF JUSTICE RABNER: THANK YOU, MS. GENDEL. MS. GENDEL: NOT
WITH INTENT OF HARMING ANYBODY. CHIEF JUSTICE RABNER: THANK YOU, MS. GENDEL.
WE'LL TAKE THE MATTER UNDER ADVISEMENT. THANK YOU, COUNSEL, FOR YOUR PRESENTATIONS.