1 SYLLABUS This syllabus is not part of the Court’s opinion . It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.

In the Matter of Joseph Peter Barrett (D
- 126
- 1 7 ) (0 81035 ) Argued June 11, 2019
-- Decided July 15 , 201 9 PER CURIAM In this ethics proceeding, the C ourt considers whether Joseph Peter Barrett, an attorney who received a 150

- day suspension for knowing misappropriation of law firm funds in Utah

-- a jurisdiction that applies a preponderance of the evidence standard and recognizes no business dispute def ense -- may, based only on the Utah record, be disbarred under New Jersey’s clear and convincing evidence standard. In two separate law firm matters in Utah, respondent traded legal fees earned for his law firm for construction work performed at his home in Utah. In disciplinary proceedings in Utah , respondent, in order to explain and justify his conduct, sought to testify about a business dispute he had with his law firm. T he court determined the evidence was relevant only to the motive and credibility of testifying law firm partners. At the hearing’s conclusion, the Utah judge found by a preponderance of the evidence that respondent had knowingly misappropriated law firm funds and imposed a 150

- day suspen sion from the practice of law. T he Utah Supreme Court affirmed the 150

- day suspension. In re Discipline of Barrett , 391 P.3d 1031 , 1037

- 38 (Utah 2017). Following entry of the Utah order, the New Jersey Office of Attorney Ethics (OAE) moved before the Di sciplinary Review Board (DRB) for reciprocal discipline and requested respondent’s disbarment. Relying on In re S ie gel , 133 N.J. 162, 170 (1993), the DRB recommended disbarment. The Court dismissed without prejudice the OAE’s motion for reciprocal discip line, noting that “the findings of the tribunal in Utah were based on a preponderance of the evidence standard instead of the clear and convincing standard applicable to New Jersey disciplinary proceedings.” 234 N.J. 81, 82 (2018). The OAE filed a motion for reconsideration, which the Court granted. ___ N.J. ___ (2018).
HELD: Because the Utah court limited the presentation of evidence of a business dispute between respondent and the law firm, and because evidence that may exist in Utah cannot be compelled by respondent here, the Court cannot conclude that the OAE has proven by clear and convincing evidence that respondent knowingly misappropriated law firm funds under circumstances justifying greater discipline than that imposed in Utah.2

1. In reciprocal discipline cases , the Court should impose the same discipline as the foreign jurisdiction unless the matter is within one of five enumerated exceptions. One of the exceptions is germane to this case

- - that “the unethical conduct established warrants substantially different discipline.” R. 1:20

- 14(a)(4)(E). To “argue that the law of this state or the facts of the case do or should warrant the imposition of greater discipline than that imposed in [the] other jurisdiction[],” the Director of the OAE must “establish[] such contentions by cl ear and convincing evidence.” Id . § 14(a)(4). (pp. 5

- 6 )
2

. When a New Jersey attorney misappropriates law firm funds, the facts and circumstances of the particular case determine the sanctions warranted, up to and including disbarment. See Siegel , 133 N.J. at 170 (“[K]nowingly misappropriating funds

-

- whether from a client or from one’s partners

-- will generally result in disbarment.” (emphasis added)); see also In re Sigman , 220 N.J. 141, 158 (2014) (explaining that Siegel ’s holding “is not, and has never been, absolute” and that “[t]he Court has recognized in other settings that there are cases that warrant discipline short of disbarment”). (pp. 6

- 7)
3. The only evidence produced by the OAE in support of sanctions greater than a 150

- day suspen sion is the record of proceedings before the Utah court. Importantly, in New Jersey disciplinary proceedings, evidence of a business dispute may be a defense to the misappropriation of law firm funds. Utah has no such business dispute defense , the Utah r ecord lacks facts necessary to establish a business dispute defense , and evidence of the existence of a business dispute would be integral, in New Jersey, to defending against a charge of knowing misappropriation of law firm funds. I n Utah, respondent’s i ncentive to produce evidence of a business dispute was far different than what his motivation to produce such evidence in New Jersey would have been. (pp. 7

- 8)
4. Respondent claims that if permitted and motivated to do so, he could have produced additio nal evidence of a business dispute in Utah . A ny such evidence that may have been available during the Utah proceedings remains in Utah, outside of respondent’s and the OAE’s reach. It would therefore be fundamen tally unfair and contrary to established ru les to disbar respondent in New Jersey

-- a greater discipline than that imposed in Utah

-- based only upon the record of proceedings in Utah. (pp. 8

- 10) The Court imposes a 150
- day retroactive suspension of respondent’s license to practice law in New Je rsey. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON , FERNANDEZ
- VINA, SOLOMON , and TIMPONE join in this opinion.1 SUPREME COURT OF NEW JERSEY D

- 126 September Term 20 17

081035

In the Matter of , Joseph Peter Barrett , an Attorney at Law

. On an Order to show cause why respondent should not be disbarred or otherwise disciplined

. Argued June 11, 2019 Decided J uly 15, 2019
Charles Centinaro, Director, argued the cause on behalf of the Office of Attorney Ethics.
J ohn McGill, III, argued the cause for respondent (McGill Law Practice, attorneys).

PER CURIAM
In this ethics proceeding, we are called upon to consider whether an attorney who receive d a 150

- day suspension for knowing misappropriation of law firm funds in Utah

-- a jurisdiction that applie s a preponderance of the evidence standard and recognizes no business dispute defense

-- may , based only on the Utah record , be disbarred under New Jersey’s clear and convincing
evidence standard.2

We conclude that in this case, Rule 1:20

- 14(a) , which gov erns reciprocal discipline , does not permit “substantially different discipline” from that imposed in Utah. R. 1:20

- 14(a)(4)(E). While a lawyer’s misappropriation of law firm funds may warrant disbarment in some cases, In re Sigman , 220 N.J. 141, 153 (2014), we determine that the New Jersey Office of Attorney Ethics (OAE) did not demonstrate that the record of proceedings in Utah establishes by clear and convincing evidence that the circumstances here warrant respondent Joseph Peter Barrett’s disbarmen t. Therefore, like the Utah Sup reme Court, we impose a 150

- day suspension of respondent’s license to practice law in New Jersey , which we apply retroactively.
I. We briefly summarize the facts and procedural history outlined in the Disciplinary Review Boa rd’s (DRB) decision, which relied upon the disciplinary record developed in Utah. See R. 1:20

- 14(a)(5).
I n two separate law firm matters handled by respondent while engaged in the practice of law in Utah, respondent traded legal fees earned for his law
f irm in exchange for construction work performed at his home in Utah; he did

so without the knowledge or consent of his law firm and in violation of his law
firm ’s employment contract. Respondent’s actions deprived his law firm of more than $20,000 in lega l fees.3

In disciplinary proceedings before Utah’s District Court of the Third Judicial District, respondent , in order to explain and justify his conduct, sought to testify about a business dispute he had with his law firm. T he court questioned the releva ncy of the evidence and determined that it was relevant only to the motiv e and credibility of testifying law firm partners. As such, respondent testifie d briefly regarding the business dispute. At the hearing’s conclusion, the Utah judge found by a prepo nderance of the evidence that respondent had knowingly misappropriated law firm funds and imposed a 150

- day suspension from the practice of law. The Utah Office of Professional Conduct appealed respondent’s 150

- day suspension to the Utah Supreme Court, an d requested that respondent be disbarred

-- the presumed penalty for knowing misappropriation of client funds , 1 but not for the knowing misappropriation of law firm funds. The Utah Supreme Court clarified that “not all misappropriation is created equal , ” and declined the request “to hold that disbarment is the appropriate sanction whenever an attorney misappropriates firm funds.” In re Discipline of Barrett , 391 P.3d 1031 , 1037

-

1 See In re Discipline of Babilis , 951 P.2d 207, 217 (Utah 1997).4

38 (Utah 2017). Relying upon Utah’s disciplinary rules, 2 the Utah Supreme
C ourt affirmed the 150

- day suspension. Id. at 1038

. Following entry of the Utah Supreme Court’s order, the OAE moved
before the DRB for reciprocal discipline pursuant to Rule 1:20

- 14(a) and requested respondent’s disbarment. In response, r espondent conten ded that the Utah court deprived him of the opportunity to fully develop facts supporting his cl a imed business dispute with the law firm. R espondent therefore argued that because the OAE’s burden of proof in New Jersey disciplinary proceedings

-- clear an d convincing evidence

-- is greater than Utah’s preponderance standard, Rule 1:20

- 14(a) precludes his disbarment in New Jersey

. The DRB acknowledged that Utah has eschewed adopting a bright

- line rule mandating disbarment for the knowing misappropriation o f law firm funds
but , relying on In re Siegel , 133 N.J. 162, 170 (1993) , recommend ed respondent’s disbarment.
This Court dismissed without prejudice the OAE’s motion for reciprocal discipline, noting that “the findings of the tribunal in Utah were based on a preponderance of the evidence standard instead of the clear and convincing standard applicable to New Jersey disciplinary proceedings.” 234 N.J. 81 , 82

2 Utah RPC 8.4(c), like New Jersey RPC 8.4(c), states that a lawyer engages in professional misconduct when he or she “engage[s] in conduct involving dishonesty, fraud, deceit or misrepresentation.”5

(2018). The OAE filed a motion for reconsideration, contending that divergent standards of proof do not operate as a bar to reciprocal discipline in this case

. We granted the OAE’s motion for reconsideration. ___ N.J. ___ (2018).
II. In attorney disciplinary proceedings, we are obliged “to conduct an independent review of the record, R. 1:20

- 16(c), and determine whether the ethical violations found by the DRB have been established by clear and convincing evidence.” In re Pena , 164 N.J. 222, 224 (2000). Here, we undertake this task in the context of reciprocal discipline

-- “the process by which New Jersey applies its ethics rules to an attorney admitted in New Jersey, following the imposition of discipline in an ethics proceeding conducted by a sister jurisdiction.” Sigman , 220 N.J. at 153. As such, our review involves “a limited inquiry, substantially derived from and reliant on the foreign jurisdiction’s disciplinary proceedings.” Ibid. Consistent with that standard, our rules instruct that we should impose the same discipline as the foreign jurisdiction unless the matter is within one of five enumerated exceptions

. One of the exceptions is germane to this case

- - that “ the unethical conduct established warrants substantially different
disc ipline. ” R. 1:20

- 14(a)(4) (E) . To “argue that the law of this state or the facts of the case do or should warrant the impos ition of greater discipline than6

that imposed in [the] other jurisdiction[],” the Director of the OAE must “establish[] such content ions by clear and convincing evidence.” Id

. § 14(a)(4). Here, t he OAE b ears the burden of proving by clear and convincing evidence that respondent knowingly misappropriated law firm funds. Respondent is entitled to produce evidence that the purported misappropriation was, in fact, a business dispute. W e must then determine whether the OAE has proven by clear and convincing evidence that the facts of th e case warrant the imposition of “greater discipline than that imposed in”
Utah

-- namely, the sanction of disbarment. I bi d.
III.
T he record of the Utah disciplinary proceedi ngs shows that respondent twice misappropriated funds that belonged to his law firm and thus violated two New Jersey RPCs: RPC 1.15(a), which requires a lawyer to “hold property of client s or third persons that is in [his or her ] possession in connection with a representation separate from the lawyer’s own property ” ; and RPC 8.4(c), which prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” When a New Jersey attorney misappropriates law firm funds, the facts and circumstances of the particular case determine the sanctions w arranted , up to and including disbarment. See S i e gel , 133 N.J. at 170 (“[K] nowingly misappropriating funds7

-- wh ether from a client or from one’ s partners

-- will generally result in disbarment. ” (emphasis added) ) ; see also Sigman , 220 N.J. at 158 (explaining
that Siegel ’s holding “ is no t, and has never been, absolute” and that “[t] he Court has recognized in other settings that there are cases that warrant discipline short of disbarment ”)

. The only evidence produced by the OAE in support of sanctions greater than a 150

- day suspension is the record of proceedings before the Utah court. Importantly, in New Jersey disciplinary proceeding s , evidence of a business dispute may be a defense to the mis appropriation of law firm funds. See, e.g. , Sigman , 220 N.J. at 162 (concluding that disbarment is inappropriate where the underlying misappropriation “arose in a business dispute be tween the attorney and his firm ” ). As the OAE concedes , Utah has no such business dispute defense.
A lthough t he Utah judge did not “see a huge amount of relevancy” in testimony concerning respondent’s business dispute with the law firm , t he judge did allow respondent to touch upon such evidence for the limi ted purpose of undermining the cred ibility of the testifying law firm partners

. R espondent thus argues that the Utah court excluded evidence relevant to whether the misappropriation at issue arose in the context of a business dispute with his law firm.8

T he OAE acknowledges both that the Utah record lacks facts necessary to establish a business dispute defense and that evidence of the existence of a business dispute would be integral , in New Jersey, to defending against a charge of knowing misappropriation of law firm funds. It also concedes that it cannot subpoena witnesses and produce evidence beyond the Utah record to support its request for greater discipline. Nevertheless, t he OAE claims that those limitations do not preclude us from relying on the Utah record to support a finding of knowing misappropriation of law firm funds warranting respondent’s disbarment. We disagree.
Central to our conclusion is that in Utah , respondent’s incentive to produce evidence of a business dispute was far different than what his motivation to produce such evidence in New Jersey would have been . In Utah, the court permitted respondent to elicit testimony regarding a business dispute with his law firm only to as sist the court in assessing the testifying law firm partners’ credibility. H ere , evidence of a business dispute mi l i t ates against disbarment, notwithstanding an attorney’s misappropriation of law firm funds in violation of RPC 8.4(c).
R espondent claims that if permitted and motivated to do so, he could have produced additional evidence of a business dispute in Utah

-- the State where the al l eged business dispute occurred. The OAE and this Co urt agree9

that a ny evidence to establish a business dispute tha t may have been available during the Utah proceeding s remain s in Utah, outside of respondent’s and the OAE’s reach. We therefore believe i t would be fundamentally unfair and contrary to our established rules to disbar respondent here

-- a greater discipli ne than that imposed in Utah

-- based only upon the record of proceedings in Utah. See In re Gallo , 178 N.J. 115, 120 (2003) (finding that the imposition of discipline premised on an incomplete record “would not be fair” absent the oppor tunity for further testimony); cf. In re Gipson , 103 N.J. 75, 77 (1986) (imposing discipline where “the procedures afforded respondent accorded with principles of fundamental fairness”).
O ur constitutional responsibility is to determine the fitness of la wyers to practice law in New Jersey. See N.J. Const. art. VI , § 2 , ¶ 3

. In doing so , “we

cannot ignore relevant information that places an attorney’s conduct in its true light.” Gallo , 178 N.J. at 120

. Rather , “the details must be known, whether
suppor tive or destructive of respondent’s position.” Id. at 122. Here

-- as in every disciplinary matter before this Court

-- respondent, the OAE, and members of the public “are entitled to a disciplinary review process in which a full, undistorted picture is the basis for disciplinary sanctions.” Id. at 120. Since n o such record exists here, we are without a basis for the imposition of heightened discipline.10

Because the Utah court limited the presentation of evidence of a business dispute between respondent and the law firm , and because evidence that may exist in Ut ah cannot be compelled by respondent here, we cannot conclude that the OAE has proven by clear and convincing evidence that respondent knowingly misappropriated law firm funds under circumstances ju stifying greater discipline than that imposed in Utah.
I V. For the foregoing reasons, we impose a 150

- day retroactive suspension of respondent’s license to practice law in New Jersey.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ

- VINA, SOLOMON, and TIMPONE join in this opinion.