Brian T. Kernan received a call from a client who had been indicted on two second-degree counts related to the mishandling of his mother's assets. The client had held a power of attorney for his ailing mother, who suffered from dementia and other difficulties, and who resided in a nursing home in New Jersey. After making a number of legitimate payments on behalf of his mother, including more than $400,000 to the nursing home, the client began taking significant sums for his own use. Over a few years, this sum totaled approximately $200,000. The state Medicaid fraud unit investigated and charged Kernan's client with misapplication of entrusted property and theft by failure to make required disposition. As both were charged in the second degree, no pre-trial intervention was available. Avoiding prison time became the goal, despite the presumption of incarceration attached to both counts. Kernan's client did have a number of sentencing factors in his favor, including lack of any criminal record, a family who depended on him, a long and positive work history, and the ability to pay restitution, given a good job as a field supervisor for a billion-dollar construction firm.
The state's deputy attorney general was willing to listen and asked Brian T. Kernan to craft a mitigation letter for consideration. He argued that if his client goes to prison, everyone loses: the victim, his client's family, and surely the client himself. Kernan was able to argue well enough to forge an agreement that included a recommendation of probation and a significant restitution payment. His client has continued to work and provide for his family, the victim is receiving some compensation, and his client avoided a near demolition of his personal life, remaining very active in the lives of his two teenage sons.