Opinion
DRB 20-021
12-14-2020
In the Matter of Aram Ingilian An Attorney at Law
Ryan J. Moriarty appeared in behalf of the Office of Attorney Ethics. Corey L. LaBrutto appeared in behalf of respondent. Ellen A. Brodsky Chief Counsel.
Argued: September 17, 2020.
Disciplinary Review Board District Docket No. XIV-2015-0228E
Ryan J. Moriarty appeared in behalf of the Office of Attorney Ethics.
Corey L. LaBrutto appeared in behalf of respondent.
Ellen A. Brodsky Chief Counsel.
DECISION
Bruce W. Clark, Chair
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us as an ethics appeal from a post-hearing dismissal by the District IIA Ethics Committee (DEC). We determined to grant the appeal and to schedule the matter for oral argument. The formal ethics complaint charged respondent with having violated RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice) and RPC 8.4(e) (stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law).
For the reasons set forth below, we determine to impose a three-month suspension.
Respondent was admitted to the New Jersey bar in 2001. At the relevant times, he was engaged in the practice of law in Ridgefield, New Jersey. He has no prior discipline.
On February 22, 2015, respondent drove, with his young daughter, to his parents' house in Cliffside Park, New Jersey. Due to ongoing construction, he took a circuitous route, ending with his decision to enter his parents' neighborhood by traveling the wrong way on a one-way street. When he came to a stop sign at an intersection, intending to make a turn against traffic, three teenagers crossed in front of his car. Moments later, the same teenagers were crossing his parents' driveway as he attempted to pull into it.
After respondent exited his vehicle, he engaged in a confrontation with one of the three teenagers, AG, a seventeen-year-old male, who told him that he was going the wrong way on the street. Two females accompanied AG. Respondent's version of the events is as follows. When he arrived at his parents' house, he exited the vehicle, brought his daughter to his parents, and returned to the street to speak with AG. He asked AG to calm down, but, instead, AG unexpectedly charged at him; pinned him to the parked car of respondent's mother, causing damage to it; and pressed his forearm into respondent's throat. Respondent pushed AG back and their momentum carried them both to the ground, with respondent landing on top of AG. Respondent denied punching or slapping AG in the face, but admitted that, after the initial fight ended, he made several threats to fight AG again. AG replied that he did not want to do so, and that he had not wanted to fight respondent in the first place.
In turn, AG testified that, on the date of the incident, he had just turned seventeen and was getting lunch with his friends. While walking home, he saw respondent traveling the wrong way on a one-way street. Respondent accelerated his vehicle toward AG and his friends, got out of the car, and charged at him. Respondent then grabbed AG and pushed him into a parked car. Once AG was against the car, respondent began choking, punching, and kicking him. AG's glasses were broken in the altercation and he received injuries to his face and neck, as well as a concussion, for which he received medical treatment at a local hospital.
A cell phone video captured a portion of the fight and the ensuing conversations. When the altercation concluded, respondent directed AG to wait for the police, because he wanted AG to pay for the damage to his mother's car. Because respondent believed AG intended to flee the scene, he told AG, "I'll fucking hunt you down. I'll find you." Respondent also said, "I am on the municipal court council committee. You know what I am? I am an official fucking member of this town. So, you know what that means? You just assaulted a member of the town." He added that he would bring "the whole fucking town, the police force, [and] the mayor" as witnesses to court and "you're going to [the juvenile detention center] homeboy." Respondent, however, was not a member of the municipal court committee at that time. He claimed that, in 2003, about twelve years prior to this incident, he was selected to be on the committee, but never attended a meeting, contributed to the committee, or considered himself part of the committee.
In addition to the events captured on the video, AG reported to the police that respondent threatened, "I will kill you. I will fucking shoot you. I will stab and kill you." Respondent admitted having threatened AG, but denied that he threatened to kill him. Rather, he claimed he said, "you're going to pay for this," "I am going to find you," and that AG was "going to be fucked." AG maintained that, because respondent knew where he lived, he was frightened that respondent would harm him or his family, given that respondent had just assaulted him and had threatened to find and kill him.
Peter Mundo, who witnessed a portion of the incident, testified that he observed respondent arguing with AG, who was spitting blood and whose eyeglasses had been broken. Mundo had not observed the confrontation, but saw no visible injuries to respondent. Mundo heard respondent, "yelling in [AG's] face" that "I will bury you." He also heard respondent yell that, "I know every cop, seventy nine out of eighty in town. I am tight with all of them and I'm on the municipal court. Welcome to Cliffside motherfucker." Mundo's impression at the time was that an adult was using his political power to bully a minor.
Mundo further testified that, following the initial altercation, respondent repeatedly threatened to fight AG again. Not only did AG say that he did not want to fight, it was clear to Mundo that he had not wanted to fight at all. He described AG as a "scrawny kid," and said that nothing about his body language or his words implied that he had any interest in engaging in a physical altercation with respondent.
Mundo also heard respondent order AG and the two females accompanying him to get off his property and to stand in the street to "'wait for the police motherfucker.'" They did as they were told and did not try to fight or to leave. Mundo further testified that respondent stood in the middle of the street and yelled, "you can get every Mexican and Muslim on this street to defend your story, but it doesn't mean shit because I will bury you."
As a result of the altercation with AG, respondent was charged with aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7), and terroristic threats, in violation of N.J.S.A. 2C:12-3(a). He also received tickets for careless driving and for driving the wrong way on a one-way street. AG was not charged with any offense. On December 9, 2015, respondent was admitted into the Pretrial Intervention Program (PTI), without an admission of guilt. On January 10, 2017, he completed PTI, including required anger management courses, and the criminal complaint was dismissed. In January 2019, respondent paid $75,000 to settle a civil lawsuit that AG had filed against him.
At the DEC hearing, Garo Bakmazian appeared as a character witness for respondent. Bakmazian has known respondent since 1983, owns the firm at which respondent has practiced law since 2001, and opined that respondent is honest, compassionate, and trustworthy.
In his summation brief, respondent's counsel argued that a finding of any RPC violation in this matter would create a troubling precedent. Specifically, counsel argued that respondent was not "acting in a professional capacity on the day in question; he was acting as a private citizen." He further argued that, if respondent is found to have violated the RPCs under these circumstances,
then anytime an attorney gets angry, not in court, but in their private lives and says something out of anger that implies an ability to improperly influence a governmental body or court, they will have violated the
RPCs. The RPCs were not created to hold attorneys to such an impossible standard in their private lives.
Counsel also asserted that, in connection with the altercation, respondent "accurately summarized the law and procedure of a trial; he announced he was a public servant; and he stated that he would press charges against [AG]." Counsel maintained that respondent did not abuse his power, try to use his status to his advantage, or otherwise dissuade AG from filing a complaint. Therefore, respondent's counsel concluded, the Office of Attorney Ethics (OAE) had failed to prove, by clear and convincing evidence, that respondent had violated the RPCs or that he should be disciplined.
In its report, the DEC hearing panel addressed the demeanor of both respondent and AG during the ethics hearing. AG portrayed himself at the hearing as a terrified juvenile, afraid for his life because respondent knew where he lived. The panel remarked, however, that the video evidence illustrated that, when respondent threatened to hunt AG down, AG stood up to respondent and loudly stated "I live right here!" The panel cited other instances in which AG had asserted himself and shown a lack of fear.
The panel determined that, although respondent's statements after the altercation would not have been proper for a courtroom proceeding, in this instance, they were made to keep AG at the scene and, in respondent's mind, were made so that justice could be administered fairly. Further, the panel emphasized that respondent made these statements solely in connection with his private life, outside of court or an administrative proceeding. Consequently, the panel found no prejudice to the administration of justice, in violation of RPC 8.4(d).
The panel also determined that respondent's statements did not violate RPC 8.4(e). In its view, respondent neither stated nor implied an ability to improperly influence a government agency or official. Rather, he "was basically expressing what he was going to do, i.e. have people testify for respondent in the future." The panel distinguished this case from the facts in In re Laufer, N.J. (2019), where the attorney indicated to his adversary, in a courtroom, that the prosecutor was "in his pocket." In the Matter of William M. Laufer, DRB 18-182 (November 27, 2018) (slip op. at 5).
The driving force behind the panel's decision was a lack of case law addressing RPC 8.4(e). The panel discussed cases that the OAE cited involving violations of DR-9-101(c), the predecessor to RPC 8.4(e), but distinguished those cases, because the misconduct had occurred within the context of litigation, not in the private lives of the attorneys. Therefore, the panel unanimously recommended that the RPC 8.4(e) charge and, thus, the entire ethics complaint, be dismissed.
Following a de novo review of the record, we are satisfied that the record clearly and convincingly establishes that respondent was guilty of unethical conduct. Specifically, we determine that respondent violated RPC 8.4(d) and RPC 8.4(e).
After engaging in a physical altercation with AG, a teenager, respondent was charged with several criminal offenses and subsequently completed PTI. Although it is unclear who initiated the scuffle, the video evidence clearly illustrates that, once the altercation had concluded, respondent remained aggressive, threatening to fight AG again and to send him to juvenile court, by exercising his purported influence with local government, law enforcement, and municipal court officials in Cliffside Park. Despite respondent's denial that he was the aggressor, he was the only one charged by law enforcement with violations stemming from the incident; he was the only one who was ordered to complete PTI, including an anger management course; and he eventually paid $75,000 to AG to settle a civil action.
Respondent admitted making threats to AG, such as, "I'll fucking hunt you down. I'll find you," "I am on the municipal court committee," "I am an official fucking member of this town," I will "bring the whole fucking town, the police force, [and] the mayor" as witnesses to court, "you're going to [juvenile detention] homeboy," and that AG was "going to be fucked."
The obvious intent of respondent's statements was to imply his ability to improperly influence municipal authorities and to intimidate AG, as clearly evidenced by respondent's statement that AG "just assaulted a member of this town." Based on the plain language of RPC 8.4(e), which states that "[i]t is professional misconduct for a lawyer to . . . state or imply an ability to influence improperly a government agency or official," it is irrelevant whether respondent's comments were made, as he asserts through counsel, to summarize the law and procedure, to announce that he was a public servant, and to state that he would press charges. Parenthetically, we note that none of those circumstances are accurate: respondent was not summarizing the law and procedure, he was not a public servant, and he failed to press charges against AG. Respondent clearly implied his ability to influence the municipal court and police department of Cliffside Park, New Jersey, in order to intimidate and bully a seventeen-year-old. Accordingly, we find that respondent violated RPC 8.4(e).
Moreover, we reject respondent's arguments that he cannot be found guilty of unethical conduct because his actions did not involve the practice of law or arise from a client relationship. Those circumstances will not excuse the ethics transgression or lessen the degree of sanction. In re Musto, 152 N.J. 167, 173 (1997). The obligation of an attorney to maintain the high standard of conduct required by a member of the bar applies even to activities that may not directly involve the practice of law or affect the attorney's clients. In re Schaffer, 140 N.J. 148, 156 (1995). "To the public he is a lawyer whether he acts in a representative capacity or otherwise." In re Gavel, 22 N.J. 248, 265 (1956). Thus, offenses that evidence ethics shortcomings, although not committed in the attorney's professional capacity, will, nevertheless, warrant discipline. In re Hasbrouck, 140 N.J. 162, 167 (1995).
In respect of the RPC 8.4(d) charge, respondent did not cause delays or otherwise waste judicial resources, which is the usual type of conduct resulting in a finding of conduct prejudicial to the administration of justice. We determine, however, that respondent violated RPC 8.4(d), because his conduct undermined the integrity of, and served to diminish public confidence in, the criminal justice system. His comments, specifically those regarding his influence over the municipal court and the police force in Cliffside Park, were intended to intimidate and otherwise discourage AG from raising allegations against him. Respondent bullied AG by implying that, through his influence over the municipal court, he would have an advantage. In the video, among his other threats, respondent repeated several times, "we'll see in court." Respondent's assertion that he had the same influence over the mayor, whom he claimed would testify in respondent's behalf, and over the Cliffside Park Police, only exacerbated these threats. Moreover, AG was not the only person who heard respondent's threats. Two other teenagers were present and at least one other person, Mundo, heard the exclamations, which occurred on a public street. For these reasons, we determine that respondent violated RPC 8.4(d).
The video of the post-altercation exchanges between respondent and AG is limited. The panel correctly found that AG did not appear to be as frightened in the video as he claimed in his testimony, but that discrepancy has no bearing on the overall gravity of respondent's misconduct. The rest of the video shows that AG and his companions consistently asserted that respondent attacked AG. Spots of AG's blood are visible in the snow at his feet. AG and his companions remained rooted in place on the sidewalk, while respondent stalked in and out of view, visibly and audibly upset and aggressive. At one point, respondent approached AG, got very close to him, assumed a very aggressive posture, and began yelling at him. As stated, respondent remained aggressive, physically and verbally, continuing to bully a teenager who, conversely, was in more control and appeared to be the more mature of the two at that time.
In sum, we find that respondent violated RPC 8.4(d) and RPC 8.4(e). The only remaining issue is the appropriate quantum of discipline to be imposed for respondent's misconduct.
Conduct prejudicial to the administration of justice comes in a variety of forms, and the discipline imposed for the misconduct typically results in discipline ranging from a reprimand to a suspension, depending on other factors present, including the existence of other violations, the attorney's ethics history, whether the matter proceeded as a default, the harm to others, and mitigating or aggravating factors.
Reprimands were imposed in the following cases: In re Ali, 231 N.J. 165 (2017) (reprimand for attorney who disobeyed court orders by neither appearing in court when ordered to do so nor filing a substitution of attorney, violations of RPC 3.4(c) and RPC 8.4(d); he also lacked diligence (RPC 1.3) and failed to expedite litigation (RPC 3.2) in one client matter and engaged in ex parte communications with a judge, a violation of RPC 3.5(b); in mitigation, we considered respondent's inexperience and unblemished disciplinary history, and the fact that his conduct was limited to a single client matter); In re Cerza, 220 N.J. 215 (2015) (reprimand for attorney who failed to comply with a bankruptcy court's order compelling him to comply with a subpoena, which resulted in the entry of a default judgment against him; violations of RPC 3.4(c) and RPC 8.4(d); he also failed to promptly turn over funds to a client or third person, violations of RPC 1.3 and RPC 1.15(b); prior admonition for recordkeeping violations and failure to promptly satisfy tax liens in connection with two client matters, even though he had escrowed funds for that purpose); and In re Gellene, 203 N.J. 443 (2010) (attorney found guilty of conduct prejudicial to the administration of justice and knowingly disobeying an obligation under the rules of a tribunal, for failing to appear on the return date of an appellate court's order to show cause and failing to notify the court that he would not appear; the attorney was also guilty of gross neglect, pattern of neglect, lack of diligence, and failure to communicate with clients; mitigating factors included the attorney's financial problems, his battle with depression, and significant family problems; his ethics history included two private reprimands and an admonition).
Censures were imposed in the following cases: In re D'Arienzo, 207 N.J. 31 (2011) (attorney failed to appear in municipal court for a scheduled criminal trial, and thereafter failed to appear at two orders to show cause stemming from his failure to appear at the trial; by scheduling more than one matter for the trial date, the attorney inconvenienced the court, the prosecutor, the complaining witness, and two defendants; in addition, the failure to provide the court with advance notice of his conflicting calendar prevented the judge from scheduling other cases for that date; prior three-month suspension, two admonitions, and failure to learn from similar mistakes justified a censure); and In re LeBlanc, 188 N.J. 480 (2006) (attorney's misconduct in three client matters included conduct prejudicial to the administration of justice for failure to appear at a fee arbitration hearing, failure to abide by a court order requiring him to produce information, and other ethics violations; mitigation included, among other things, the attorney's recognition and stipulation of his wrongdoing, his belief that his paralegal had handled post-closing steps, and a lack of intent to disregard his obligation to cooperate with ethics authorities; no prior discipline).
Suspensions were imposed where attorneys either had significant ethics histories or were guilty of violating a number of ethics rules, or both. See, e.g., In re DeClemente, 201 N.J. 4 (2010) (three-month suspension for attorney who arranged three loans to a judge in connection with his own business, failed to disclose to opposing counsel his financial relationship with the judge and failed to ask the judge to recuse himself, made multiple misrepresentations to the client, engaged in an improper business transaction with the client, and engaged in a conflict of interest; no prior discipline); In re Block, 201 N.J. 159 (2010) (six-month suspension where attorney violated a court order that he had drafted by failing to transport his client from prison to a drug treatment facility, instead leaving the client at a church while he made a court appearance in an unrelated case; the client fled and encountered more problems while on the run; the attorney also failed to file the affidavit required by R. 1:20-20; failed to cooperate with disciplinary authorities; failed to provide clients with writings setting forth the basis or rate of the fees; lacked diligence, engaged in gross neglect, and failed to turn over a client's file; prior reprimand and one-year suspension); and In re Bentiveqna, 185 N.J. 244 (2005) (motion for reciprocal discipline; two-year suspension for attorney who was guilty of making misrepresentations to an adversary, negotiating a settlement without authority, filing bankruptcy petitions without authority to do so and without notifying her clients, signing clients' names to documents, making misrepresentations in pleadings filed with the court, and violating a bankruptcy rule prohibiting the payment of fees before paying filing fees; the attorney also was guilty of conduct prejudicial to the administration of justice, gross neglect, failure to abide by the client's decision concerning the objectives of the representation, failure to communicate with clients, excessive fee, false statement of material fact to a tribunal, and misrepresentations; no prior discipline).
Relatively few cases have addressed violations of RPC 8.4(e). In In re Daly, 170 N.J. 200 (2001), the attorney was found to have violated RPC 8.4(e) by telling a client that a judge was his friend and would not enforce the daily monetary sanction for the attorney's failure to provide discovery materials to opposing counsel. In the Matter of Kevin J. Daly, DRB 00-386 (September 6, 2001) (slip op. at 23). In In re Sears, 71 N.J. 175 (1976), the attorney was found to have violated DR 9-101(c), the precursor to RPC 8.4(e), by creating the impression that he could improperly influence a federal judge in connection with a pending Securities and Exchange Commission investigation. The Court opined in respect of that attorney's mens rea, that
[i]t is irrelevant whether [the attorney] actually makes the attempt [to influence the judge] or accomplishes the objective (citations omitted) . . . Aside from the obvious appearance of impropriety, such a statement creates an erroneous impression that the attorney occupies a peculiarly advantageous position in his association with the judge or government official.
[Id. at 191.]
The above cases, however, provide no guidance for the appropriate quantum of discipline for a violation of RPC 8.4(e) because both attorneys were guilty of other, more serious misconduct, leading to the disbarment of the attorney in Daly, and the imposition of a three-year suspension on the attorney in Sears.
As the DEC panel and the OAE noted, the most recent case dealing with RPC 8.4(e) is In re Laufer. There, during extremely contentious domestic violence proceedings, Laufer asked the judge to refer the opposing party to the Morris County Prosecutor's Office for investigation and potential criminal charges. The court promptly recessed to contact the Morris County Prosecutor's Office. In the Matter of William M. Laufer, DRB 18-182 (November 27, 2018) (slip op. at 14). During the recess, opposing counsel made a reasonable inquiry as to whether the Morris County Prosecutor was respondent's former law partner, and the pertinent recorded exchange unfolded. In reply to counsel's question, Laufer stated that the prosecutor was his former partner, that he had obtained that government position for the prosecutor, that Laufer had him "in [his] pocket," and that the prosecutor was "irrecusable." Id. at 14-15. Laufer made those comments in the presence of his client, the opposing party, court staff, and sheriff's officers, while in a courtroom, seated at counsel table. Id. at 15.
Because there was no direct precedent for us to consider in crafting the appropriate quantum of discipline in Laufer, we considered Laufer's misconduct to be akin to violations of RPC 3.2 and RPC 8.2(a), which prohibit attorneys from displaying disrespectful or insulting conduct to persons involved in the legal process, and from making statements "that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications of a judge, adjudicatory officer or other public legal officer . . ." Id. at 21.
Although we determined that a censure was warranted, the Court imposed an admonition. In re Laufer, __ N.J. __ (2019).
Here, we find it appropriate to analogize this matter to cases involving violations of RPC 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects) wherein attorneys exhibit violent behavior. It is unclear why respondent was not charged with a violation of RPC 8.4(b). It is well-settled that a violation of RPC 8.4(b) may be found even in the absence of a criminal conviction or guilty plea. In re Gallo, 178 N.J. 115, 121 (2003) (the scope of disciplinary review is not restricted, even though the attorney was neither charged with nor convicted of a crime) and In re McEnroe, 172 N.J. 324 (2002) (attorney found to have violated RPC 8.4(b), despite not having been charged with or found guilty of a criminal offense). Because respondent was not charged with a violation of RPC 8.4(b), we cannot find that he violated that RPC. We can consider as an aggravating factor, however, the violent and criminal nature of respondent's misconduct, and look for guidance from matters that involved attorneys who received discipline stemming from physical altercations.
There is no typical or "baseline" measure of discipline in matters involving an attorney's violent behavior. In re Buckley, 226 N.J. 478 (2016), and In re Goiran, 224 N.J. 446 (2016). Rather, such cases require fact-sensitive analyses. Ibid. To date, in such matters, the Court has imposed either a censure or a three-month suspension.
In In re Milita, 217 N.J. 19 (2014), the attorney initiated a "road rage" altercation on the belief that he was being improperly "tailgated" by a vehicle. In the Matter of Martin J. Milita, Jr., DRB 13-159 (December 3, 2013) (slip op. at 2). The incident began with an exchange of hand gestures between the vehicles, but soon escalated when the attorney pulled over, partially emerged from his vehicle, and brandished a knife at the two young men in the other vehicle. Ibid. When the other vehicle left the scene, Milita followed it through several towns, for nine to twelve miles. Id. at 2-3. While following the young men, he continued to brandish the knife. Id. at 3. During Milita's pursuit of the victims, they called the police, who instructed them to drive to a local hospital, where officers were waiting. Ibid.
At first, Milita lied to the police, denying that he had brandished a knife. Ibid. Later, he admitted having a knife, but claimed that his mechanic had given it to him to fix a recurring problem with his vehicle. Ibid.
Milita entered a guilty plea to hindering apprehension, a disorderly persons offense, and two counts of harassment, petty disorderly persons offenses. Id. at 3, 6. He was sentenced to three concurrent one-year periods of probation, 100 hours of community service, and the imposition of mandatory statutory fines. Id. at 6.
On a motion for final discipline, the OAE sought a three-month suspension. Id. at 7. Instead, we imposed a censure and required Milita to continue treatment with a mental health professional until medically discharged. Id. at 8, 14. In choosing to censure Milita, we stressed the following factors: although the attorney's behavior was menacing, he had no physical contact with the occupants of the other vehicle; he was receiving treatment for psychological and medical issues that contributed to his behavior; and he was not actively practicing law and, thus, the concern for protection of the public was reduced. Id. at 14. Moreover, Milita had no disciplinary history. Id. at 2. The Court agreed with our determination. In re Milita, 217 N.J. 19.
More recently, in Buckley, the attorney assaulted a taxi driver in Jersey City. In the Matter of Christopher J. Buckley, DRB 15-148 (December 15, 2015) (slip op. at 4-5). The incident began when the attorney informed the taxi driver that he had only $9 for a $63 fare and needed to go to his apartment to retrieve his ATM card. Id. at 4. When the taxi driver locked the attorney in the back of the taxi, the situation quickly escalated. Ibid. The attorney, who was 6'5" tall and weighed 280 pounds, began to kick at a door and window of the vehicle. Ibid. Presumably to preserve his vehicle, the taxi driver allowed the attorney to exit, but pursued him, seeking payment of his fare. Id. at 5. In response, the attorney grabbed the taxi driver's face and then struck him with a closed fist, resulting in lacerations to the driver's forehead and upper lip, broken eyeglasses, and pain in his nose and mouth. Ibid.
The police arrived, interviewed the taxi driver, and arrested Buckley, who was in a nearby bar. Ibid. Initially, Buckley was charged with robbery, an indictable offense. Ibid. Ultimately, however, he entered a guilty plea to simple assault, a disorderly persons offense. Id. at 2. Buckley was sentenced to mandatory statutory fines and agreed to pay $750 in restitution to the victim. Id. at 3.
As in this case, the OAE sought either a censure or a three-month suspension. Id. at 6. We imposed a censure, stating that "[b]ut for the mitigation addressed above, the violent behavior under scrutiny in this case - the assault of a taxi driver who was seeking the fare for his services - would result in the imposition of a three-month suspension to protect the public and to preserve confidence in the bar." Id. at 16. Specifically, we found the following mitigating factors: the attorney entered a guilty plea; he openly acknowledged his criminal conduct and exhibited remorse; he agreed to $750 in restitution in an effort to make the victim whole; he had no disciplinary history and was a recently-admitted attorney at the time of his misconduct; and, as in Milita, he was not engaged in the practice of law at the time of his misconduct and, thus, the concern for protection of the public was reduced. Id. at 15. The Court disagreed with our determination and imposed a three-month suspension. In re Buckley, 226 N.J. 478 (2016).
In another "road rage" incident, the attorney, angered by the actions of another driver, exited his vehicle, retrieved a baseball bat from the trunk, and struck the driver's vehicle multiple times. In re Collins, 226 N.J. 514 (2016), In the Matter of John J. Collins, DRB 15-140 (December 15, 2015) (slip op. at 3). The multiple blows to the vehicle broke the windshield and a side mirror and caused the driver and a passenger imminent fear of bodily injury. Ibid.
Collins did not admit striking either of the victims with his fist, attempting to strike either of the victims with the baseball bat, or causing actual injury to either of the victims, as they had claimed. Ibid. Neither the State nor the court required him to address these allegations during his plea allocution. Ibid.
Initially, Collins was charged with aggravated assault, possession of a weapon for an unlawful purpose, and criminal mischief - all indictable offenses. Ibid. Ultimately, however, he entered a guilty plea to two counts of simple assault, and one count of criminal mischief - all disorderly persons offenses. Id. at 1-2. Collins was sentenced to three concurrent one-year terms of probation and was ordered to have no contact with the victims and to pay mandatory statutory fines. Id. at 3. He agreed to pay $1,500 in restitution. Ibid.
The OAE recommended a six-month suspension. Id. at 6. Instead, we suspended respondent for three months, finding that mitigation and aggravation were in equipoise, and that Collins' violent behavior was more serious than that of the attorney in Buckley. Id. at 20-21. The Court agreed with our determination.
Finally, in In re Gonzalez, 229 N.J. 170 (2017), the attorney, as a result of aggressive interactions on the roadway, initiated a confrontation with a twenty-one-year old woman. In the Matter of Ralph Alexander Gonzalez, DRB 16-422 (March 21, 2017) (slip op. at 2). Although Gonzalez claimed that the woman had been driving recklessly, he admitted that, after she stopped her vehicle, he exited his vehicle "probably wanting to hurt someone. I would say even worse than that." Ibid.
Specifically, Gonzalez retrieved a golf club from his trunk and swung the club at the woman's vehicle "as if he were going to hit it," and then threw the club at her car as she attempted to drive away. Ibid. The club struck the woman's vehicle multiple times as it caromed about. Ibid. Gonzalez retrieved the club and closely approached the woman's vehicle. Ibid. He could see and hear the woman crying and attempting to explain herself, but he was unmoved, stating to her that "this could have been my daughter and this is a lesson. You don't go running people off the side of the road." Ibid. Nevertheless, respondent then left the scene without contacting the police, rationalizing that "nobody [was] bleeding." Ibid.
Gonzalez stated that "he lost control over his emotions and is remorseful." Ibid. Ultimately, the police identified and contacted Gonzalez, who cooperated with the police investigation. Ibid. He also reported his charges to the OAE. Ibid.
According to the victim, the incident with Gonzalez began when she suddenly braked to avoid a deer. Ibid. She claimed that he began to aggressively "tailgate" her vehicle and attempted to improperly pass her. Ibid. At some point, she stopped her vehicle at an intersection. Ibid. Gonzalez then exited his vehicle and began striking the trunk of her vehicle with his golf club. Ibid. When she attempted to leave the scene, he threw the club at her vehicle, striking it again. Ibid. She then called the police, who interviewed her at the scene and photographed two large dents in her trunk and marks on her rear windshield. Ibid. The victim was distraught and reported being unable to sleep for fear that Gonzalez might know where she lived and might hurt her or her family. Ibid.
Gonzalez was admitted into PTI, conditioned on payment of $2,248.66 in restitution to the victim; the successful completion of an anger management course; his agreement to refrain from filing complaints against the victim; and his agreement to abide by the terms of the PTI program. Id. at 2-3. Gonzalez accepted responsibility for all damage to the victim's vehicle, including the dents that he claimed he did not make, and successfully completed PTI. Id. at 3.
We imposed a three-month suspension on Gonzalez, noting that his misconduct was similar to that of the attorney in Collins, who had received the same discipline, notwithstanding his clean disciplinary record. Id. at 5. In both cases, the attorneys committed an act of road rage, terrorizing their victims in public places. Id. at 4. We rejected Gonzalez's claim of remorse, citing his state of mind when he exited his car, to wit, that he wanted to hurt someone or take "even worse" action, in addition to his verbal attack on the victim. Ibid.
Moreover, we were troubled that the case constituted Gonzalez's third disciplinary matter, including two prior violations of RPC 8.4(d). Ibid. We opined that Gonzalez had "demonstrated a penchant for lack of respect for the administration of justice." Id. at 5. Thus, he received a three-month suspension in order "to protect the public and to preserve confidence in the bar." Ibid.
Although the instant case did not stem from an altercation involving automobiles, the fact-sensitive analysis and range of discipline are the same in other types of assault cases. See, e.g., In re Goiran, 224 N.J. 446 (2016). There, the attorney pleaded guilty, in a Colorado state court, to one count of third-degree assault (knowingly or recklessly causing bodily injury to another person), a Class I misdemeanor. In the Matter of Philip Alexander Goiran, DRB 15-215 (December 18, 2015) (slip op. at 1). The underlying conduct occurred on September 29, 2010, outside of the home of Goiran's in-laws, where his estranged wife resided, along with the couple's dog and cat. Ibid.
On the belief that he and his wife had agreed to his possession of their pets, the attorney telephoned his father-in-law and informed him of his intention to pick up the dog. Id. at 2. His father-in-law replied that he would not comply with the request until he had a chance to speak with his daughter, who had gone out for the evening. Ibid. Goiran went to the home anyway, where he engaged in a verbal confrontation with his father-in-law, which escalated to a physical altercation. Ibid. The attorney struck and bit his father-in-law as they wrestled to the ground. Ibid.
The attorney was sentenced to probation, was required to attend an alcohol evaluation and treatment program, and was ordered to receive domestic violence treatment. Ibid. Subsequently, the Presiding Disciplinary Judge approved the Conditional Admission of Misconduct submitted by the Colorado disciplinary authorities and, although the judge suspended Goiran from the practice of law in Colorado for sixty days, the suspension was stayed upon the successful completion of a two-year probation term. Ibid.
Following the disciplinary action in Colorado, the attorney reported to the OAE his guilty plea and resultant Colorado discipline, cooperated with disciplinary authorities in both jurisdictions, and engaged in substantial rehabilitation efforts. Ibid. He attended ethics courses and domestic violence prevention classes, apologized to his in-laws and his now former wife, and worked to repair his relationship with them. Ibid.
We imposed a censure on Goiran, because his conduct was less egregious than that of the attorney in Buckley. Id. at 5. Moreover, substantial mitigation weighed in Goiran's favor. Ibid.
Here, based solely on respondent's violation of RPC 8.4(d), a reprimand is the starting point in determining the proper quantum of discipline. Respondent's additional and egregious violation of RPC 8.4(e) serves to enhance that discipline. Based on the disciplinary precedent, the appropriate discipline would be a short-term suspension.
In aggravation, respondent assaulted a teenage boy, bullied him afterward by claiming influence over the police and municipal court in town, and, as of the date of oral argument before us, appears to refuse to accept responsibility for his role in the matter, including his repeated denial that he struck or otherwise attacked AG, when the evidence points to the contrary.
In mitigation, respondent has no history of discipline in nineteen years at the bar and has exhibited a level of cooperation throughout the disciplinary process, including his stipulation to many of the facts. In our view, however, this mitigation does not outweigh the aggravating factors. Specifically, as stated, respondent assaulted and bullied a teenage boy. This behavior may be aberrant, but that makes it no less abhorrent. An attorney behaving in public, as respondent did here, significantly undermines the public's confidence in the entire bar. Therefore, we determine to impose a three-month suspension.
Chair Clark and Members Boyer and Singer voted to impose a censure. Member Singer, however, did not find a violation of RPC 8.4(d). She notes that (a) all the cases cited by the majority finding conduct prejudicial to the administration of justice involve court-related conduct such as disobeying court orders or failing to appear for a scheduled hearing, far different than respondent's non-court-related conduct here; and (b) the majority uses identical conduct of respondent to find violations of both RPC 8.4(d) and RPC 8.4(e). Thus, the majority finds two RPC violations rather than one for the same conduct of "implying" "his influence over the municipal court" (see p.11). Members Joseph and Rivera did not participate.
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.