Opinion
DRB 20-347
08-16-2021
In the Matter of Angeles Roca An Attorney at Law
Ryan J. Moriarty appeared on behalf of the Office of Attorney Ethics. Marc D. Garfinkle appeared on behalf of respondent.
Argued: May 20, 2021
Ryan J. Moriarty appeared on behalf of the Office of Attorney Ethics.
Marc D. Garfinkle appeared on behalf of respondent.
DECISION
Hon. Maurice J. Gallipoli, A.J.S.C. (Ret.), Chair.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (the OAE), pursuant to R. 1:20-14(a), following an April 9, 2019 order issued by the Supreme Court of Pennsylvania suspending respondent, by consent, for one year and one day. The OAE asserted that respondent admitted having violated the equivalents of New Jersey RPC 3.5(a) (seeking to influence a judge, juror, prospective juror or other official by means prohibited by law); RPC 8.1(a) (making a false statement of material fact in a disciplinary matter); RPC 8.3(b) (a lawyer who knows that a judge has committed violations of applicable rules of judicial conduct that raise a substantial question as to the judge's fitness for office shall inform the appropriate authority); RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice); and RPC 8.4(f) (knowingly assist a judge or judicial officer in conduct that is in violation of applicable rules of judicial conduct or other law).
For the reasons set forth below, we determine to grant the motion for reciprocal discipline and to impose a deferred, one-year suspension.
Respondent earned admission to the New Jersey and Pennsylvania bars in 1996. At all relevant times, she was a judge in the Philadelphia Court of Common Pleas. Respondent has no prior discipline in New Jersey.
On September 24, 2012, respondent's New Jersey license was administratively revoked, pursuant to R. 1:28-2(c), for failure to pay the annual attorney registration fee to the Lawyers' Fund for Client Protection for seven consecutive years. R. 1:28-2(c) states, in part, that "an Order of revocation shall not, however, preclude the exercise of jurisdiction by the disciplinary system in respect of any misconduct that occurred prior to Order's effective date." A portion of respondent's misconduct under scrutiny in this matter occurred prior to the revocation of respondent's license. Accordingly, the Court has jurisdiction to address that component of respondent's misconduct.
On February 28, 2019, the Disciplinary Board of the Supreme Court of Pennsylvania filed a petition instituting formal disciplinary charges against respondent. The facts of this matter are taken from the Joint Petition in Support of Discipline on Consent Under Pa.R.D.E. 215(d) (the Joint Petition) executed by respondent and the Pennsylvania Office of Disciplinary Counsel (the ODC).
From October 25, 2008 through January 13, 2016, respondent served as a judge in the Court of Common Pleas in Philadelphia County. On January 13, 2016, she was suspended in connection with a complaint filed against her by the Judicial Conduct Board. In an October 20, 2016 opinion and order, which followed her trial before the Court of Judicial Discipline, respondent was found guilty of violating various judicial canons and Constitutional provisions, including: former Canon 2A of the Code of Judicial Conduct (judges should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary); former Canon 2B of the Code of Judicial Conduct (judges should not allow their family, social, or other relationships to influence their judicial conduct or judgment); Article V, § 18(d)(1) of the Pennsylvania Constitution (conduct that brings the judicial office into disrepute); Article V, § 18(d)(1) of the Pennsylvania Constitution (conduct that prejudices the proper administration of justice); and an automatic, derivative violation of Article V, § 17(b) of the Pennsylvania Constitution (inasmuch as it has been found that respondent's conduct constitutes a violation of former Canons 2A and 2B of the Code of Judicial Conduct).
A sanctions hearing was held and, as set forth in a December 16, 2016 order of the Court of Judicial Discipline, respondent was removed from judicial office and deemed ineligible to hold judicial office in the future. The Pennsylvania Supreme Court affirmed the decision of the Court of Judicial Discipline. In re Angeles Roca, First Judicial District, Philadelphia County, 173 A.3d 1176 (Pa. 2017).
On January 5, 2017, respondent resumed her private practice of law, having filed an administrative change in status to "active" with the Pennsylvania Attorney Registration Office.
The facts giving rise to the judicial and disciplinary actions against respondent are as follows. Respondent's son, Ian Rexach, owned a barbershop in Philadelphia. On or about March 27, 2012, the Philadelphia City Solicitor's Office filed a complaint in Philadelphia Municipal Court against Rexach for his failure to file a required 2008 business privilege tax return. Rexach failed to appear for the hearing on the complaint and, on May 15, 2012, the municipal court entered a default judgment against him.
On June 12, 2012, former Judge Dawn A. Segal, of the Philadelphia Municipal Court, denied Rexach's pro se petition to open judgment. Thereafter, on June 26, 2012, respondent initiated a telephone call to former Philadelphia Municipal Court Judge Joseph C. Waters, Jr. Unbeknownst to respondent, Waters' telephone conversations were being lawfully intercepted by the Federal Bureau of Investigation (the FBI).
At our September 17, 2020 session, we considered the OAE's motion for reciprocal discipline against Segal. We subsequently recommended to the Court that Segal be disbarred. In the Matter of Dawn A. Segal, DRB 20-072 (February 11, 2021). The Court disagreed and imposed a three-year prospective suspension. In re Siegel, 246 N.J. 137 (2021).
The following conversation took place between respondent and Waters during the June 26, 2012 telephone call:
Roca: I have a question . . . Can you file a motion for reconsideration with [Segal]?
Waters: Yeah. You file a Motion for Reconsideration with her and I'll talk to her.
Roca: Huh?
Waters: I said file a Motion for Reconsideration with her and I'll talk to her. Roca: Ok.
Waters: Why didn't you call me first?
Roca: Because I didn't know it was late, so I just sent him over and I said, "Just go open it." I didn't know it was beyond the 30 day period. Otherwise, I would have called.
Waters: Yeah.
Roca: It was on May 15th and he wrote in the petition, "I apologize I got this mixed up with another court date in Municipal Court," and then he wrote, "I wish to reopen my case so that I can resolve this matter and make payment." The bitch denied it. That's a pretty good . . . [laughs] . . . I mean it's not a legal defense, but give me a break.[OAEb3;Ex.A¶18.]
"OAEb" refers to the OAE's December 21, 2020 brief in support of the motion. "Ex." Refers to the exhibits attached to the brief.
On June 28, 2012, Rexach filed a petition for reconsideration in the Philadelphia Municipal Court. Respondent became aware that, after June 29, 2012, Segal would no longer be presiding over those types of petitions, and again, she reached out to Waters. On June 29, 2012, the following telephone conversation took place:
Waters: Hey Honey, what's up Babe?
Roca: Do you have Dawn's number?
Waters: Who?
Roca: Dawn Segal.
Waters: uh…
Roca: He [Rexach] just filed for reconsideration. They said she [Segal] does 'em right today. So we need to call her today.
Waters: Oh. Okay. I'll call Dawn right now. All right.
Roca: It's Ian Rexach. She said call Monday and by Monday she [Segal] would have already decided the decision.
Waters: All right. What's his name?
Roca: It's Ian Rexach. R-E-X-A-C-H.
Waters: R-E-X-A-C-H. I'll call her right now.
Roca: And it was a Motion for Reconsideration. All right?
Waters: All right. Bye-bye. Roca: Thank you, Baby.
[OAEb4;Ex.A¶21.]
Thus, when respondent learned that Segal would not be hearing such motions after June 29, 2012, she intervened to prevent her son's motion from being heard by a municipal court judge who was unaware of her pending request for assistance with Waters.
After Segal granted Rexach's motion for reconsideration, Waters placed two calls to respondent, both on July 1, 2012. For the first call, Waters left a voicemail stating: "Angie, it's Joe. Dawn Segal just called me. She just said she took care of that thing. All right. Bye-bye." In the second call, the following conversation took place:
Roca: Hello.
Waters: Angie, it's Joe. How you doin?
Roca: Good. What's up?
Waters: Not much. That thing's taken care of.
Roca: Thank you, Honey. Thanks so much.
Waters: She called me this morning and she said she did it over the weekend. So it's taken care of.
Roca: All right. Cool. Thanks, Baby.
[OAEb4;Ex.A¶26.]
On June 3, 2013, an FBI agent interviewed respondent in connection with the federal government's investigation of Waters. During the interview, when asked whether Philadelphia judges call one another to ask for favors, respondent stated, "we don't do that here at all." Respondent also told the FBI agent that she would never call another judge to request a favor for a family member.
On April 13, 2015, respondent filed an answer in reply to an informal letter of inquiry that was issued by the Judicial Conduct Board, prior to the commencement of the formal charges. In her answer, respondent denied any inappropriate communication with Waters concerning Rexach's case. She stated in her written reply that she contacted Waters only for procedural assistance regarding the case, and denied that Waters contacted, or intended to contact, Segal concerning Rexach's case. She stated, "apparently, Judge Waters contacted Judge Segal. This was without my knowledge and not at my request."
On June 18, 2015, after she was confronted with the FBI's recorded telephone conversations, respondent filed an amended response, admitting that Waters had suggested that he would speak to Segal concerning Rexach's case, and that she contacted Waters, on June 29, 2012, to ask him to request that Segal consider the matter promptly, because Segal would no longer be hearing those types of cases.
Respondent admittedly engaged in inappropriate communication with Waters concerning her son's case; improperly contacted Waters on June 29, 2012 to request that he contact Segal to ensure that Segal heard her son's petition; failed to report the communications she had with Waters to the Judicial Conduct Board or any other authority; and made false statements of material fact in her written reply to the inquiry from the Judicial Conduct Board.
Respondent and the ODC jointly recommended that a suspension of one year and one day would be the appropriate discipline for respondent's misconduct. In mitigation, the ODC noted that respondent admitted to engaging in misconduct and violating the relevant Pennsylvania rules; her misconduct was a singular incident; she presented strong character witnesses who testified on her behalf; she was removed from the bench and deemed ineligible to hold judicial office in the future; and she cooperated with the ODC and consented to discipline. In aggravation, the ODC emphasized that respondent's misconduct occurred while she served as a judge in the Philadelphia Court of Common Pleas; that she initially denied any inappropriate communication between herself and Waters; and that her misconduct involved intervening in the judicial process on behalf of a family member.
Respondent's Affidavit Under Rule 215(d) is attached to Exhibit A.
On April 9, 2019, the Supreme Court of Pennsylvania granted the Joint Petition and suspended respondent for one year and one day. In a January 9, 2020 letter, respondent reported her Pennsylvania suspension to the Disciplinary Review Board, and our office forwarded it to the OAE.
The OAE's brief included Exhibit C, an order from the Supreme Court of Pennsylvania granting Segal's joint petition in support of discipline on consent, and suspending her for one year and one day. Exhibits D and E include press articles about the Waters investigation, confirming that Waters was sentenced in federal court to twenty-four months in prison for his guilty plea to mail fraud and honest services wire fraud. Exhibit F is the Court of Judicial Discipline's order finding Waters a convicted felon and disbarring him as a member of the bar, as well as declaring him ineligible for further judicial office.
In its brief in support of the motion for reciprocal discipline, the OAE asserted that a one-year or eighteen-month suspension was the appropriate quantum of reciprocal discipline for the totality of respondent's misconduct. The OAE maintained that respondent's unethical conduct in Pennsylvania warranted similar discipline in New Jersey; however, because respondent's license to practice law in New Jersey had been revoked, the suspension should be "suspended" and served if and when she applied for readmission to the New Jersey bar. In support of its position, the OAE cited In re Fretz, 222 N.J. 435 (2015); In the Matter of David Eldon Fretz, DRB 14-249 (March 13, 2015) (imposing a deferred, one-year suspension on an attorney whose license had been revoked, as well as prohibiting him from pro hac vice admission in New Jersey). The OAE also relied on additional cases, outlined below, to argue that, based on New Jersey disciplinary precedent, respondent's misconduct warranted a suspension.
The OAE acknowledged, in mitigation, that respondent's conduct occurred more than eight years ago, and that respondent eventually reported her Pennsylvania discipline to the OAE.
In aggravation, the OAE noted that respondent misrepresented the nature of her unethical requests to Waters on two occasions - once to the FBI agent and once to the Pennsylvania Judicial Conduct Board. Citing In re Sicklinger, 228 N.J. 525 (2017); In the Matter of Todd C. Sicklinger, DRB 16-038 (November 2, 2016), the OAE argued that we may consider, in aggravation, attempts to cover up misconduct, even though the cover up occurred after respondent's license to practice law in New Jersey was revoked, because the misconduct itself occurred while respondent had an active license in New Jersey. In Sicklinger, we did not impose discipline for the criminal act, because it had occurred after Sicklinger's license had been revoked; however, we did consider the criminal act in aggravation, as part of a pattern of inappropriate behavior in which Sicklinger had engaged. In the Matter of Todd C. Sicklinger, DRB 16-038 (November 2, 2016) (slip op. at 15-16).
Further, in aggravation, the OAE noted that respondent "embroiled" others and recruited unethical conduct from two additional judges to ensure her son's case would be resolved favorably. Additionally, the OAE argued that, initially, respondent had the opportunity to "come clean regarding her misconduct," but, instead, had misrepresented the nature of her unethical conduct to the FBI and to the Judicial Conduct Board by stating that she would not request a favor for a family member, and that judges in her jurisdiction did not request favors.
On January 19, 2021, the Office of Board Counsel (the OBC) received respondent's reply to the instant motion for reciprocal discipline, wherein respondent stated that she "does not oppose and in fact consents to the Motion for Reciprocal Discipline filed by the Office of Attorney Ethics."
On April 22, 2021, the OBC received a supplemental letter from Marc D. Garfinkle, Esq., counsel for respondent, who argued that "[a]s neither Respondent nor the OAE can point to factors requiring New Jersey to impose non-reciprocal discipline, we strongly urge this board to impose the most similar discipline, to wit, a suspension for a term of one year."
Garfinkle attached to the letter the relevant portions of the Pennsylvania Disciplinary Board's hearing report, concerning witness support for respondent's reinstatement, and arguing that respondent's significant contributions and dedication to the practice of law could warrant a retroactive suspension.
Garfinkle noted that respondent had moved to be reinstated in Pennsylvania, and that we had the discretion to impose discipline against respondent retroactively, based on her outstanding contributions to the community and the profession, so that respondent would be able to apply for reinstatement in New Jersey without delay.
Following our review of the record, we grant the OAE's motion for reciprocal discipline. Pursuant to R. 1:20-14(a)(5), "a final adjudication in another court, agency or tribunal, that an attorney admitted to practice in this state . . . is guilty of unethical conduct in another jurisdiction . . . shall establish conclusively the facts on which it rests for purposes of a disciplinary proceeding in this state." Thus, with respect to motions for reciprocal discipline, "[t]he sole issue to be determined . . . shall be the extent of final discipline to be imposed." R. 1:20-14(b)(3).
In Pennsylvania, the standard of proof in attorney disciplinary matters is that the "[e]vidence is sufficient to prove unprofessional conduct if a preponderance of the evidence establishes the conduct and the proof . . . is clear and satisfactory." Office of Disciplinary Counsel v. Kissel, 442 A.2d 217 (Pa. 1982) (citing In re Berland, 328 A.2d 471 (Pa. 1974)). Moreover, "[t]he conduct may be proven solely by circumstantial evidence." Office of Disciplinary Counsel v. Grigsby, 425 A.2d 730 (Pa. 1981) (citations omitted).
Notably, in her Pennsylvania disciplinary proceedings, respondent admitted both the facts of this case and her violations of the relevant Pennsylvania rules. Moreover, she consented to the quantum of discipline imposed in Pennsylvania.
Reciprocal discipline proceedings in New Jersey are governed by R. 1:20-14(a)(4), which provides in pertinent part:
The Board shall recommend the imposition of the identical action or discipline unless the respondent demonstrates, or the Board finds on the face of the record on which the discipline in another jurisdiction was predicated that it clearly appears that:
(A) the disciplinary or disability order of the foreign jurisdiction was not entered;
(B) the disciplinary or disability order of the foreign jurisdiction does not apply to the respondent;
(C) the disciplinary or disability order of the foreign jurisdiction does not remain in full force and effect as the result of appellate proceedings;
(D)the procedure followed in the foreign disciplinary matter was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(E) the unethical conduct established warrants substantially different discipline.
A review of the record does not reveal any conditions that would fall within the ambit of subparagraphs (A) through (E). We, thus, determine to impose a deferred, one-year suspension, substantially the same quantum of discipline imposed in Pennsylvania.
Specifically, respondent violated New Jersey RPC 3.5(a) by seeking to influence Segal, using Waters as an intermediary, to reopen her son's (Rexach's) case. She exerted this influence by leveraging both her position as a judge and her familiarity with Waters. By instigating and then not reporting to the appropriate authorities either Waters' or Segal's violations of judicial rules, respondent violated RPC 8.3(b). Respondent's request that Waters influence Segal's decision in Rexach's case further demonstrated dishonesty, in violation of RPC 8.4(c). Moreover, by seeking to influence the court case involving her son, and by interfering with Rexach's litigation to influence the favorable decision made by Segal on his behalf, respondent committed conduct that was prejudicial to the administration of justice, in violation of RPC 8.4(d). Finally, as a judge herself at the time, respondent knew that, by asking Waters to intervene in her son's litigation, she was assisting him in conduct that violated the rules of the judiciary, in violation of RPC 8.4(f).
In sum, we find that respondent violated RPC 3.5(a); RPC 8.3(b); RPC 8.4(c); RPC 8.4(d); and RPC 8.4(f). The sole issue left for our determination is the proper quantum of discipline for respondent's misconduct.
Although there is no New Jersey disciplinary precedent directly on point with the facts of this case, and no New Jersey precedent for a violation of either RPC 8.3(b) or RPC 8.4(f), the following case law supports discipline as severe as a recommendation to the Court that respondent be disbarred. In our view, however, the unique facts of respondent's case make clear that the ultimate sanction of disbarment is not warranted.
Although we recommended to the Court that Segal be disbarred, Segal's misconduct was significantly more severe than that of respondent. Segal repeatedly conducted ex parte communications with Waters, and her resulting efforts, in three cases, to covertly favor one party in her courtroom over another, constituted an egregious affront to the administration of justice, diminished confidence in the judiciary, and violated multiple RPCs. Further, Segal's motivation was her own personal, political advancement. As we stated in our decision, in Segal's courtroom, justice was for sale, if the price was right. By contrast, here, respondent's misconduct was limited to one occurrence, and, although reprehensible, was not part of a larger personal or political scheme. In the Matter of Dawn A. Segal, DRB 20-072 (February 11, 2021).
Here, as in Segal, the core of respondent's misconduct is the significant harm she caused to the public perception of a fair and impartial judiciary. In 1984, the Court imposed a significant suspension, seven years (time served), on an attorney who attempted to persuade a witness to testify falsely before a grand jury and, thus, directly impacted the administration of justice. In re Verdiramo, 96 N.J. 183 (1984). The attorney pleaded guilty to influencing a witness, in violation of 18 U.S.C. § 371, and, in accordance with a plea agreement, other charges against the attorney were dismissed. In finding certain conduct unworthy of lawyers, the Court stated:
[p]rofessional misconduct that takes deadly aim at the public-at-large is as grave as the misconduct that victimizes a lawyer's individual clients. Because such a transgression directly subverts and corrupts the administration of justice, it must be ranked among the most egregious of ethical violations. We have not, in the past, been uniform in our approach to appropriate sanctions for serious ethical violations of this kind -- those that involve criminal acts of dishonesty that directly impact the administration of justice. Compare In re Rosen, supra, 88 N.J. 1 [1981] (respondent's conviction of attempted subornation of
perjury resulted in suspension of three years in view of mitigating factors) and In re Mirabelli, 79 N.J. 597 (1979) (respondent's guilty plea to accusation charging bribery warranted three year suspension and not disbarment due to mitigating circumstances) with In re Hughes, 90 N.J. 32 (1982) (respondent's guilty plea to charges of bribing public official and forging public documents warrants disbarment despite mitigating factors). We believe that ethical misconduct of this kind -- involving the commission of crimes that directly poison the well of justice -- is deserving of severe sanctions and would ordinarily require disbarment. See, e.g., In re Hughes, supra, 90 N.J. 32.[In re Verdiramo, 96 N.J. at 187.]
Verdiramo was spared from disbarment, however, because the misconduct underlying his discipline had occurred more than eight years earlier. The Court remarked that "the public interest in proper and prompt discipline is necessarily and irretrievably diluted by the passage of time," and that disbarment would have been "more vindictive than just."
In In re Giordano, 123 N.J. 362 (1991), the Court remarked that crimes of dishonesty touch on an attorney's central trait of character. The Court declared that, when an attorney "participate[s] in criminal conduct designed to subvert fundamental objectives of government, objectives designed to protect the health, safety, and welfare concerns of society, the offense will ordinarily require disbarment." Id. at 370 (citation omitted).
In In re Kornreich, 149 N.J. 346 (1997), the Court, building on both Verdiramo and Giordano, once again underscored that "[d]isbarment is normally the appropriate discipline for attorney misconduct that undermines the integrity of the administration of justice." Id. at 365. In that case, the attorney was involved in a motor vehicle accident in a shopping center parking lot. After the incident, the other driver, Susan Yezzi, exited her vehicle and began to fumble through her purse for her insurance information to exchange with Kornreich. Meanwhile, Kornreich remained sitting in her car, "staring" at Yezzi. After writing down the license plate on Kornreich's car, Yezzi approached the vehicle and confronted Kornreich, who said nothing and continued to stare at her. As Yezzi tried to coax Kornreich out of her car to exchange information, Kornreich "just took off."
Yezzi reported the incident to the police. When the police questioned Kornreich, she denied that she had been involved in an accident but admitted that she had been in the parking lot at the time.
When the police officer returned to Kornreich's home to question her, she again denied having been involved in a car accident. She and her attorney-husband threatened the officer with a lawsuit, if he did not "drop the investigation." Despite Kornreich's denials, she was issued summonses for failure to report a motor vehicle accident and leaving the scene of the accident.
When Yezzi, who was required to appear as a witness at Kornreich's municipal court trial, arrived in the courtroom, she was told that she could leave because the case against Kornreich had been dismissed, and charges would be filed against her former live-in babysitter, Angelique Franson. Prior to Yezzi's arrival, Kornreich's attorney had informed the court that Franson had been driving the car at the time of the accident. His statement to the court was prompted by a detailed story by Kornreich and her husband, both of whom agreed to testify against Franson. Kornreich later denied that she had told her attorney that Franson was driving the car.
Prior to Franson's trial, she called Kornreich for advice. By this time, Franson had moved to the west coast. Although Kornreich told Franson that she did not need to appear, that it was "no big deal," and that "they would not come after [her]," Franson appeared. When Yezzi arrived in the courtroom for Franson's trial, she did not recognize Franson. However, when Kornreich entered the courtroom, Yezzi informed the investigating police officer that Kornreich had been the driver of the car. Consequently, the case against Franson was dismissed. Ultimately, Kornreich pleaded guilty and was accepted into the Pre-Trial Intervention program.
We emphasized in our decision that, as of the date of oral argument, Kornreich continued to deny any wrongdoing or to show any remorse. In assessing the appropriate measure of discipline to impose, we considered two cases that the OAE had cited in support of its request for a six-month suspension: In re Poreda, 139 N.J. 435 (1995), and In re Lunn, 118 N.J. 163 (1990). In Poreda, the attorney received a three-month suspension for fabricating and submitting a motor vehicle insurance card in defense of a charge of driving without insurance. We noted that Kornreich's conduct "was much more serious than attorney Poreda's" and, thus, deserving of a longer term of suspension.
In Lunn, the attorney was suspended for three years for fabricating a certification, on behalf of his deceased wife, to support allegations in a personal injury suit. He then refused to admit, for two years, that he had done so. We noted that Kornreich's conduct was as serious - if not more serious - than Lunn's. We considered, however, that, once caught in a web of lies, Kornreich might have found it difficult to extricate herself. In addition, we believed that Kornreich's character was not unsalvageable, because she was young and potentially capable of learning from her mistakes. A five-member majority, thus, voted to suspend Kornreich for one year.
The Court disagreed with our assessment of Kornreich's mitigation, determining that Kornreich's offense was more serious than the conduct presented in Lunn, and imposed a three-year suspension. In so doing, the Court stressed that the specific subject matter of attorneys' criminal misconduct was not the factor upon which disbarment depends, "but rather the perversion of the justice system by the attorneys." Id. at 368. The Court, however, found compelling mitigation, including Kornreich's "youth and inexperience" at the time of her misconduct, that spared her from the ultimate sanction of disbarment. Id. at 370-72.
Justice Coleman, joined by Chief Justice Poritz, dissented, finding that Kornreich "was dishonest, committed crimes, demonstrated contempt for the administration of justice, and poisoned the well of justice." Id. at 375. The dissenting members of the Court, thus, determined that they would "disbar [Kornreich] because her conduct was so egregious and so inimical to the integrity of the judicial system that any lesser sanction would fail to protect the public." Id. at 376.
The OAE further suggested that we consider cases in which municipal judges or municipal prosecutors were involved in ticket-fixing schemes. The discipline imposed in cases involving such misconduct in municipal court proceedings has ranged from a reprimand to disbarment, depending on the facts of the offense, the presence of other unethical conduct, and the analysis of aggravating and mitigating factors.
In In re DeLucia and In re Terkowitz, 76 N.J. 329 (1978), the Court imposed a one-year suspension on each attorney, who, at the time of their misconduct, were municipal court judges in Rutherford, New Jersey. Id. at 330. Barbara Spencer, Terkowitz's secretary, received a ticket for improperly passing a school bus on her way to work. Id. at 331. Later that day, she informed Terkowitz that she had not seen the school bus because of other traffic. Id. at 331-32. Terkowitz telephoned DeLucia and explained that Spencer had been experiencing physical problems due to her pregnancy, her view had been obstructed and, therefore, she had not seen the school bus before passing it. Id. at 332. DeLucia then contacted the ticketing officer, explained the circumstances, and asked whether he would object if they "took care of it." Ibid. The officer responded that he did not care. Ibid.
In chambers, without anyone appearing before him, DeLucia "personally noted a not guilty plea on the court copy of [Spencer's] summons and entered a judgment of not guilty." Ibid. In the portion of the summons for the witness' testimony, in the absence of a court hearing or any testimony, DeLucia wrote "testimony . . . defendant states view was obstructed by trees . . ." Ibid. Spencer's acquittal was based solely on the information that DeLucia had received from Terkowitz. Ibid.
When the prosecutor's office investigated the Spencer summons, DeLucia arranged for Spencer to prepare an affidavit reciting what had occurred, and to back-date it to the date of the summons, which was the same date that she had conveyed the information to Terkowitz. Id. at 332-33. DeLucia testified before the Advisory Committee on Judicial Conduct that, as to Spencer's affidavit, he had known that he was "arranging for the filing of a false document." Id. at 335.
The Court noted that it had previously denounced ticket-fixing, "with its ramifications of false records, false reports, favoritism, violation of court rules, and cover-up, all of which exist in this case . . . Such conduct compromises the integrity of the judicial process and violates the fundamental principles of impartial justice." Id. at 336.
Although DeLucia resigned his position as municipal court judge, suffered great mental anguish, and did not personally profit from the misconduct, the Court imposed a one-year suspension, stating:
[a] judge who does "favors" with his office is morally an embezzler. He is also a fool, for a judge who plays a "good" fellow for even a few must inevitably be strained with the reputation of a man who can be reached. [citations omitted.]
[Ibid.]
As to Terkowitz, the Court found that he knowingly participated in the improper dismissal of the traffic summons and attempted to conceal the wrongdoing by permitting the preparation of an affidavit with a back-dated acknowledgement and by executing a false jurat. Id. at 338.
In the companion cases of In re Hardt, 72 N.J. 160 (1977) (municipal court judge) and In re Weishoff, 75 N.J. 326 (1978) (municipal prosecutor), Hardt was removed from his position and reprimanded, while Weishoff was suspended for one year for participating in fixing a speeding ticket.
In Hardt, after Muriel Mansmann received a speeding ticket, the return date of the summons was adjourned and rescheduled at the request of her attorney. Id. at 162. When the officer who issued the ticket discovered that his and Mansmann's name had been crossed off the calendar, he assumed that the case had been postponed or that Mansmann had entered a guilty plea, so he left court. Id. at 163.
Later that day, when only Hardt, the court clerk, the deputy clerk, and Weishoff remained in the courtroom, Weishoff called Mansmann's name and simultaneously beckoned the deputy clerk to come forward, as if she were Mansmann. Id. at 163-64. When Hardt asked the deputy clerk how she pleaded, Weishoff whispered to her to reply "not guilty," which she did. Ibid. Hardt then announced that he would deny a continuance and direct a verdict of not guilty. He entered a finding of not guilty on the back of the summons. Id. at 164.
The Court found that Hardt had not known in advance that any fraud or ticket-fixing was about to occur. Ibid. Although, at the hearing before the Court, Hardt had insisted that the entire "affair was a 'farce'" and that they were "simply clowning around," the Court found that Hardt permitted himself to be used and to become part of a ticket-fixing attempt. Id. at 164-65. The Court was not swayed by Hardt's efforts to minimize the seriousness of his misconduct based on his lack of advance knowledge of the plot, because of "his incorrect completion of the summons, his signature and stamp of approval thereon, his failure thereafter to do anything to correct or rectify it, his knowledge that [the deputy clerk] stood before him --- not Muriel Mansmann, and his awareness that the Prosecutor's statements were inaccurate." Id. at 165. In addition, the Court considered Hardt's knowledge that the defendant's failure to appear did not justify a finding of not guilty. Ibid.
In imposing a reprimand, the Court considered that the transgression had constituted an aberrational act and was not part of a course of conduct; Hardt had an otherwise unblemished record; and, as a member of the bar, maintained a general reputation for integrity and high character. Id. at 168-69.
As to Weishoff, the Court determined that he was a knowing participant to the improper disposition of the traffic ticket, and found not credible his explanation that they were "just fooling around." Id. at 330. Although the Court held that Weishoff's behavior involved misrepresentation and conduct prejudicial to the administration of justice, the Court was satisfied that Weishoff sought no personal profit and thought he was doing someone a "favor." Id. at 331.
The Court rejected Weishoff's argument that, because he had resigned as municipal prosecutor, he should be reprimanded, like Hardt. Id. at 331-32. The Court distinguished the two cases, finding that Hardt had "suffered the ignominy of being removed from his judgeship for misconduct in office" and that, by virtue of such removal, could not thereafter hold judicial office. Id. at 331.
The Court found applicable to municipal prosecutors the following principles enunciated in In re Mattera, 34 N.J. 259, 275-76 (1961): "[j]ustice is the right of all men and private property of none. The judge holds this common right in trust, to administer it with an even hand in accordance with the law. A judge who does 'favors' with his office is morally an embezzler." In imposing a one-year suspension, the Court determined that Weishoff's conduct could not be condoned, that the improper disposition of a traffic ticket undermines the judicial process, and that "[p]articipation in such disposition by the municipal prosecutor makes it that much more grievous." Id. at 331-32.
In the companion cases of In re Spitalnick, 63 N.J. 429 (1973), and In re Sgro, 63 N.J. 538 (1973), municipal judges received two-year and six-month suspensions, respectively, for their involvement in fixing a ticket for driving while intoxicated (DWI).
Spitalnick approached Sgro about dismissing a DWI ticket for his former client. Id. at 431. Spitalnick marked the ticket "not guilty" and noted on it that the defendant was under medical treatment at the time of the DWI. Ibid. He did nothing to verify the defendant's excuse to him about his medical condition. Ibid. Sgro dismissed the ticket. Ibid. In imposing discipline, the Court considered mitigating circumstances, including Spitalnick's prior clean record, voluntary admission of guilt, ultimate cooperation with law enforcement, lack of personal gain, and the fact that it was a single incident in a "wrongheaded and highly improper attempt to 'aid' a despondent client." Id. at 432. In imposing a two-year suspension, the Court wrote:
[r]espondent's activities, however, hold a deeper significance in that they expose the probity of the Bench and Bar to question. This Court cannot allow the integrity of the judicial process to be compromised in any way by a member of either Bench or Bar. This is especially so where, as here, the particulars demonstrate that the proper channels of justice had been diverted. We must guard not only against the spectacle of justice corrupted in one instance, but against the subversion of confidence in the system itself. A community without certainty in the true administration of justice is a community without justice.
Nowhere can the community be more sensitive to the regularities -- and irregularities -- of judicial administration than at the local level. While on the grand scale of events a traffic violation may be of small significance, the corruption of judicial administration of a Municipal Court is of paramount importance. Such
conduct, visible and apparent to the community, destroys the trust and confidence in our institutions upon which our entire governmental structure is predicated. We cannot and will not tolerate members of the profession subverting judicial integrity at any level, for the damage is irreparable.
[Ibid.]
As to Sgro (six-month suspension), the Court considered that he had resigned his position as a municipal court judge; that, although he knew that dismissing the ticket without the appropriate medical information was improper, he did so relying on Spitalnick, who had considerable experience and had persuaded him to act improperly; that he received no financial gain; and that he had a good reputation in the community. In re Sgro, 63 N.J at 539.
More recently, the Court has disciplined multiple municipal court judges for fixing tickets. In In re Molina, 216 N.J. 551 (2014), the attorney, who was the chief judge of the Jersey City Municipal Court, adjudicated nine parking tickets issued to her significant other. Molina had entered a guilty plea to the third-degree crime of tampering with public records and the fourth-degree crime of falsifying records. In the Matter of Wanda Molina, DRB 13-097 (November 7, 2013) (slip op. at 1). Molina dismissed the tickets, sometimes writing "Emergency" on them before doing so, despite knowing that no emergency had existed. Id. at 1-2. The purpose of her actions was to avoid her significant other's payment of fines to the city. Id. at 3. Molina conceded that, as the chief judge, she should have requested a change of venue, because of the conflict, or ensured that the tickets were paid. Ibid.
Molina presented significant mitigation, both at her sentencing hearing and before us: she deeply regretted and was embarrassed by her misconduct; for most of her life, she had served her community and helped women and minorities; she intended to compensate the city for the improperly dismissed tickets; she had no criminal history; her conduct was unlikely to recur; she resigned from her position as chief judge; she cooperated with law enforcement; she accepted responsibility for her conduct; she submitted eighteen character letters on her behalf; and she apologized publicly for her misconduct. Id. at 3-4.
In imposing the criminal sentence, the judge in Molina remarked that judges should be held to the highest standards to maintain the integrity of the judicial system and the public's faith in the system, and cited the need to deter Molina and others from engaging in similar conduct. Id. at 5. The judge sentenced Molina to three years' probation, "364 [days] in the Bergen County Jail as a reverse split;" ordered her to perform 500 hours of community service; prohibited her from holding public employment; and directed her to pay restitution and penalties. Id. at 5.
In Molina, we balanced the fact that suspensions were imposed on other municipal court judges who had been involved in only one instance of ticket fixing, who received no personal benefit from their conduct, and who forfeited their positions, against Molina's compelling mitigation and her lack of a disciplinary history. We determined to impose a six-month suspension. Id. at 20. The Court agreed with that measure of discipline.
In In re Sica, 222 N.J. 23 (2015), a default matter, a Jersey City municipal court judge who disposed of tickets for her employer was found guilty of violating RPC 8.4(b), (c), and (d). We found that Sica's adjudication of her employer's three traffic tickets had financial and non-financial consequences attached to it and that, in adjudicating the tickets, she had violated N.J.S.A. 2C:30-2(a).
Sica had performed legal work for Victor Sison, Esq. (whose disciplinary case is discussed below), a fellow municipal court judge, on a per diem basis. In the Matter of Pauline E. Sica, DRB 14-301 (March 26, 2015) (slip op. at 8-9). We, thus, reasoned that Sica's conduct was aimed at self-benefit, because she disposed of three tickets for her employer, with whom she wished to maintain a professional relationship. Id. at 12.
Unlike some of the other cases, neither Molina nor Sica embroiled others in their ticket-fixing schemes. Nevertheless, unlike Molina, Sica advanced no mitigating circumstances. In addition, she showed no contrition or remorse for her acts. During the criminal proceedings, she stated that, although there was no legitimate reason to waive the fine, "that's the culture." Furthermore, her letter to the OAE did not acknowledge any wrongdoing on her part, but implied that she had been pursued unfairly, since no action had been taken against her employer. Ibid.
In addition, Sica failed to reply to the grievance and then permitted the matter to proceed as a default, an aggravating factor under In re Kivler, 193 N.J. 332, 342 (2008). Finding that the aggravating factors warranted discipline harsher than that imposed in Molina, we determined to impose a one-year suspension, retroactive to the effective date of Sica's temporary suspension, which had been imposed for failure to cooperate with the OAE's investigation. Id. at 12-13.
In In re Sison, 227 N.J. 138 (2016), the attorney, who was a part-time Jersey City municipal court judge and employed Sica in his law firm, received a three-month suspension for his part in the ticket fixing schemes underlying the Molina and Sica matters, above. He was found guilty of violating RPC 8.4(b). In the Matter of Victor G. Sison, DRB 15-333 (July 20, 2016) (slip op. at 18). By way of a plea agreement with the Attorney General's Office, Sison, who had been charged with second-degree official misconduct, was given credit for his cooperation with both law enforcement and the OAE, and was admitted into the pre-trial intervention program. Id. at 3-4. Sison approached Molina and Sica to secure the preferential treatment, including dismissal, of tickets issued to him, his wife, and his son. Id. at 4-5.
We determined that, except for his inconsistent testimony during the ethics hearing, Sison's matter did not include the aggravating factors present in Sica. Id. at 24. Like Molina, Sison presented significant mitigation for consideration: he was a relatively new judge at the time of his misconduct; his misconduct involved only four tickets; he had not tampered with public records; he was regretful and contrite; he cooperated with law enforcement; he was seventy-two years old at the time discipline was imposed; and he submitted compelling character evidence on his behalf. Id. at 24.
In In re Boylan, 162 N.J. 289 (2000), a Jersey City municipal court judge was disbarred for a scheme to defraud the city of money by reducing traffic violation fines and penalties of female defendants in exchange for sexual favors. Id. at 292. He coached the defendants to lie in open court about the circumstances of their tickets and penalties. Ibid. Boylan acknowledged that the city lost more than $10,000 as a result of the scheme. Ibid. He entered a guilty plea to the use of the mails to perpetrate the fraud, was sentenced to thirty months in prison and three years' probation, and was ordered to make restitution to Jersey City. Ibid.
Citing In re Conway, 107 N.J. 168 (1987), the Court reasoned that "[c]ertain types of ethical violations are, by their very nature, so patently offensive to the elementary standards of a lawyer's professional duty that they per se warrant disbarment." Id. at 293. Moreover, the Court reiterated that it has "consistently subjected attorneys who commit acts of serious misconduct while serving in public office to stringent discipline, normally disbarment." Ibid. [citations omitted]. The Court continued,
[t]herefore, it is appropriate to discipline an attorney for conduct as a judge if the conduct itself so corrupts the judicial process or evidences a lack of the character and integrity that are necessary in an attorney. Conduct by a judge may require disbarment if that conduct demonstrates such untrustworthiness, dishonesty or lack of integrity that the public must be protected from such a person as a lawyer.
[Ibid.]
Given Boylan's misconduct, the Court found that "the impugnment of the integrity of the legal system" was "[s]o deep and so profound," that disbarment was the only appropriate penalty.
More recently, in In re Mott, 231 N.J. 22 (2017), the Court imposed a six-month suspension on a municipal prosecutor who improperly dismissed a speeding ticket for an employee of her family farm, failed to disclose her conflict of interest to the court, and misrepresented to the court, both verbally and in writing, that the dismissal was due to a problem with discovery.
Also, in In the Matter of Richard B. Thompson, DRB 19-062 (September 17, 2019), we recommended the disbarment of an attorney who, during a five-year period, while serving in public office as a municipal court judge in nine jurisdictions, routinely suspended mandatory motor vehicle fines in cases and, instead, substituted phony, baseless contempt of court charges in their place, knowing that his criminal scheme would steer one hundred percent of the contempt proceeds to the towns over which he presided. If challenged by a defendant, he often would revert contempt charges to mandatory fines, but, on one occasion, threatened the defendant with jail time; he also improperly applied defendants' bail money toward the phony contempt charges, without notice or due process for those defendants. The attorney admitted that the purpose of his criminal scheme was to use his authority, in his public office, to direct maximum revenue to the towns where he presided as a municipal court judge, and that, to conceal his wrongdoing, he typically falsified the contempt charges outside the presence of the defendants and their counsel. He also admitted that he continued his scheme, even after a March 2014 meeting with his superiors to discuss his contempt of court practices, by assessing smaller phony contempt fines, thus continuing to steer funds to his preferred jurisdictions, until his suspension from the bench. The Court agreed with us, and disbarred Thompson. In re Thompson, 240 N.J. 263 (2020).
During oral argument before us, respondent's counsel noted that respondent had been reinstated to the Pennsylvania bar the prior week. Respondent's counsel also pointed out respondent's "lifetime of public service" and positive character references in support of her request that we consider "who she is and not what she did."
In this case, respondent's misconduct was not as egregious as those matters where we previously have recommended disbarment to the Court. Respondent did not conduct an ongoing scheme, like in Thompson, nor did she commit a crime, like in Boylan. Here, respondent's actions were more aligned with the attorneys in the ticket-fixing cases: Hardt (reprimand); Molina (six-month suspension); Mott (six-month suspension); Sgro (six-month suspension); Weishoff (one-year suspension); DeLucia and Terkowitz (one-year suspensions, respectively); and Spitalnick (two-year suspension).
In crafting the appropriate discipline, however, we also consider aggravating and mitigating factors. As to mitigation, respondent eventually admitted to the misconduct and consented to discipline; she presented strong character witnesses; she was removed from the bench; and she is now ineligible to hold judicial office in the future. Further, a significant passage of time has elapsed between respondent's misconduct and the imposition of discipline.
As to aggravation, respondent's admission of her misconduct did not occur until after she was confronted with her recorded conversations with Waters; she was a judge in the Philadelphia Court of Common Pleas at the time of her misconduct; and she committed the instant misconduct to benefit her son.
On balance, a one-year suspension is required to protect the public and preserve confidence in the New Jersey bar. The suspension will be deferred and imposed if and when respondent is reinstated to the practice of law in New Jersey. There is no basis to grant respondent's request that the suspension be imposed retroactively. We further determine to prohibit respondent from seeking pro hac vice admission before any New Jersey court or tribunal until further Order of the Court.
Chair Gallipoli voted to recommend to the Court respondent's disbarment.
Member Boyer was absent.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.
Disciplinary Review Board
Timothy M. Ellis Acting Chief Counsel