Opinion
DRB 20-127
03-23-2021
In the Matter of Liliana Silebi An Attorney at Law
HoeChin Kim appeared on behalf of the Office of Attorney Ethics. Peter R. Willis appeared on behalf of respondent. Johanna Barba Jones Chief Counsel
Argued: October 15, 2020
District Docket No. XIV-2018-0546E
HoeChin Kim appeared on behalf of the Office of Attorney Ethics.
Peter R. Willis appeared on behalf of respondent.
Johanna Barba Jones 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 on a disciplinary stipulation between the Office of Attorney Ethics (OAE) and respondent. Respondent stipulated to having violated RPC 3.3(a)(1) (making a false statement of material fact or law to a tribunal); RPC 3.3(a)(4) (offering evidence that a lawyer knows to be false); RPC 8.1(a) (making a false statement of material fact in a disciplinary matter); RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice).
For the reasons set forth below, we determine to impose a three-year suspension.
Respondent earned admission to the New Jersey bar in 1992 and to the New York bar in 1993. On September 26, 2018, the Court determined that respondent had misused her judicial office to advance the private interests of a litigant; had proffered false statements, under oath, to the Advisory Committee on Judicial Conduct (ACJC); and had submitted altered telephone records to the ACJC in an attempt to bolster her false statements. The Court, thus, ordered that respondent be removed from judicial office and permanently barred her from holding judicial office in New Jersey. The Court also referred respondent to the OAE.
In 2009, respondent's New York license was suspended for failure to register and pay that state's required attorney assessment.
Respondent formerly was known as Liliana S. DeAvila-Silebi.
Effective February 25, 2019, respondent retired from the practice of law in New Jersey.
Respondent and the OAE entered into a disciplinary stipulation, dated April 27, 2020, which sets forth the following facts in support of respondent's admitted ethics violations.
The misconduct underlying respondent's removal from office led to testimony under oath at her April 26, 2017 formal hearing before the ACJC, resulting in the October 24, 2017 ACJC presentment report, and at her hearing before the special panel appointed by the Court, resulting in the June 19, 2018 report.
In 2008, respondent was sworn in as a Judge of the Superior Court of the State of New Jersey and, after briefly serving in the Civil Division, Bergen Vicinage, was appointed, in 2010, as Presiding Judge (P.J.) of the Criminal Division, Bergen Vicinage. The Bergen County Assignment Judge opined that she "served with diligence" and asserted that the attorneys appearing before her in her role as P.J. "praised her performance, work ethic and reputation for integrity."
Pursuant to respondent's request for a transfer, she was reassigned to the Superior Court, Civil Division, Passaic Vicinage, effective May 1, 2015. The Bergen County Assignment Judge obtained permission for respondent to delay her transfer to Passaic County until May 6, 2015, because, on May 1, 2015, she had a full sentencing calendar scheduled in the Bergen Vicinage. As of May 8, 2015, respondent was conducting hearings on the record in the Civil Division of the Passaic Vicinage.
From February to May 2014, Vivianne Chermont had interned for respondent in the Bergen Vicinage. Chermont and Franklin Ferrer are the divorced parents of a child; their divorce matter and ongoing custody issues were venued in the Superior Court of New Jersey, Essex Vicinage, Chancery Division, Family Part. On April 12, 2013, the Hon. Michael R. Casale, J.S.C. (now retired), entered an order of custody establishing parenting time for the parties. Chermont was granted parenting time during the week; Ferrer was granted parenting time every weekend from Friday night to Monday morning; and both parents received two consecutive weeks during the summer. In December 2013, Judge Casale entered a judgment of divorce (JOD), which modified the custody order, granted Ferrer parenting time every Wednesday night and every other weekend from Friday evening to Monday morning, and ordered the parties to alternate holidays by following an agreed-upon schedule. Chermont conceded that the parties never agreed to a holiday schedule, and that no order provided such a schedule.
Judge Casale asserted that it was impossible to tell from the JOD which parent was entitled to parenting time on which weekend, including the weekend of May 8-10, 2015, which was Mother's Day weekend. On Friday, May 8, 2015, at about 8:30 p.m., Chermont arrived at the Fort Lee Police Department (FLPD) with the JOD and two court orders, alleged that the child had not been returned to her home as required, and provided the address of Ferrer's mother, where Ferrer was living and the child was staying. Police Officer Stephen Dominick was dispatched to the address to check on the child, observed the home to be in order, and determined that the child was "fine." When Officer Dominick telephoned Ferrer, he informed the officer that he was using his two weeks of consecutive parenting time. In light of these conflicting statements, and the absence of a definitive order identifying which parent was entitled to custody of the child that weekend, the FLPD determined not to intervene. Officer Dominick returned to the police department and informed Chermont that the child was "fine," refused her request to remove the child from his grandmother's home, and directed her to resolve the issue in court.
On Saturday, May 9, 2015, at 8:50 a.m., respondent telephoned the FLPD using her personal cell phone and spoke with Sgt. Michael Ferraro on a recorded telephone line. Respondent identified herself as a judge and informed Sgt. Ferraro that she
got a phone call from an attorney involving an emergent matter . . . involving his client who is supposed to have the child this weekend and the husband didn't take the child to school the whole week . . . and therefore . . . they filed this emergent application. So, I'm on emergent duty. And I saw the court order and she is supposed to have the child this weekend . . . based on the court order. I just don't want her going to the house by herself to retrieve the child. Is there any way that someone can go with her . . . or somebody can just call the house and say . . . the child has to come outside because she went there and they won't open the door and I just don't want any . . . altercations . . . .
[S§B¶23 (emphasis added).],
Despite respondent's claim that she received a phone call from an attorney, Chermont conceded that she was unrepresented at this time.
"S" refers to the April 27, 2020 stipulation of facts.
Sgt. Ferrero previously had not received such a telephone call from a Superior Court Judge; determined that "this must be pretty important;" and instructed respondent to direct the client to report to the police department, where he would arrange for an escort. Sgt. Ferrero interpreted respondent's request to mean "the child was at the residence of the father's and . . . there was a court order that . . . the mother was required to have the child and we were to assist to make that happen." When queried by Sgt. Ferraro regarding where respondent was assigned, she replied that she was in Bergen but also was assigned to Passaic. Respondent informed Sgt. Ferrero that she would tell the attorney to meet him at the police department.
Officer Anthony Kim and another officer accompanied Chermont, who did not bring a copy of the referenced custody order, to Ferrer's mother's home. The officers removed the child from the home, returned the child and Chermont to the police department, and Chermont then left with the child. When Ferrer arrived at the police department about two hours later, he was furious and demanded an explanation for the removal of the child. Upon learning that the removal was pursuant to a judge's order, Ferrer requested the name of the judge who had ordered the removal. Ferrer executed an affidavit, asserting that he was exercising his right to two weeks of vacation time with the child, and provided the FLPD with copies of several court orders and the JOD, which included the vacation time schedule.
Ferrer also filed a motion for additional parenting time to make up for the weekend in May. In support of his motion, Ferrer included a police report that cited respondent's name and participation in the May 9, 2015 incident. At the August 7, 2015 hearing on that motion, when Judge Casale questioned Jared A. Geist, Chermont's attorney, regarding respondent's involvement in the incident, Geist replied that respondent was a "personal friend" of Chermont. After Judge Casale "expressed alarm" at this declaration, Geist clarified that respondent was a "character reference" for Chermont. In support of a subsequent motion to transfer venue, Chermont claimed that Geist had been "mistaken," and that she did not have a "personal relationship" with respondent.
Judge Casale notified the Hon. Ernest M. Caposela, Assignment Judge for the Passaic Vicinage, of respondent's May 9, 2015 communication with the FLPD, and Judge Caposela referred the matter to the ACJC for investigation. Although respondent did not testify before the special panel, transcripts of her testimony from three prior interviews were admitted into evidence. Those interviews revealed respondent's varying accounts of the events, riddled with inconsistencies, as follows.
First, during the ACJC's November 5, 2015 investigation, and while under oath, respondent asserted that she had not been assigned to the Passaic Vicinage until May 11, 2015 and was in transition between May 2 and May 11, 2015. She further claimed that, on May 9, 2015, she had properly called the FLPD in response to a telephone call she had received that morning: "[S]omebody called me and then I, in turn, must have called the [FLPD] with whatever decision was made on the emergent application." Respondent stated that she did not know whether the person who had called her was the FLPD, an attorney, or the sheriff's department. Respondent later claimed that the local police department, an attorney, the prosecutor's office, or an individual from a sheriff's department had called her, and the telephone conversation itself constituted an emergent application concerning a Mother's Day weekend parenting time dispute. Respondent said that the application was emergent because it concerned Mother's Day and "tickets or . . . trips or whatever . . ." and "so they couldn't just wait until Monday to go to court." She claimed that someone read a court order to her, which clearly stated that the child's mother was to have custody that weekend. Respondent denied any knowledge that the telephone call concerned a pending matter in the Essex Vicinage and claimed that, if she had known, that "would have been the end of the phone call." She maintained that, even when she was not on emergent duty, she received telephone calls "all the time," because many police departments, attorneys, and the Sheriff's Office had her personal phone number.
Respondent denied knowing Chermont, and when respondent was informed that Chermont claimed she previously had volunteered in respondent's chambers, respondent asserted that she did not personally hire the interns and "half the time she did not know their names."
When the investigators played the recording of respondent's telephone call to the FLPD, she stated that the recording confirmed that an attorney had contacted her and read her the court order, but asserted that she "misspoke" when she informed the FLPD that she actually had seen the court order.
Next, during the ACJC's May 11, 2016 informal conference, respondent reiterated that, until May 11, 2015, she had been in transition between the Bergen and Passaic Vicinages. She again denied having a personal relationship with Chermont, although she stated that "she wouldn't be surprised" if Chermont had been her intern.
Further, respondent claimed that her May 9, 2015 telephone call to the FLPD was triggered by a telephone call from a male attorney, whose name she could not remember. Respondent clarified that, although she initially stated that the attorney said "this is the [phone] number that I got from the sheriff's department," she actually "just assumed" the attorney acquired her phone number from the prosecutor's office, sheriff's department, or the local police department. Respondent claimed that the attorney read an order to her, but never said it concerned a pending matter in the Essex Vicinage, and that, based on the order, "it was clear . . . that the mother needed to have custody." She remarked that the attorney was concerned about the child's well-being, and "mentioned . . . there was some kind of altercation, there was [sic] problems with the child coming out from the home."
Respondent initially stated that the attorney never informed her that Chermont had contacted the FLPD on May 8, 2015. She then clarified that she understood the attorney's statement to mean that Chermont had engaged the police on the same day the attorney telephoned her, but later realized, upon reading the police report, that Chermont had contacted the police on May 8, 2015. Respondent claimed that when she answered the May 9, 2015 emergent telephone call, she believed she was assisting a fellow judge and ensuring that, if the custody order was enforced, the child would not be exposed to any violence.
Finally, during the ACJC's April 26, 2017 formal hearing, respondent testified that, although she had not been designated as the on-call emergent judge when she served as the P.J., attorneys often called her directly regarding urgent matters, such as setting bail, entering orders in domestic violence cases, or permitting an inmate to leave jail to attend a funeral. She acknowledged, however, that she was not on the emergent duty schedule in the Essex, Bergen, or Passaic Vicinages during the week of May 4-11, 2015.
Respondent denied having referred Chermont to the New Jersey Judiciary; having reviewed her internship application; having interviewed her for the position; having seen her in the courtroom; or having spoken with her mother on May 9, 2015. Indeed, respondent denied any recollection of Chermont at all, asserting that "the very, very first time that [she] heard intern and the word Chermont" was during her November 2015 ACJC staff interview.
Respondent further denied assisting "a former intern," on May 9, 2015 and admitted that, although she took notes during the emergent May 9, 2015 telephone call, she had discarded them. She denied querying the caller as to where the case was venued; which judge signed the order; how the caller obtained her phone number; and whether the caller had attempted to contact another judge prior to calling her. She claimed that she handled the matter because the caller had informed her that the child was in Bergen County. She admitted that the caller never filed an emergent application, but she testified that she had to inform the FLPD that it was "an emergent application because if they don't have the resources or the manpower to do it, they're entitled to tell me that and then I may have to take alternative action." She further admitted that she never saw a court order prior to contacting the police, but knew that the caller read from an order, "because we all know [how] court orders read." Respondent believed that the caller had read from the April 12, 2013 court order, but, when reminded that the order granted the father weekend parenting time, she replied that she "was concerned that the mother might go back there because she had not seen the child for the whole week and . . . the matter was escalating and . . . there was a potential for violence." Although respondent had reviewed all the orders in the Ferrer/Chermont case file, she continued to express confusion regarding the parenting time schedule that was in effect on May 9, 2015.
The ACJC determined that respondent's explanation that she destroyed her notes because of lack of space in her new Passaic Vicinage chambers was "incredible," because she had moved to her new chambers in Passaic on May 4, 2015, and any notes pertaining to an "emergent telephone call" on May 9, 2015 would have remained intact.
After Chermont testified before the ACJC, respondent revealed for the first time that, during the May 9, 2015 telephone call, the "attorney" was sending her concurrent text messages. She explained that the text messages supported her instruction to the FLPD to assist Chermont because they
confirmed for me that the child had been with the father the weekend of May 1st, May 2nd, and May 3rd. So according to the court order, he should have returned the child that Monday on May 4th to school, but he
didn't. And now it was going into a second consecutive weekend that the was going to have the child. And according to the court order, he only gets the child for a whole week or during the week, Monday through Friday, in the summertime. But during the school year he only gets the child every other weekend
[S§B¶73.]
Respondent further asserted that the child's absence from school for a week raised a domestic violence concern between the parties, and that her focus then shifted from enforcing parenting time to "the fact that the child was taken," that the mother "didn't know where the child was for this whole week," and that he was "not in school." Respondent contended that her intervention was warranted, pursuant to the Prevention of Domestic Violence Act, because a "judge has the responsibility to act . . . to ensure the safety of everyone and that's what I was doing." Although respondent initially claimed to have intervened in the Chermont matter to enforce another judge's order, and later claimed that her purpose was to prevent potential domestic violence, the special panel found that her "sole motive in making the May 9, 2015 phone call to [the] FLPD was to use her judicial office to assure that Chermont, her former intern and someone with whom respondent shared more than twenty communications during the preceding three months, had custody of the child for Mother's Day weekend." Respondent never disclosed her May 9, 2015 FLPD telephone call to anyone until Judge Caposela asked to speak with her, in August 2015.
Chermont's testimony throughout the ACJC formal hearing, however, focused on her belief that she was entitled to parenting time during the weekend of May 9, 2015 because of the Mother's Day holiday, not because of missed parenting time or daycare (school).
By presentment dated October 24, 2017, the ACJC determined that respondent had misused her judicial office, had misrepresented to the FLPD the material facts and circumstances underlying her intercession on behalf of a litigant, and was dishonest "in all material aspects" when testifying before the ACJC. Specifically, the ACJC concluded that respondent was not credible, because the redacted telephone records which respondent initially provided revealed that the telephone call to respondent originated from Chermont's cell phone. The ACJC was unable to obtain a complete and unredacted version of respondent's cell phone records. The ACJC further determined that there was no evidence to support respondent's concern for domestic violence between Chermont and Ferrer and that respondent was not assigned to emergent duty over the weekend in question. Finally, respondent's failure to confirm any information from the undetermined caller (Chermont, or someone else) during the May 9, 2015 telephone call; failure to retain notes; failure to cite any order; and failure to memorialize her decision in the Chermont matter, resulting in a benefit to Chermont, in conjunction with her misrepresentations to the FLPD, established her abuse of judicial office. Accordingly, the ACJC recommended respondent's removal from judicial office for her violations of Canon 1, Rule 1.1, and Canon 2, Rules 2.1 and 2.3(a) of the Code of Judicial Conduct.
Canon 1 provides: "An independent and impartial judiciary is indispensable to justice. A judge therefore shall uphold and should promote the independence, integrity and impartiality of the judiciary." Rule 1.1 provides: "A judge shall participate in establishing, maintaining and enforcing, and shall personally observe, high standards of conduct so that the integrity, impartiality and independence of the judiciary is preserved. This Code shall be construed and applied to further these objectives." Canon 2 provides: "A judge shall avoid impropriety and the appearance of impropriety." Rule 2.1 provides: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Rule 2.3(a) provides: "A judge shall not lend the prestige of judicial office to advance the personal or economic interest of the judge or others, or allow others to do so."
On November 9, 2017, the Supreme Court issued an Order to Show Cause why respondent should not be removed from office as set forth in the complaint for removal, and appointed a three-judge special panel to conduct a hearing, take evidence, and report its findings to the Court.
The special panel held a six-day hearing and issued a June 19, 2018 report, determining, beyond a reasonable doubt, that respondent should be removed from office. Specifically, the panel found that respondent had made several misrepresentations to the FLPD, including that she was on emergent duty; that she had a responsibility to perform judicial duties in any vicinage besides Passaic on May 9, 2015; and that she had no knowledge of Chermont, their relationship, and their communications. The panel found that respondent had not seen a court order in Chermont's case, and that there was no "emergent application." The ACJC prosecuting attorney had obtained Chermont's cell phone records via subpoena, which revealed that, between February 2 and May 9, 2015, twenty-four text messages and telephone calls had occurred between Chermont's and respondent's cell phones. On February 25, 2015, a telephone call from respondent to Chermont's phone lasted fifty minutes. The evidence clearly supported the fact that respondent knew Chermont. In fact, Chermont's internship application and related paperwork demonstrated that respondent had referred her to the Judiciary, and additional evidence confirmed their continued and frequent communication after the internship concluded, and demonstrated that respondent's version of the events on May 9, 2015 were "a complete fabrication."
On May 8, 2015, Chermont texted respondent at 5:47 p.m. and, fewer than fifteen minutes after Chermont's unsuccessful attempt to direct the FLPD to remove the child from his grandmother's home, called respondent's cell phone at 8:45 p.m. On the morning of May 9, 2015, respondent placed four telephone calls to Chermont's cell phone: 8:38 a.m. (one minute); 8:39 a.m. (nine minutes); 8:53 a.m. (one minute); and 11:44 a.m. (three minutes).
On May 9, 2015, respondent called the FLPD at 8:50 a.m. Her cell phone bills that she provided to the special panel prior to the hearing showed that, on the morning of May 9, 2015, a telephone call was made to respondent at 8:36 a.m., and then three subsequent telephone calls were made to Chermont's phone between 8:38 a.m. and 8:53 a.m., which coincided with the calls on Chermont's bill. Notably, a record of the 11:44 a.m. telephone call did not appear on the bills that respondent provided, but the bills that the Attorney General subpoenaed directly from the cell phone carrier revealed that telephone call from respondent to Chermont.
Accordingly, when the special panel compared the bills that respondent had provided to the bills obtained via subpoena, it concluded that "some alteration" had occurred in the bills respondent produced. The special panel determined that the phone records established that respondent and Chermont were in frequent communication during the months prior to the May 9, 2015 telephone call to the FLPD. The panel determined that respondent made false statements to Sgt. Ferraro that induced the police to act on behalf of Chermont, and she then repeated those false statements before the ACJC. The panel further concluded that respondent never received a telephone call from an "attorney" whose "emergent application" suggested that there was a potential "altercation" between two parents which may have resulted in harm to the child.
In mitigation, the panel recognized respondent's excellent reputation and her lengthy years at the bar with no ethics history. The panel found that respondent's misconduct on May 9, 2015 and her continued misrepresentations throughout the proceedings before the ACJC, however, justified her removal from office.
The special panel determined that respondent violated Canon 1, Rule 1.1, and Canon 2, Rules 2.1 and 2.3(a) of the Code of Judicial Conduct beyond a reasonable doubt, and, based on the violations, the panel recommended respondent's removal.
By Order dated September 26, 2018, the Court noted that respondent had waived her right to appear before the Court to contest the ACJC presentment and report, ordered her removal from judicial office, and referred the matter to the OAE.
In reply to the OAE's request for an explanation of the facts, respondent, through counsel, proffered a written response admitting that she had misrepresented "facts to the investigators, the Committee and the Judges of the Appellate Court during the investigation and hearings in this matter." Respondent took full responsibility for her misconduct and asserted that she had been suffering from medical issues that had impeded her judgment during the time of her misconduct. She admitted that she had received Chermont's telephone calls and texts in 2015, and that she had contacted the FLPD to assist Chermont. She further admitted that she knew Chermont, who had been her intern; that it had been improper for her to interfere in Chermont's custody matter; and that she acted improperly when she misrepresented evidence proffered during the judicial hearings. She expressed regret for not being "totally honest from the beginning" and described her misconduct as "completely out of character for her." Respondent claimed that her misconduct resulted in the destruction of her family, career, and professional life in public service.
Respondent explained that, beginning in 2015, she suffered acute bouts of anxiety, depression, and skin inflammations, requiring intravenous infusions in order to repair her adrenal glands, but that she continued to work through severe exhaustion and depression because she did not want her health condition to become public. She is slowly recovering from her health issues, including adverse reactions to medications that she asserted had affected her health and judgment. She did not present evidence of her illness throughout the proceedings, because she did not want her family to be concerned, and because she may have been seen as medically unfit to serve as a judge. She claimed that this was another example of how her poor health affected her judgment.
Respondent maintained that she had served as a law clerk, assistant prosecutor, and as a judge, for a total of twenty-three years of public service. She volunteered, and continues her service, at Several Sources Shelter and Our Lady of Good Counsel Homes, shelters for homeless mothers and babies. In addition, she volunteers at the Hackensack Medical Center Pediatric Unit and has served as a foster parent for children from abused homes. She is extremely remorseful for her aberrant misconduct and claimed to have resigned from the bench.
Although respondent claimed that she resigned from the bench, on September 26, 2018, the Court issued an Order removing her from judicial office.
Based on the above facts, respondent stipulated to having violated RPC 3.3(a)(1); RPC 3.3(a)(4); RPC 8.1(a); RPC 8.4(c); and RPC 8.4(d).
The OAE urged that respondent be suspended for three years, relying primarily on In re Samay, 175 N.J. 438 (2003) to support its recommendation. In Samay, the Court imposed a three-year suspension, on a motion for reciprocal discipline, following an attorney's removal from the bench as a municipal court judge. Specifically, Samay used his judicial title in a letter reply to a notice of delinquency regarding his children's tuition debt. In a separate matter, he signed a complaint and improper warrant against his child's physical education teacher leading to the teacher's arrest. Samay made misrepresentations to the police, the ACJC, and the hearing panel, including when he reported that the teacher threatened to kill Samay's son. The teacher, represented by counsel, appeared before Samay for arraignment, and when counsel remarked that Samay had signed the complaint, Samay replied that he was the complainant in his individual capacity, he was simply advising the teacher of the charges, and no other judge was available. After the matter was transferred, the teacher was acquitted.
In addition, Samay failed to recuse himself in a 1995 domestic violence matter in which the councilman/husband previously had confirmed Samay's 1993 appointment and 1996 reappointment as a municipal judge, and signed a 1997 ordinance that increased his salary; Samay authorized the wife's temporary restraining order against the husband as well as a search warrant, which revealed several weapons that were not seized, and recused himself only after a complaint was filed alleging the theft of an automobile. In 1997, Samay authorized the issuance of a temporary restraining order and search warrant against the wife, and although no weapons were found, authorized her arrest and release on her own recognizance, without probable cause; it was only when the wife raised the issue of a conflict of interest at her arraignment that Samay recused himself; the charges against her were dismissed.
We found that the attorney in Samay was motivated by vindictiveness in all three matters, arranged for the arrest of two individuals, presided over their arraignments despite the conflicts of interest, and, in one of the matters, misrepresented the circumstances to the police and two tribunals. We, thus, determined that he violated RPC 3.3(a)(1), RPC 8.4(c), and RPC 8.4(d). The Court agreed with our conclusion that the attorney was not beyond rehabilitation, and that disbarment was not required to protect the public.
The OAE contended that here, similar to the attorney in Samay, respondent misused her judicial office when she intervened in the custody matter and then misrepresented the facts in multiple instances: to the police; during the ACJC investigation; before the ACJC at its hearing; and before the special hearing panel. In mitigation, the OAE recognized that respondent had no ethics history; acknowledged her misconduct; expressed regret; and is not beyond rehabilitation. The OAE, thus, maintained that a three-year suspension, not disbarment, is warranted.
On August 31, 2020, respondent, through counsel, submitted a letter brief accepting the OAE's recommendation and highlighting her mitigation. Respondent was an assistant prosecutor for approximately fifteen years, during which time she worked as chief of the Money Laundering Squad, chief of the Insurance/Medical Insurance Fraud Squad, and chief of the Sex Crimes and Child Abuse Squad/Special Victim's Unit. As P.J. of the Criminal Division, she was commended for significantly reducing pre-indictment and post-indictment backlog, and she increased the number of trials and dispositions per year. Respondent reiterated her health issues, noted that she did not receive any personal gain for her misconduct, and accepted full responsibility for her misconduct. She has lost her ability to financially provide for her family and is presently studying to become a biochemist.
As stated, respondent has performed extensive community service, including volunteering as an EMT and as a CPR instructor; organizing fundraisers to assist domestic violence victims, to assist homeless mothers and their babies for multiple charitable organizations, and to send children to school in Nigeria; traveling to the Dominican Republic and Columbia to help provide medical care to children and adults; and transporting patients to dialysis and emergency departments in response to 911 calls in residences and nursing homes.
Further, respondent's family came to the United States as immigrants from Columbia, and respondent was the first person in her family to graduate from college and seek higher education. Moreover, respondent has submitted seven letters from former law clerks, co-workers, friends, and attorneys, including a former adversary, attesting to her upstanding character as an attorney, as a judge, and in her personal life. The recurrent themes through these letters are that respondent is honest and compassionate, especially with pro se litigants and children; is ethical and fair; serves the public; and was an "excellent judge." One of her former law clerks opined that respondent "eased my anxiety about entering the profession as a Latina woman and served as a good example of strength and resolve."
Finally, respondent urged us, in determining the appropriate sanction, to consider the totality of her life and career, and asserted that she is far from being beyond rehabilitation.
Following a review of the record, we are satisfied that the facts contained in the stipulation clearly and convincingly support the finding that respondent violated RPC 3.3(a)(1); RPC 3.3(a)(4); RPC 8.1(a); RPC 8.4(c); and RPC 8.4(d).
Specifically, respondent violated RPC 3.3(a)(1); RPC 8.1(a); RPC 8.4(c); and RPC 8.4(d) by making multiple misrepresentations during the ACJC investigation, before the ACJC during its hearing, and before the Court's special hearing panel, including her baseless denial of her personal relationship with Chermont and their extensive communications. Further, respondent made multiple, brazen representations to the FLPD which were repeated before the ACJC, including that she was on emergent duty on May 9, 2015 and had seen the appropriate court order; and that she had received the May 9, 2015 telephone call from an "attorney," or someone else, whose emergent application indicated that there may be a possible altercation between the two parents which may harm the child, inducing the FLPD to act on behalf of Chermont and remove the child from his grandmother's home.
Next, respondent violated RPC 3.3(a)(4); RPC 8.1(a); RPC 8.4(c); and RPC 8.4(d) by providing altered, fabricated cell phone records to the ACJC and the special panel, which intentionally omitted a call from respondent's phone to Chermont's phone at 11:44 a.m. on May 9, 2015, as shown on the phone bills that the Attorney General subsequently subpoenaed.
In sum, we find that respondent violated RPC 3.3(a)(1); RPC 3.3(a)(4); RPC 8.1(a); RPC 8.4(c); and RPC 8.4(d). There remains for determination the appropriate quantum of discipline to impose on respondent for her unethical conduct.
Generally, the discipline imposed on an attorney who makes misrepresentations to a court or exhibits a lack of candor to a tribunal, or both, ranges from a reprimand to a long-term suspension. See, e.g., In re Marraccini, 221 N.J. 487 (2015) (reprimand imposed on attorney who attached to approximately fifty eviction complaints, filed on behalf of a property management company, verifications that had been pre-signed by the manager, who had since died; the attorney was unaware that the manager had died and, upon learning that information, withdrew all complaints; violations of RPC 3.3(a), RPC 8.4(c), and RPC 8.4(d); in mitigation, we found that the attorney's actions were motivated by a misguided attempt at efficiency, rather than by dishonesty or personal gain); In re Monahan, 201 N.J. 2 (2010) (attorney censured for submitting two certifications to a federal district court in support of a motion to extend the time within which to file an appeal; the attorney misrepresented that, when the appeal was due to be filed, he was seriously ill and confined to his home on bed rest and, therefore, either unable to work or unable to prepare and file the appeal, a violation of RPC 3.3(a)(1); the attorney also practiced law while ineligible); In re Trustan, 202 N.J. 4 (2010) (three- month suspension for attorney who, among other things, submitted to the court a client's case information statement that falsely asserted that the client owned a home, and drafted a false certification for the client, which was submitted to the court in a domestic violence trial; violations of RPC 3.3(a)(1) and (4); other violations included RPC 1.8(a) and (e), RPC 1.9(c), and RPC 8.4(a), (c), and (d)); In re Forrest, 158 N.J. 428 (1999) (six-month suspension imposed on attorney who, in connection with a personal injury action involving injured spouses, failed to disclose the death of one of his clients to the court, to his adversary, and to an arbitrator, and advised the surviving spouse not to voluntarily reveal the death; violation of RPC 3.3(a)(5), RPC 3.4(a), and RPC 8.4(c); the attorney's motive was to obtain a personal injury settlement); In re Cillo, 155 N.J. 599 (1998) (one-year suspension for attorney who, after misrepresenting to a judge that a case had been settled and that no other attorney would be appearing for a conference, obtained a judge's signature on an order dismissing the action and disbursing all escrow funds to his client; the attorney knew that at least one other lawyer would be appearing at the conference and that a trust agreement required that at least $500,000 of the escrow funds remain in reserve; violation of RPC 3.3(a)(1) and (2), RPC 3.5(b), and RPC 8.4(c) and (d); two prior private reprimands [now admonitions]); and In re Kornreich, 149 N.J. 346 (1997) (three-year suspension for attorney who had been involved in an automobile accident and then misrepresented to the police, to her lawyer, and to a municipal court judge that her babysitter had been operating her vehicle; the attorney also presented false evidence in an attempt to falsely accuse the babysitter of her own wrongdoing; violations of RPC 3.3(a)(4), RPC 3.4(f), and RPC 8.4(b)-(d)).
In crafting the discipline in this case, we also considered 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 De Lucia 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 De Lucia 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. De Lucia 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.
While in chambers, without anyone appearing before him, De Lucia "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, De Lucia wrote "testimony . . . defendant states view was obstructed by trees . . ." Ibid. Spencer's acquittal was based solely on the information that De Lucia had received from Terkowitz. Ibid.
When the prosecutor's office investigated the Spencer summons, De Lucia 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. De Lucia 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 De Lucia 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.
[Ibid. (citations omitted)]
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 (1977) (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 a 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 only a reprimand, the Court considered that the transgression had constituted a single 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 that the principles enunciated in In re Mattera, 34 N.J. 259, 275-276 (1961) applied equally to municipal prosecutors. ("[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. 539 (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.
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, 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. Id. at 294.
Similarly, 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.
More recently, 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).
Here, respondent's conduct resembles those of the former municipal court judges who received suspensions for similar misconduct. For example, in the ticket-fixing cases, De Lucia received a one-year suspension for fixing one ticket and presented mitigation; Spitalnick received a two-year suspension for fixing one ticket and presented mitigation; Molina received a six-month suspension for fixing nine tickets and demonstrated significant mitigation; Sica received a one-year retroactive suspension for fixing three tickets, but presented no mitigation; and Sison received a three-month suspension for fixing four tickets and demonstrated significant mitigation.
Respondent's conduct also resembles that of the attorney in Samay, who received a three-year suspension for three separate incidents of misconduct, resulting in the arrest of two individuals, and made misrepresentations to the police, the ACJC, and the hearing panel. The attorneys in Boylan and Thompson were disbarred, but those cases are distinguishable, because the misconduct in Boylan involved the heinous crime of veiled prostitution, and the misconduct in Thompson involved an elaborate scheme, over five years, to funnel court fees; both attorneys defrauded the government out of a significant amount of ticket revenue, and both attorneys acted out of selfish interests.
Finally, we considered the aggravating and mitigating factors set forth in the stipulation. This case presents no aggravating factors independent of the underlying misconduct. In mitigation, respondent has no ethics history since her 1992 admission to the bar; acknowledged her misconduct; expressed regret and contrition; was experiencing health issues at the time of the misconduct; performs extensive community service; had an excellent reputation in the legal community; and submitted persuasive letters attesting to her good character. Furthermore, the misconduct was aberrant behavior involving one incident, which was not indicative of respondent's true character.
On balance, respondent has presented significant mitigation, she is not beyond rehabilitation, and, based on precedent, we determine that a three-year suspension is the appropriate quantum of discipline necessary to protect the public and to preserve confidence in the bar.
Vice-Chair Gallipoli and Member Zmirich voted to recommend respondent's disbarment.
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.
Members
Three-Year Suspension
Disbar
Recused
Did Not Participate
Clark
X
Gallipoli
X
Boyer
X
Hoberman
X
Joseph
X
Petrou
X
Rivera
X
Singer
X
Zmirich
X
Total:
7
2
0
0