Opinion
Docket No. 19-062
09-17-2019
In the Matter of Richard B. Thompson An Attorney at Law
Eugene A. Racz appeared on behalf of the Office of Attorney Ethics. Robert E. Ramsey appeared on behalf of respondent.
Disciplinary Review Board
District Docket No. XIV-2018-0072E Decision Eugene A. Racz appeared on behalf of the Office of Attorney Ethics. Robert E. Ramsey appeared on behalf of respondent.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a motion for final discipline filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-13(c)(2), following respondent's guilty plea in the Superior Court of New Jersey, Monmouth County, to one count of fourth-degree falsifying records, in violation of N.J.S.A. 2C:21-4(a).
For the reasons set forth below, we determined to grant the motion for final discipline and to recommend respondent's disbarment and a permanent bar from serving in the judicial branch of government in the State of New Jersey.
Respondent earned admission to the New Jersey bar in 1982 and to the New York and District of Columbia bars in 1991. He has no history of discipline in New Jersey.
On February 2, 2018, before the Honorable David F. Bauman, P.J.Cr., Monmouth County, respondent pleaded guilty to one count of fourth-degree falsifying records, contrary to N.J.S.A. 2C:21-4(a). Respondent's guilty plea was pursuant to an accusation, whereby he voluntarily waived his right to an indictment by a grand jury.
During his guilty plea allocution, respondent admitted that, from January 2010 through October 2015, while serving in public office as a municipal court judge in nine jurisdictions, he had systematically falsified official court records in motor vehicle cases. Specifically, respondent admitted that he 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. In contrast, mandatory motor vehicle fines were required to be divided between the respective towns and Monmouth County. Respondent further admitted that, if challenged by a defendant, he often would revert contempt charges to mandatory fines, but, on one occasion, threatened jail time for a defendant who had raised such a challenge. Moreover, respondent admitted that he would improperly apply defendants' bail money toward the phony contempt charges, without notice or due process for those defendants.
Respondent further 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 of the presence of the defendants and their counsel. Respondent admitted that his scheme was successful and, thus, deprived Monmouth County of its fair share of motor vehicle fine revenue. Finally, respondent admitted that he continued his scheme, even after a March 7, 2014 meeting with his superiors to discuss his contempt of court practices. Although he began assessing smaller phony contempt fines, he continued to steer funds to his preferred jurisdictions, until his suspension from the bench, on October 23, 2015.
According to the prosecution, a two-year investigation by the Monmouth County Prosecutor's Office, Financial Crimes and Public Corruption Unit, revealed that respondent's scheme had affected approximately 4,000 cases between 2010 and 2015, and $1.2 million in motor vehicle fine revenue, $600,000 of which was diverted to respondent's towns from Monmouth County.
On February 2, 2018, as part of respondent's plea agreement, Judge Bauman executed a forfeiture of public office, ordering that respondent "be forever disqualified from serving as a municipal court judge and from holding any other office or position of honor, trust, or profit under this State or any of its administrative or political subdivisions," pursuant to N.J.S.A. 2C:51-2(d). On March 22, 2018, respondent was granted entry into the Pretrial Intervention Program (PTI).
To address the possibility that, upon his successful completion of PTI, the forfeiture of public office that he executed would be nullified, respondent consented to entry of a Court Order permanently disqualifying him from "holding or securing future judicial office in the State of New Jersey."
Following a review of the record, we determine to grant the OAE's motion for final discipline. Final discipline proceedings in New Jersey are governed by R. 1:20-13(c). Under that Rule, a criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-13(c)(1); In re Magid, 139 N.J. 449, 451 (1995); In re Principato, 139 N.J. 456, 460 (1995). Respondent's guilty plea to, and conviction of, fourth-degree falsifying records, in violation of N.J.S.A. 2C:21-4(a), establishes a violation of RPC 8.4(b). Pursuant to that Rule, it is professional misconduct for an attorney to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." Respondent's conduct also violated RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and RPC 8.4(d) (conduct prejudicial to the administration of justice). Hence, the sole issue is the extent of discipline to be imposed. R. 1:20-13(c)(2); In re Magid, 139 N.J. at 451-52; and In re Principato, 139 N.J. at 460.
In determining the appropriate measure of discipline, we must consider the interests of the public, the bar, and the respondent. "The primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar." Ibid. (citations omitted). Fashioning the appropriate penalty involves a consideration of many factors, including the "nature and severity of the crime, whether the crime is related to the practice of law, and any mitigating factors such as respondent's reputation, his prior trustworthy conduct, and general good conduct." In re Lunetta, 118 N.J. 443, 445-46 (1989).
In sum, respondent violated RPC 8.4(b), RPC 8.4(c), and RPC 8.4(d). The OAE urges respondent's disbarment. Respondent requests discipline short of disbarment.
The discipline imposed in cases involving similar misconduct in connection with 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), each attorney received a one-year suspension. At the time of their misconduct, they 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, and that, because her view had been obstructed, 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 object. Ibid.
While 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 that . . . 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 also the 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 In re Hardt, 72 N.J. 160 (1977) (municipal court judge) and In re Weishoff, 75 N.J. 326 (1978) (municipal prosecutor), the municipal court judge was removed from his position and reprimanded, and the prosecutor 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 rescheduled at the request of her attorney. Id. at 162. The officer who issued the ticket discovered that his and Mansmann's names had been crossed off the calendar. Because he assumed that the case had been postponed or that Mansmann had entered a guilty plea, he left the courthouse. Id. at 163.
Later that day, when only Hardt, the court clerk, the deputy clerk, and Municipal Prosecutor Weishoff were still 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 respond "not guilty," which she did. Ibid. Hardt then announced that he would deny a continuance and direct a verdict of not guilty. He completed the back of the summons "by writing in under finding 'N.G.'" 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 awareness 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 that his explanation, that they were "just fooling around," was not credible. 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 following principles enunciated in In re Mattera, 34 N.J. 259, 275-276 (1961), applied with equal force to municipal prosecutors: "[j]ustice is the right of all men and the 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." Ibid. 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 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 have 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 it was improper to dismiss the ticket without the appropriate medical information, he did so relying on Spitalnick, who had considerable experience and had prevailed upon 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 disciplined three 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, received a six-month suspension for adjudicating 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 either dismissed the tickets outright or wrote "Emergency" on them and then dismissed them, 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 either 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 in connection with her ethics matter: she deeply regretted and was embarrassed by her misconduct; she had served her community and helped women and minorities for the majority of her life; 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 conduct. Id. at 3-4.
In imposing the criminal sentence, the judge in Molina noted 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, thus, 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 received a one-year retroactive suspension to the date of her temporary suspension. She was found guilty of violating RPC 8.4(b), RPC 8.4(c), and RPC 8.4(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, inferred 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 did not reply to the grievance and then permitted the matter to proceed as a default. We, thus, imposed enhanced discipline, finding that her default was an aggravating factor under In re Kivler, 193 N.J. 332, 342 (2008). We found that the aggravating factors and the default nature of the proceedings warranted discipline harsher than that imposed in Molina. We, thus, determined to impose a one-year suspension, retroactive to the effective date of Sica's temporary suspension, which was imposed for failure to cooperate with the OAE's investigation into the matter. Id. at 12-13.
In In re Sison, 227 N.J. 138 (2016), the attorney, a part-time Jersey City municipal court judge who had 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 granted entry into PTI. Id. at 3-4. Sison had approached both 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 any 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.
Finally, 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 over $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.
The following line of disciplinary precedent also provides guidance in crafting the suitable penalty, given respondent's conviction for a criminal offense that directly impacted the administration of justice.
In 1984, the Court imposed a seven-year suspension (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 only to influencing a witness, in violation of 18 U.S.C. §371. Other charges against the attorney were dismissed pursuant to a plea agreement. 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 not disbarred because the Court determined that the events calling for 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). Unquestionably, here, respondent's criminal conduct falls within this category, given his interference with the administration of justice, his systematic falsification of official court records, and his prolonged deceit.
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 driver of the other car, 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 Yezzi wrote 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 go home, as the case against Kornreich had been dismissed, and that 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 was 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.
In our decision, we noted that, as of the date of oral argument, Kornreich continued to refuse to admit her wrongdoing or to show any remorse. In assessing the appropriate measure of discipline to impose on Kornreich, we considered two cases cited by the OAE, 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 took into account, 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, as 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 an 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.
Moreover, the Court has found that attorneys who commit serious crimes or crimes that evidence a total lack of "moral fiber" must be disbarred in order to protect the public, the integrity of the bar, and the confidence of the public in the legal profession. See, e.g., In re Quatrella, ___ N.J. ___ (2019), 2019 N.J. LEXIS 796 (attorney convicted of conspiracy to commit wire fraud after taking part in a scheme to defraud life insurance providers via three stranger-originated life insurance policies; the victims affected by the crimes lost $2.7 and the intended loss to the insurance providers would have been more than $14 million); In re Klein, 231 N.J. 123 (2017) (attorney convicted of wire fraud for engaging in an "advanced fee" scheme that lasted eight years and defrauded twenty-one victims of more than $819,000; the attorney leveraged his status as an attorney to provide a "veneer of respectability and legality" to the criminal scheme, including the use of his attorney escrow account); In re Seltzer, 169 N.J. 590 (2001) (attorney working as a public adjuster committed insurance fraud by taking bribes for submitting falsely inflated claims to insurance companies and failed to report the payments as income on his tax returns; attorney guilty of conspiracy to commit mail fraud, mail fraud, and conspiracy to defraud the Internal Revenue Service); In re Lurie, 163 N.J. 83 (2000) (attorney convicted of eight counts of scheming to commit fraud, nine counts of intentional real estate securities fraud, six counts of grand larceny, and one count of offering a false statement for filing); In re Chucas, 156 N.J. 542 (1999) (attorney convicted of wire fraud, unlawful monetary transactions, and conspiracy to commit wire fraud; attorney and co-defendant used for their own purposes $238,000 collected from numerous victims for the false purpose of buying stock); In re Hasbrouck, 152 N.J. 366 (1998) (attorney pleaded guilty to several counts of burglary and theft by unlawful taking, which she had committed to support her addiction to pain-killing drugs); In re Goldberg, 142 N.J. 557 (1995) (two separate convictions for mail fraud and conspiracy to defraud the United States); In re Messinger, 133 N.J. 173 (1993) (attorney convicted of conspiracy to defraud the United States by engaging in fraudulent securities transactions to generate tax losses, aiding in the filing of false tax returns for various partnerships, and filing a false personal tax return; the attorney was involved in the conspiracy for three years, directly benefited from the false tax deductions, and was motivated by personal gain); and In re Mallon, 118 N.J. 663 (1990) (attorney convicted of conspiracy to defraud the United States and aiding and abetting the submission of false tax returns; attorney directly participated in the laundering of funds to fabricate two transactions reported on two tax returns in 1983 and 1984).
In support of their respective positions, both the OAE and respondent cited and discussed much of the above disciplinary precedent. Additionally, in support of his request for discipline less than disbarment, respondent argues that disbarment for judicial misconduct is extremely rare; that no evidence in the record established that respondent received a "direct tangible benefit" in connection with his misconduct; and that the improper use of contempt of court sanctions was "not limited to [r]espondent but rather was a widespread, common and pervasive practice throughout the State," which was well-known by the Judiciary.
In support of the latter point, respondent cites the Court's formation of a "Contempt of Court Working Group," convened to study and address the improper use of contempt fines by municipal court judges. Respondent alleges that, in 2018, in connection with the working group's finding of rampant abuse, the Court Rules were amended to impose caps on sanctions in municipal court and new due process procedures for defendants accused of contempt.
In sum, respondent argues that, given the widespread abuse of contempt of court fines by municipal court judges in New Jersey, it would not be fair to "single [him] out" and impose disbarment for his conduct. Respondent notes that he was never questioned regarding his contempt practices until four years into his scheme, when he was summoned to a meeting with his superiors, in March 2014, after which he reduced his abuse of contempt of court sanctions. Further, he maintains that, during his time as a municipal court judge, he was subject to forty-eight audits by the Administrative Office of the Courts and was never accused of misconduct. He asserts that, despite his admitted criminal conduct, no defense attorney or defendant had filed an appeal of an improper sentence, and no ethics complaints had been filed with the OAE or ACJC until the case at hand. Finally, he argues that, notwithstanding the Court's awareness of the widespread abuse of contempt of court fines, the formation of the "Contempt of Court Working Group," and promulgation of Rule changes to address the abuse, "no other judges . . . . prosecutors or defense attorneys" have "been subject to judicial or attorney discipline for improperly imposing contempt sanctions and fines."
Despite respondent's protestations of being singled out, the evidence clearly and convincingly illustrates that he engaged in an egregious, systematic scheme of criminal conduct, while serving in public office. Pursuant to Conway, such behavior normally mandates disbarment. Like the judge disbarred in Boylan, respondent's crimes deeply and profoundly impugned the integrity of the legal system.
As stated by the Court in Verdiramo, misconduct that "subverts and corrupts the administration of justice" is branded as among the most egregious. Respondent's misconduct directly poisoned the well of justice and called into question the integrity of the judicial process - conduct beckoning the ultimate sanction of disbarment, in accordance with the Court's decisions in Boylan, Conway, Verdiramo, Giordano, and Kornreich. Respondent perverted the administration of justice for years, curbing, but not ending, his criminal conduct only when confronted by his superiors. Respondent's crimes exposed his lack of moral fiber, openly displaying his unfitness to continue to practice law.
The only mitigation for us to consider is respondent's lack of prior discipline. In aggravation, unlike the attorney in Kornreich, whose youth and inexperience served to spare her the ultimate sanction of disbarment, respondent has vast experience and expertise in the practice of law, and, thus, knew the implications of his misconduct. Although we give respondent's clean disciplinary history due consideration, that lone mitigating factor is insufficient to change the inevitable conclusion that must be reached, given the facts of this case - respondent's misconduct evidences such defective character that disbarment is required to protect the public and to preserve confidence in the bar.
We, thus, recommend that respondent be disbarred, in order to protect the public and the integrity of the bar, and to preserve the confidence of the public in the legal profession. We further recommend that he be permanently barred from serving in the judicial branch of government in the State of New Jersey.
Member Singer voted for the imposition of a three-year suspension.
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
Bruce W. Clark, Chair
By:/s/_________
Ellen A. Brodsky
Chief Counsel
VOTING RECORD
Argued: April 18, 2019 Decided: September 17, 2019 Disposition: Disbar
| Members | Disbar | Three-YearSuspension | Recused | Did NotParticipate |
|---|---|---|---|---|
| Clark | X | |||
| Gallipoli | X | |||
| Boyer | X | |||
| Hoberman | X | |||
| Joseph | X | |||
| Petrou | X | |||
| Rivera | X | |||
| Singer | X | |||
| Zmirich | X | |||
| Total: | 8 | 1 | 0 | 0 |
/s/_________
Ellen A. Brodsky
Chief Counsel