On order to show cause why respondent should not be disciplined.
Not guilty -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Schettino, J.
[30 NJ Page 2] The Ethics and Grievance Committee of the Salem County Bar Association received six complaints against J. Bernard Rogovoy, an attorney-at-law of this State (hereinafter referred to as "respondent"). Three of the complaints were filed by Maurice N. Shills, Marjorie Carroll and Roy A. Weiss. Shills' complaint was dismissed on the ground that the evidence did not sustain the allegations of the complaint. No phase of this complaint is before us. The other three were dropped by the committee. Additionally, we directed the committee to investigate and report on the circumstances surrounding the attempted withdrawals of the Carroll and Weiss complaints.
The committee, with one member dissenting, found that the evidence did not sustain the Weiss complaint which alleged that respondent breached an understanding concerning the method of payment of the counsel fee. As to the attempted withdrawal of the Weiss complaint, the committee, with one member dissenting, felt that, as the Weiss complaint could not be "formally proven," it could make no charge against respondent. However, the committee stated "In view of Canon 39, the committee is critical of Mr. Rogovoy's conduct * * *." The dissenting member stated:
"There is no doubt in my mind that the defendant was guilty of a violation of Canon 39 in so coercing Mr. and Mrs. Weiss as he did, nor is there any doubt in my mind that the defendant violated the spirit and letter of Canon 12 when he took over the Weiss home in lieu of his $1000 fee for representing Weiss in the criminal matter before the Court in Delaware County, Pennsylvania."
The Weiss complaint alleged that Weiss had engaged respondent for an agreed fee of $1,000 to defend Weiss on two Pennsylvania indictments; that Weiss could not then pay the fee; that at the suggestion of respondent, Mr. and Mrs. Weiss transferred title to their property valued at $4,500 to a straw grantee with the understanding that it would be reconveyed to them upon payment of the $1,000 fee; that the property was conveyed at respondent's direction by the straw grantee to Mrs. Rogovoy without an opportunity being given to Weiss to pay the fee; that thereafter respondent paid off a $500 mortgage and required Weiss to pay rent of $55 a month to him. Weiss testified that he paid $2,800 for the property and that he had made some improvements. The record shows that the property had encumbrances of approximately $3,600 and that its best appraised value was $4,500.
Admittedly, respondent represented Weiss on two indictments in Pennsylvania, personally paid a fine and costs of
over $200 to a Pennsylvania court for Weiss, paid on behalf of Weiss a fee of $325 to Weiss' Pennsylvania counsel, and thus respondent's computed net fee amounted to $475. Respondent denied that there was an agreement to reconvey the property but that Weiss asked him to take over the property, to pay off the obligations encumbering it, and to consider the $1,000 fee paid off by the equity of the property.
We agree with the committee's majority finding that the evidence did not support the Weiss charge of a breach of an alleged agreement concerning the payment of the fee and the reconveyance of the real estate. Moreover, our examination of the testimony supports the committee's conclusion concerning the circumstances surrounding the withdrawal of the Weiss complaint and its view that although there was no unethical conduct, yet respondent's handling of the matter was not free from criticism.
Canons of Professional Ethics, 39 provides:
"A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand."
The testimony is scant. Mrs. Weiss testified that she had received a telephone call from respondent telling her to have her husband come to his office regarding the complaint he had filed against respondent. She understood respondent to say that he wanted her husband to sign a statement that the complaint was not true and that, unless Weiss did so, Weiss would go to jail in Pennsylvania. Weiss testified that he went to respondent's office, talked to him about the complaint, told him that he (Weiss) did not know it was a complaint, did not intend to complain about respondent, and did not want to hurt anyone. He said that respondent asked him to tell the truth; that he then told respondent the truth;
that he had respondent draw an affidavit and thereafter both of them went to the Salem County Clerk's office where Weiss swore to the truth of the affidavit. Weiss emphatically declared that no one forced him to sign this affidavit and that he did it willingly.
Respondent testified that he called the Weiss home, spoke to Mrs. Weiss about back rent and the key to the house, both of which he wanted immediately because he was greatly incensed about the Weiss complaint against him and that if he did not get the rent and key right away, he would sue them. He also testified that when Weiss arrived at his office, he showed him the complaint and Weiss said, "That is not true," and stated he would tell the truth. Respondent reduced to typed affidavit form Weiss' statement and had Weiss sign and acknowledge it before an attorney at the county clerk's office.
We agree with respondent's counsel's statement that respondent's action was not "in particularly good taste." However, we agree with the committee that there was no violation of Canon 39. Although we find the charges not proved, we feel that poor judgment was exercised by respondent in personally communicating with the complaining witnesses. The safer course, in order to avoid a charge or an inference of improper pressure or undue stress, would have been for him to retain counsel immediately and let counsel prepare his case and interview the complaining and other witnesses.
In order to avoid any misunderstanding, we here note our policy that complaints cannot be withdrawn without the consent of the Ethics and Grievance Committee.
The Carroll complaint in essence charged respondent with planning a collusive divorce on behalf of his client, James Carroll, with the help of Mrs. Carroll. The committee found ...