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In re Krieger

Decided: November 21, 1966.

IN THE MATTER OF HAROLD KRIEGER AND MORRIS BRAUER, ATTORNEYS-AT-LAW OF NEW JERSEY


Per Curiam

These are disciplinary matters. Respondents, Harold Krieger and Morris Brauer, are charged with unethical conduct with respect to the theft of a file from a court-appointed officer and the preparation and submission to a trial court of a forged paper prepared from material in the stolen file. The conduct related to a civil suit to which we will presently refer. Krieger is separately charged with initiating a criminal prosecution against a witness for the purpose of achieving a favorable result in that civil action. Brauer is charged separately with seeking to induce a member of the Bar to transmit a corrupt proposal to the Prosecutor of Essex County, which conduct is not related to the civil suit above mentioned.

The charges were referred to Judge Giuliano as a master for trial. Following his report, we issued the orders to show cause now before us.

I

The civil action mentioned above involved the ownership of a corporation. Krieger represented the plaintiff, Gershon Shugar, while Jerome C. Eisenberg represented defendants David Perlstein and Wilbur Perlstein. Shugar and David Perlstein are married to sisters of respondent Brauer. Shugar and David Perlstein each held of record 50% of the stock of the corporation, but Wilbur Perlstein claimed he was entitled to a one-third interest and he was supported in that claim by his brother, David. Although not counsel of record in that case, Brauer worked actively with Krieger in the interest of Shugar.

The parties continued to run the corporate business during the litigation despite the ferocity with which it was waged, but being unable to agree upon operational decisions, they stipulated that John Drewen, a retired judge of the County Court, should arbitrate disputes in that area. Later Judge Drewen was appointed to that role by the trial court and he served until relieved at his own request on May 8, 1964.

The trial of the civil suit, which consumed 19 days, ended on September 21, 1964. Judge Matthews, the trial judge, filed his opinion in favor of Wilbur Perlstein on June 2, 1965. One week later Judge Drewen's secretary discovered his files with respect to that matter had been stolen. On June 16 Judge Drewen advised Judge Matthews of that fact.

Krieger received four envelopes through the mail, three postmarked respectively June 14, 19, 24, 1965, and the last apparently also postmarked in the same month. The enclosures therein purported to be reproductions of letters from Eisenberg to Judge Drewen and from Eisenberg and Judge Drewen to Mortimer C. Low, the accountant for the corporation.

The letters reproduced and transmitted in the first three envelopes were innocuous. Krieger brought one or more of them to Judge Matthews. The fourth envelope contained eight reproductions, one of which, purportedly written by Eisenberg to Judge Drewen under date May 20, 1965 and marked "Confidential," reads:

"Recently, it was necessary for me to tell David Perlstein, and reassure him three times, that he should not be impatient; that Judge Matthews informed me that the factual decision would be released in early June, a complete victory on all our issues. When our depraved friend down your hall receives it, he will have reason to then fulminate.

Assuring you of our appreciation for your untiring efforts throughout the entire proceedings, I know a call from you to David would instill the patience he now requires."

When Krieger brought the last batch to Judge Matthews on July 2, 1965, Judge Matthews summoned Eisenberg and

then informed all counsel of the theft of Judge Drewen's file. Eisenberg was shown the letter quoted above and he immediately denounced it as a fraud. Judge Matthews telephoned the Chief Justice who directed that all the exhibits be impounded, subject to access by experts designated by any of the parties, and that the matter be referred to the Attorney General for investigation.

Eisenberg and Krieger each had the questioned letter examined by an expert of his own selection. Eisenberg testified his expert found it to be a forgery, the quoted portion of the letter being a fabrication placed upon an old letterhead and then photographed. We are told by counsel for Krieger that his expert was unable to say whether the document was fabricated. We cannot understand how an expert could be in doubt if he was shown all of the exhibits. As Eisenberg's expert noted, the signature "Jerry" on the disputed document coincides precisely with the signature on a genuine letter from Eisenberg to Judge Drewen, dated October 25, 1963, a reproduction of which was contained in the same envelope in which the disputed document was transmitted to Krieger, thus showing that the genuine signature on the October 1963 letter was either itself used or was traced in preparing the fabricated letter. The fact of forgery is thus indisputable, and hence we need not relate the additional proof which would independently require that same finding.

The New Jersey State Police conducted the investigation. It developed that one of the four envelopes mailed to Krieger was addressed on a typewriter in his office and that one of the reproductions was made on a Xerox machine in his office. However, neither the forged letter nor the envelope in which it came was traced to Krieger's office or to the other places inspected, which included the offices of Eisenberg, Brauer and Shugar.

Confronted with the fact that his office equipment was involved, Krieger, according to Detective Pagano, seemed genuinely surprised and blurted "Morris Brauer." We note that Judge Drewen, Krieger, and Brauer had their offices in the

same building. Krieger produced an employee who said that Brauer used his Xerox machine in June of 1965. This Brauer denied. Krieger offered evidence that Shugar had used the Xerox machine and this Shugar testified was true. Finally, Krieger offered testimony that he "passed" a lie-detector test conducted by the State Police. The other men mentioned, Brauer, Shugar, and Eisenberg, had also submitted to such tests voluntarily.

Brauer offered no evidence beyond his own denial of complicity or knowledge.

Judge Giuliano found in favor of the respondents with respect to the theft, the forgery, and the use of a known forgery. We nonetheless issued our orders to show cause.

A

We interrupt the discussion of the merits to comment upon the contention pressed by Krieger in his brief that the procedure here used did not afford him due process.

In this regard, Krieger notes that the order of reference provided that Judge Giuliano "shall act as an Ethics Committee and shall have all the powers conferred upon such a Committee by Rule 1:16." The point he makes is that under Rule 1:16-4, a member of an ethics committee first conducts an ex parte "preliminary investigation," and thereafter the committee decides, upon a consideration of the report of the investigator, whether to close the matter (subject of course to our ultimate review) or to set it down for final hearing. Here the preliminary investigation was had before the reference was made to Judge Giuliano. The investigation was made by the State Police, and upon its report we decided that a formal hearing was warranted. There was no reason to ask a member of an ethics committee, or someone designated by Judge Giuliano, ...


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