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In re Bailey

Decided: February 8, 1971.

IN THE MATTER OF F. LEE BAILEY, AN ATTORNEY AT LAW OF THE COMMONWEALTH OF MASSACHUSETTS


For suspension for one year -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None.

Per Curiam

[57 NJ Page 451] Respondent is a member of the Massachusetts bar who was admitted pro hac vice (R. 1:21-2, formerly R.R. 1:12-8) to represent, in the trial court, certain defendants who had been indicted for murder in two highly publicized cases pending in Passaic County. This permission was revoked by the trial judge before trial because of respondent's actions. We affirmed the revocation. State v. Kavanaugh, 52 N.J. 7 (1968), cert. den. sub nom. Matzner v. New Jersey, 393 U.S. 924, 89 S. Ct. 254, 21 L. Ed. 2d 259 (1968). See also Matzner v. Brown, 288 F. Supp. 608, 612 (D.N.J. 1968), affirmed 410 F.2d 1376 (3rd Cir. 1969),

cert. den. 396 U.S. 1015, 90 S. Ct. 570, 24 L. Ed. 2d 506 (1970). Subsequently we issued an order that respondent show cause why he should not be barred from further practice pro hac vice in the State of New Jersey or otherwise disciplined on the basis that the same events constituted unethical conduct.

The matter was referred for hearing to Judge Morris Pashman of the Superior Court as a Master, to act as and with all the powers conferred upon an Ethics Committee, under the inherent authority of this court by virtue of its exclusive jurisdiction over admission to the practice of law and the discipline of persons admitted. Const. 1947, Art. VI, sec. II, par. 3. See In re Krieger, 48 N.J. 186, 191-193 (1966). The then Prosecutor of Bergen County, or such assistant as he might designate, was assigned to prosecute the proceeding. Pursuant thereto he prepared and served a statement of charges in six counts to which respondent filed a full answer. The trial of the charges was postponed until after the murder indictments had been finally disposed of, so that there might be no possible prejudice to the defendants therein, even though the disciplinary matter was to be heard in camera. The hearings, when held, were thoroughly adversary in nature with a complete presentation of evidence and legal contentions. The defense was vigorous and included jurisdictional and constitutional issues as well as attempted justification of what respondent had done.

Judge Pashman thereafter filed his report and findings of fact. He found respondent guilty of unethical conduct on the first count of the charges but not guilty on the remaining five. We thereupon brought that finding before us for disposition by the present order directing respondent to show cause why he should not be disciplined for the conduct concerning which the Master had found guilt.

Respondent did not file any brief with us. At oral argument his counsel stated that a full and fair hearing had been had before Judge Pashman. Counsel and he took the position that the findings were adequately substantiated by the

proofs and the applicable law and that they did not dispute them in any respect. This included an assumption of responsibility for the specific conduct complained of in the first count and its result, and of its improper and unethical character. They expressly narrowed the issue before us to the matter of what sanctions, if any, shall be imposed, in connection with which expressions of apology and apparent contriteness were made. The position taken amounted to an abandonment of all defenses other than factors in mitigation. We consequently treat the matter accordingly.

In order to reach an appropriate conclusion, reference must be made to the facts of the guilty conduct. Respondent was charged in the first count with violation of Canon 20 of the Canons of Professional Ethics which reads:

Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the Court; but even in extreme cases it is better to avoid any ex parte statement.

See also State v. Van Duyne, 43 N.J. 369 (1964), cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

The misconduct alleged was the sending of copies of a letter, addressed by respondent to the Governor of New Jersey under date of April 24, 1968, to 150 or more state and federal legislators and public officials and others "which he knew or had reason to know would be disseminated to news reporting media and thereafter to the public." In fact, the letter reached the press before it even arrived at the Governor's office and was published at once.

The letter, reproduced in full in State v. Kavanaugh, supra (52 N.J. at 9-10), was written and circulated close to the trial date of the first of the murder indictments, which involved one of respondent's ...


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