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In re Russell

New Jersey Supreme Court

Decided: October 12, 1971.


For reprimand -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed -- None.

Per Curiam

[59 NJ Page 315] The Attorney General of New Jersey called the attention of this court to testimony taken before the State Grand Jury which suggested that certain conduct of

[59 NJ Page 316]

respondent had been unethical, unprofessional and in violation of the Canons of Professional Ethics. We referred the matter to a Judge of the Superior Court, designated as a Master of this Court, to act as an Ethics Committee with all the powers conferred upon such a committee by R. 1:20 and directed that a statement of charges in lieu of complaint be prepared and served upon respondent in accordance with R. 1:20-2(b).

In essence, it was charged that respondent gave advice to two persons about to testify before the State Grand Jury, at a time when he represented clients whose interests conflicted with those of the prospective witnesses and when the latter were, to respondent's knowledge, already represented by another attorney who had given them advice sharply at variance with that offered by respondent.

Following a full hearing the Master filed a report finding respondent substantially guilty as charged. Our own examination of the testimony amply confirms this determination.

Respondent represented several persons who had been subpoenaed to testify before the State Grand Jury. He was present with his clients in a corridor of the building where the Grand Jury was sitting. Two young ladies who had been employed by one of respondent's clients as "numbers clerks" in an alleged gambling operation were also present awaiting their turn to testify. The Master found -- and we agree -- that respondent approached these prospective witnesses and suggested that they avail themselves of their Fifth Amendment privilege of remaining silent when called before the Grand Jury. This they did. At the time, respondent was aware that these ladies were already represented by another attorney who had advised them to testify fully and truthfully. At a later date, the ladies did in fact return and testify.

Respondent argues that his conduct did not specifically violate any of the ethical canons. But as we have observed, "[t]his Court's disciplinary power is not confined to the

[59 NJ Page 317]

area covered by the canons." In re Blatt, 42 N.J. 522, 524 (1964). This is so because an attorney's conduct is not to be solely judged by these admonitions. As the Preamble to the Canons of Professional Ethics states, "The following canons of ethics are adopted * * * as a general guide, yet the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned." Cf. In re Mattera, 34 N.J. 259, 263-264 (1961). Furthermore, we agree with the Master's conclusion that the impugned conduct did violate, at the very least, Canons 7 and 29.*fn1

In discharging our responsibility in disciplinary proceedings, a determination of the appropriate punishment is often the most difficult part of the task. Such is the case here. Respondent was only admitted to the bar in 1964 and has had, until now, an unblemished record. We are inclined to accept his statement that what he did was thoughtless

[59 NJ Page 318]

and to receive his plea of contrition as sincere and genuine. Penitence may properly be considered in mitigation of an offense such as this. Nevertheless respondent's conduct clearly merits censure and he is herewith severely reprimanded.

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