For disbarment -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judges Conford, Sullivan and Lewis. Opposed -- None.
[62 NJ Page 134] Respondent was admitted to the bar of this State in 1961. Following a jury trial in the United States District Court for the Southern District of New York he
was convicted in April 1971 on two counts of a three-count indictment. The first count charged him and a co-defendant, a law partner of his, with conspiring with an unknown third person to sell and dispose of certain stolen property in the course of interstate commerce, knowing the property to have been stolen, in violation of 18 U.S.C. §§ 2314 and 2315. The second count charged respondent with perjury in sworn testimony before a federal grand jury investigating the matter. The co-defendant was acquitted. Respondent was sentenced to concurrent terms of imprisonment for one year on each count. There was an affirmance on appeal (without opinion) and a denial of certiorari by the United States Supreme Court.
At the trial respondent did not testify, electing to rest his defense on the testimony he gave before the federal grand jury investigating the matter, the transcript thereof having been adduced in evidence at the instance of the Government.
The Passaic County Ethics Committee conducted a hearing on the disciplinary aspects of the foregoing prosecution, and respondent there testified as to his version of the transactions in question and was cross-questioned by the Committee. The Committee also heard testimony from Mr. D., a former member of the Committee. See infra. Thereafter the Committee filed a presentment with this court. This sets forth that it was respondent's position that the Committee should reevaluate the merits of respondent's guilt of the charges of which he was convicted, on the record of the trial; that his conduct was not as an attorney but as an agent of another merely seeking to ascertain whether a reward was available for the return of stolen goods innocently discovered; and that in mitigation the Committee should consider (a) that respondent prejudiced his criminal case by following improvident advice not to take the stand at the trial and (b) that in doing what he was convicted for on the first count he relied on advice by Mr. D.
The Committee found that the trial record submitted on the appeal was not sufficiently complete to enable it to determine
respondent's guilt; but that the accusations against him involved serious violations of the law even if they did not relate to his professional conduct. The Committee concluded with a recommendation that the disciplinary penalty be less than disbarment for the reasons that there was no prior blemish on respondent's record and that he had been punished adequately for his "ill-considered and unwise action" by his conviction and imprisonment and the suffering of his family in consequence thereof.
Neither an Ethics Committee nor this Court reviews the truth of a criminal conviction in a disciplinary proceeding based upon the fact of a conviction. It may be appropriate in a given case to look at the underlying facts involved in the criminal charge to weigh the impact of the conviction upon the measure of discipline but in that process the fact of guilt will not be retried. In re Mischlich, 60 N.J. 590, 592-593 (1960). We will here advert to the facts, not to rerun the criminal convictions, but to see whether some amelioration may be found in the claim before the committee that respondent acted pursuant to advice sought and accepted in good faith from Mr. D. Id. at 593. If his claim in that regard were true, it would not reduce the impact of the convictions for perjury. In any event, an examination of the record reveals that respondent did not inform Mr. D. truthfully with respect to the role he had in mind and that respondent did not abide by the advice he received from Mr. D. The examination of the record, made to the end we have stated, satisfies us fully that respondent has been guilty of dishonest and immoral conduct of a nature which stamps him as unfit to continue on the roll of the members of the bar. His conduct cannot be passed off as merely "ill-considered and unwise."
From all the evidence we find the following. In January 1970 respondent came in contact with an individual, of whose identity no one can be confident from the record of this case, who was seeking a reward for return of certain
goods he had allegedly discovered. This person apprised respondent of his possession of 30 valuable porcelain art objects, apparently stolen, and he besought respondent's assistance in obtaining a reward from their owner. During his negotiations and communications hereinafter detailed respondent kept the name of the person secret, referring to him only as a "client." But ultimately, before the federal grand jury in October 1970, he purported to name the client, who he said had died in April 1970. He also later claimed that an intermediary, whom he had previously represented in certain matters, had put him in touch with the client.
Respondent told Mr. D. and others that his client had told him that the porcelain objects had been found among the effects of a deceased relative, along with a news clipping indicating they had been stolen from an Antique Porcelain Company in New York. A different version given by respondent at one time was that the client, after finding the objects, had engaged a private investigator who informed him as to the identity of the owner, and that the client had turned to respondent to ascertain whether there was a reward because the investigator was too expensive. Ultimately, according to respondent, he agreed with the client on an arrangement of a fee of $1,000 ...