By orders dated June 3 and June 19, 1974, the Supreme Court of New Jersey suspended Abrams from the practice of law for 1 year, effective July 1, 1974, and until the further order of the Court. These disciplinary proceedings on order to show cause under Local Rule 7 followed.
The facts and circumstances are adequately detailed in the opinion of the Supreme Court, 65 N.J. 172, 320 A.2d 471 (1974) and need not be repeated here. It was recognized there that Abrams' participation in activities leading to the payment of a bribe to a public official was improper. It was also indicated that his interest in salvaging his investment share of the client's enterprise, to protect which the bribe was paid, and the existence of extortionate elements in the demands of the public officials, were mitigating factors to be given effect in selecting the degree of disciplinary action to be taken.
We view the matter somewhat differently. The acquisition of an interest in the client's enterprise was obviously a factor that interfered with the exercise of free judgment on behalf of the client. Code of Professional Reponsibility, Canon 5, EC 5-1, 5-2 and 5-3; DR 5-103 and 5-104.
Another factor is that Abrams accepted a share of a real estate commission paid by the City of Jersey City on the sale of property on public bid. He deposited that share in his trust account, explaining that he considered it to belong to the client, but no credible explanation was provided for the making of the payment in the first place. The commission aspect bears all the indications of a device to divert public funds into channels from which they could be repaid secretly to the public officials. Justification for its payment is not satisfactorily shown.
We see no basis for distinguishing this case from In re Colsey, 63 N.J. 210, 306 A.2d 72 (1973). Professional misconduct, like fraud, takes many forms. Variations in detail are not significant when the underlying character is the same. A lawyer who countenances and assists client misconduct for the payment of an extortionate bribe countenances two offenses: one, the extortion and two, the bribe. His minimum duty in such circumstances is to advise the client against it in the strongest terms, and if the client persists, to disassociate himself from the matter promptly and completely. And, since a communication in the course of legal service sought in aid of the commission of a crime or fraud is not privileged, N.J.Ev. Rule 26(2) (a), he may be under a further duty to report the matter to proper authorities.
Abrams is a member of the bar of this Court by derivative admission on motion, by virtue of his status as an attorney licensed to practice by the Supreme Court of New Jersey. Local Rule 4. Ordinarily, a suspension, disbarment or censure by the Supreme Court of New Jersey will result in corresponding action here. Local Rule 7. But this accommodation does not necessarily suffice to discharge the independent obligation of this Court to take appropriate action on its own rational analysis and determination, although in doing so it will hold the greatest respect for, and give due weight and consideration to, the views of the Supreme Court. In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968); In re Wilkes, 494 F.2d 472, at 474-475 (C.A.5, 1974).
Then, too, there will be cases in which this Court will act first. If an attorney be convicted of a crime in this Court, or commits an act of professional misconduct in connection with a matter before this Court, a disciplinary proceeding may begin here and be concluded here, or may take the form of a temporary suspension here pending disciplinary proceedings here or before the Supreme Court. In either case, this Court would duly inform the Supreme Court of the pendency of the matter, and of the outcome, so that it might proceed to carry out its functions under N.J.Const.1947, Art. 6, § 2, par. 3. The same would be true in the case of attorneys disciplined here who are admitted to the practice of law in other jurisdictions.
Differences in disciplinary action as between this Court and the Supreme Court could give rise to practical difficulties for the disciplined lawyer. If the Supreme Court's discipline be more severe than ours, it will likely control the practical impact because the ability to practice before this court would have little meaning without the ability to practice law in New Jersey. If this Court's discipline be more severe, the practical impact will be lessened considerably by the lawyer's ability to practice law in New Jersey although not in this Court.
Since the instances in which the two Courts will have different views are not likely to be frequent, and since the practical impact of the Supreme Court's view will necessarily predominate, we do not think the risks are sufficiently great to warrant the withholding of different views when they are held by this Court.
For the reasons stated, it is hereby ordered that the name of Arthur Lawrence Abrams be, and the same hereby is, stricken from the roll of attorneys permitted to practice before this Court, and until the further order of the Court.
s/ LAWRENCE A. WHIPPLE, Chief Judge
s/ JAMES A. COOLAHAN, Senior ...