For suspension for three years -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Clifford and Judge Conford. Opposed -- None.
This matter was brought before the Court on the petition of the Chief of the Central Ethics Unit, Administrative Office of the Courts, for the appropriate discipline of respondent for alleged serious violations of the Code of Professional Responsibility. Petitioner acted in the belief that the disposition of the matter recommended by the Gloucester County Ethics Committee -- a letter of reprimand from the Committee to respondent -- was unduly lenient in the light of the nature of the evidence as to the offenses.
The matter arises out of the representation by respondent of one Tallman on a charge by the Deptford Township police against Tallman of driving while under the influence of alcoholic beverages in May 1971. Tallman and respondent had five or six meetings between that time and September 1971 at which terms and conditions of the representation and the progress of respondent's work in the matter were discussed. Tallman's account of the matter, given at two hearings conducted by the Ethics Committee, the second subject to severe cross-examination by counsel for respondent, was that respondent quoted him a fee of $500, but said either at that or the ensuing meeting that the matter would cost Tallman two or three times that sum, and that respondent informed him at their next meeting after that discussion that Tallman would have to pay a total of $2500. Of this, $2000 would be distributed between the local judge, the township prosecutor, the arresting police officer and a sergeant of police. In return for this, respondent guaranteed that the penalty would not exceed a small fine for careless driving, the respondent undertaking to repay an unspecified
portion of the extra $2000 should Tallman's license be revoked for any period. Tallman was anxious to avoid any revocation as his job as a truck driver depended on his driving license. Although Tallman paid the $500 retainer in the beginning, respondent insisted that the entire $2000 balance be paid prior to the municipal court hearing, and since Tallman was having difficulty raising it respondent kept adjourning the hearing. The case was finally removed from the jurisdiction of the Deptford municipal court after the matter of respondent's alleged impropriety came to the attention of the Gloucester County Prosecutor's Office, and Tallman was ultimately convicted of the statutory driving violation in the county court.
In August 1971 the Gloucester County Prosecutor and the State Police induced Tallman to attend a meeting with respondent at the latter's office wearing a secret electronic recording device monitored by the police in a nearby automobile. The meeting took place August 11, 1971, and a transcript of the tape of the purported recording made by the Gloucester County Prosecutor's Office, marked Exhibit B, is attached to the petition herein. Tallman was accompanied by his wife, and some of respondent's recorded remarks were addressed to her. The purported purpose of the meeting was for Tallman to bring respondent $1200 of the additional money demanded by him. Tallman told respondent the money had been furnished by his brother-in-law, but in fact it was supplied by the police. Tallman was instructed by the police to draw respondent out in substantiation of the alleged previous proposal for Tallman to advance funds for distribution to the officials mentioned above.
The crux of the issue before us is whether the substance of the recorded tape of the meeting of August 11, in the light of Tallman's direct inculpatory testimony, and as against respondent's flat denial of the alleged corrupt proposal and his explanations before the Ethics Committee and this Court of the "intent" of his seemingly incriminatory
admissions on the tape, establishes respondent's guilt of the charges laid in the petition by clear and convincing proof. In re Pennica, 36 N.J. 401, 419 (1962).
Respondent's testimony on the charge of the petition is in substance as follows. Tallman called upon him to represent him in the drunk-driving matter. He reviewed the facts with Tallman and investigated the police file. He was encouraged to find that the police report of Tallman's refusal to take a breathalyzer test had not been forwarded to the State Motor Vehicle Department in Trenton, as its receipt there would have been followed by an automatic six-months driving suspension. Moreover, as the police had not administered any Romberg tests to Tallman on the occasion of the arrest, he felt, and told Tallman, he was confident of an acquittal. He required of Tallman a $500 payment as a retainer, but indicated from the outset that the total fee could go as high as $2500, depending on the work and time involved and the results obtained. Cf. Disciplinary Rule DR 2-106(C). Respondent categorically denied having made any proposal for money to be distributed to public officials.
Respondent voluntarily appeared before the State Grand Jury on March 9, 1973 and testified there in explanation of the suspicious remarks and comments on the August 11, 1971 tape. He was given a copy of the tape to listen to prior to the Grand Jury session, and it was replayed to him before the jury. While he found fault with the prosecutor's stenographic transcript of the tape in respect of accuracy and completeness as to various words or phrases, none of which we find really material to the meaning of any of the compromising segments of the tape, he admitted to the Grand Jury that with those exceptions the tape did "fairly and accurately reproduce the conversation that [he] had with Mr. Tallman." Respondent was not indicted.
To complete the factual record, Tallman returned to respondent's office on August 24, 1971 with the balance of $800 required by respondent. This money was also supplied by the police, and a ...