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In re Logan

Decided: May 13, 1976.

IN THE MATTER OF JAMES LOGAN, JR., AN ATTORNEY AT LAW


For reprimand -- Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None.

Per Curiam

[70 NJ Page 224] James Logan, Jr., a member of the bar in this state, has been charged with violations of certain ethical standards in two separate proceedings, hereinafter referred to as the Liddell and Parmigiani matters. After hearings had been held on both matters, the Burlington County Ethics Committee submitted two presentments to this Court, in response to which we issued an order to show cause why the respondent should not be disbarred or otherwise disciplined with respect to each presentment. During the course of the proceedings, respondent moved to dismiss both charges on the basis of a general broadbased attack against disciplinary proceedings. We address ourselves initially to the motions.

I. THE MOTIONS TO DISMISS THE DISCIPLINARY PROCEEDINGS

The respondent charges that the disciplinary rules do not provide for a "fair or meaningful hearing as required by the rules of due process." It is contended that constitutional due process rights are violated because: (1) the Ethics Committee acts as "investigator, prosecutor, judge and jury"; (2) the respondent is denied the right to examine the investigative report and there are no available discovery rules; and (3) there are no appeals from determinations on motions or decisions of this Court.

Article 6, ยง 2, paragraph 3 of the Constitution confers "jurisdiction over the admission to the practice of law" and imposes the duty of disciplining persons so admitted on the Supreme Court. The Court's responsibility is to protect the public, purify the bar, and prevent recurrent deviations from the ethical standards which members of the bar must meet. In re Malanga, 45 N.J. 580, 584 (1965). In discharging this duty, the Court must exercise its powers with just and decent regard for all vital interests concerned, including those of the public, the bench, the bar and the individual respondents. In re Greenberg, 21 N.J. 213, 224-225 (1956).

The American Bar Association's ethical code has been substantially adopted by this Court as its Disciplinary Rules. Preliminary investigation, preparation of charges, and presentment of the matters to this Court have been entrusted primarily to ethics committees in each county. The respondent misconstrues the function of these committees and the manner in which they operate. These committees are agents of the Supreme Court. It is the Supreme Court which in the final analysis makes the factual findings, draws the legal conclusions, and determines the appropriate discipline. Chief Justice Vanderbilt in Toft v. Ketchum, 18 N.J. 280 (1955), delineated the procedure:

Proceedings may be instituted before the county ethics committee in one of three ways: filing of a complaint by some third person, on a committee's own motion, or at the direction of the Supreme Court. The matter is usually assigned to a committee member who investigates and submits a written report to the committee. Upon the filing of a complaint, service is made on the attorney who must file his answer within 10 days. R. 1:20-4(c). If there is "an indication of unethical or unprofessional conduct," the matter is set down for a hearing. R. 1:20-4(d). The respondent is notified of the time and place of the formal hearing, that he may be represented by counsel, that subpoenas will be furnished upon his request and that witnesses and other proof may be submitted at the hearing. R. 1:20-4(d).

The hearing is conducted in private. The attorney has a right to be present and to examine and cross-examine witnesses. R. 1:20-4(f). Strict rules of evidence do not apply. Id.

At the conclusion of the hearing, the committee submits its written findings and conclusions. If no unethical or unprofessional conduct is found, the complaint is dismissed and the report filed with the Administrative Director of the Courts. On the other hand, if its findings are adverse to the attorney, a presentment is prepared and submitted with

the transcript of the hearing and all the exhibits to the Supreme Court. R. 1:20-4(h). The Supreme Court reviews the file and decides whether further proceedings are warranted. If so, it issues an order to show cause directed to the respondent. R. 1:20-4(i). Briefs are filed and oral argument held. Id. The Supreme Court then makes its findings of fact and conclusions of law.

The respondent contends that the disciplinary process is equivalent to a criminal proceeding. But it is not. It is sui generis. In In re Ries, 131 N.J.L. 559 (Sup. Ct. 1944) the court described the function of the proceeding:

But the proceeding is not criminal in nature. It is an exercise of the summary disciplinary jurisdiction of this court over attorneys and counselors, as officers of the court. Strong & Sons v. Mundy, 52 N.J. Eq. 833. It is civil in character, or, perhaps, it is more accurate to say it is sui generis, for it partakes, essentially, of an inquiry to determine whether the delinquent practitioner is unworthy of the trust and confidence which attend the relationship of attorney and client. This is necessarily the basic consideration. The object of disciplinary proceedings is not alone to punish the attorney guilty of malpractice; the primary purposes are to compel the attorney to deal fairly and honestly with his client, and to determine whether he has, by his conduct, proved himself unfit to be entrusted with the duties and responsibilities of the office of attorney. In re Lentz, 65 N.J.L. 134. If it is thereby evident that there is such deficiency of character as disqualifies him for the confidence and trust inherent in the office, the public interest requires that he be ousted; and this wholly apart from any consideration of punishment. [ Id. at 562].

The purpose of a disciplinary sanction, whether it be a reprimand, suspension, or a disbarment, is not punishment, but maintenance of the integrity and purity of the bar, elimination of unfit persons from the practice of law, and vindication of public confidence in the bar and the administration of justice.

In conjunction with his misunderstanding of the essential nature of a disciplinary proceeding, the respondent erroneously equates a hearing by an ethics committee with a

jury trial. Throughout the process committee members have different functions than the jury. The investigating committee member does not sit as the fact finder. He investigates and presents the matter to other committee members who submit recommended factual findings to the Court.*fn1 Further it must be remembered that all committee members, unlike jurors, are members of the bar -- trained in the rules of evidence and skilled in distinguishing competent from incompetent evidence and able to impartially judge facts presented at the hearing. The respondent's charges that the Burlington County Ethics Committee which heard the matter had not discharged its functions with integrity, was biased, was not fair and impartial and did not base its adjudication on competent evidence in the record are unfounded, unjustified and unsupportable.

The disciplinary proceedings afford the attorney a full opportunity to be heard, and to confront and cross-examine witnesses. He may present whatever relevant evidence he desires and has the right to subpoena witnesses and documents. He may submit briefs and orally argue the cause before the Supreme Court -- the only body which has the authority to decide the issues, factual and legal, and fix the disciplinary terms. Nor contrary to respondent's assertion is there a denial of due process because no appeal is possible from this Court's decision. It has frequently been held that the right of appeal is not essential to due process. Ohio ex rel. Bryant v. Akron Metrop. Pk. Dist., 281 U.S. 74, 50 S. Ct. 228, 74 L. Ed. 710 (1930); Griffin v. Illinois, 351 U.S. 12,

76 S. Ct. 585, 100 L. Ed. 891, reh. den. 351 U.S. 958, 76 S. Ct. 844, 100 L. Ed. 1480 (1956).

The respondent complains that only the Ethics Committee has the power of discovery. But again he ignores the fact that the initial investigation is only intended to ascertain whether there is need for a plenary proceeding. Once a hearing on the charges is held, the respondent may subpoena witnesses and documents which he believes are appropriate and necessary. Due process does not require that the respondent be made aware of, or be present at, each of these preliminary investigatory steps. Even in a criminal case this is not so. On the other hand, the respondent is entitled to have access to all relevant and material data which the investigation has uncovered if formal proceedings are instituted.*fn2 All the underlying factual information upon which the formal presentment was predicated was made available.

The respondent complains that motions in the cause had to be presented to the Supreme Court and this constituted a denial of due process. But as we have pointed out above, the proceeding is one in this Court. No restraint was imposed on the respondent in this respect and he made several motions, all of which were ruled on by the Court.

The respondent also complains that in all other proceedings involving revocations of licenses, appeals from the initial determinations of the administrative agency are available and that no rational basis exists for different treatment for members of the bar. The short answer is that the Constitution has expressly placed the disciplinary function in the Supreme Court. Attorneys are officers of this Court and have been admitted to practice by this Court. Since the appointing and terminating authority is the highest body in the judicial branch of the government, a rational and reasonable basis for distinguishing the disciplinary hearing from

administrative proceedings is obvious. Mildner v. Gulotta, et al., 405 F. Supp. 182, 193-194 (E.D.N.Y. 1975), aff'd U.S. , 96 S. Ct. 1489, 47 L. Ed. 2d 751, 44 U.S.L.W. 3545 (1976).

The respondent has had a fair and meaningful hearing and his constitutional due process rights have been protected and preserved. His motions are denied.*fn3

II. THE PARMIGIANI AFFAIR

The respondent had unsuccessfully defended Angelo Parmigiani in a jury trial in the Mercer County Court against charges of falsely swearing to answers to interrogatories in a civil action, obtaining money by false pretenses and a conspiracy to defraud. State v. Angelo's Motor Sales, 125 N.J. Super. 200 (App. Div. 1973), aff'd sub nom., State v. Parmigiani, 65 N.J. 154 (1974). The trial was concluded in June 1972. A motion for a new trial was argued and denied on August 26, 1972.

This disciplinary proceeding arose out of a subsequent interrogation of the jurors conducted by investigators hired by the defendant Parmigiani.

Respondent was initially charged with a violation of R. 1:16-1 which reads as follows:

Except by leave of court granted upon good cause shown, no attorney or party shall himself or through any investigator or other person acting for him interview, examine or question any grand or petit juror with respect ...


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