On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Justices Mountain, Pashman, Clifford, Schreiber and Handler. Opposed -- None.
These disciplinary proceedings originated in a complaint filed March 22, 1978 by the Union County Ethics Committee. An Answer was filed in due course and the matter was processed thereafter by the District Ethics Committee for District XII (R. 1:20 covering discipline of members of the bar having become effective on April 1, 1978). That Committee's action was prompted by respondent's guilty plea, on November 9, 1977, to a State Grand Jury accusation charging him with bribery in violation of N.J.S.A. 2A:93-6.
At the time of his plea and during the proceedings before the local committee respondent admitted that he received the sum of $2500 from one Robert J. Delaney (known to respondent as Robert Convery), an undercover law enforcement official. The money was paid on behalf of respondent's client, Patrick J. Kelly, for the ostensible purpose of bribing a named Union County Assistant Prosecutor to procure a non-custodial sentence with respect to certain criminal charges then pending against Kelly in Union County Court.
On March 2, 1978 respondent was sentenced to New Jersey State Prison for a maximum term of three years and a minimum term of one year. The court suspended execution of the sentence, placed respondent on unsupervised probation for a period of three years conditioned upon respondent's making restitution to the State of New Jersey for the cost
of its investigation, and assessed a fine of $1,000. In imposing sentence the court took into account the serious emotional, physical and psychological problems suffered by respondent and of the impact upon him of a short-lived and tumultuous second marriage, despite which his support and affection for his seven children remained steadfast. It further observed that there was no indication of any actual attempt to bribe the Assistant Prosecutor, but rather that the bribery story was used as a ploy to extract a large fee from the client.
Upon the entry of the guilty plea this Court temporarily suspended respondent from the practice of law, effective January 20, 1978.
We amplify the background and details of respondent's involvement by resorting to the Findings and Conclusions of the District Ethics Committee as follows:
In explanation of his present involvement, Mr. Mirabelli testified that Robert J. Delany (which was apparently an alias being used by a state police undercover agent) came to him a few years ago to have a corporation formed for purposes of running a trucking business. Patrick J. Kelly was apparently an employee of that trucking company although not aware that Delany was an agent of the state police. In any event, in 1975, Kelly was indicted by the Union County Prosecutor's Office for involvement in certain alleged mortgage transactions. Kelly asked respondent to represent him in that matter in October of 1975. According to respondent, his fee was represented to be somewhere between $10,000.00 and $15,000.00 and he asked for a $2,500.00 retainer. Kelly produced the sum of $1,500.00. Thereafter, negotiations to work out a plea bargain were conducted by respondent in behalf of Kelly and according to respondent he continued to press Kelly for continuing payments to cover the legal services being rendered. By the middle of January, 1977, respondent felt that he could work out a recommendation of a non-custodial sentence for Kelly providing Kelly would agree to make restitution. Kelly agreed to restitution but he wanted it on terms. Respondent was unsure whether or not these could be arranged. In the meantime, respondent continued to worry about his inability to collect what he felt was reasonable payment for the services he was rendering. According to respondent, he then represented to Kelly that by paying $2,500.00 to the Assistant Prosecutor in charge of the case, a non-custodial sentence could be arranged. This the respondent
testified was an untruth which he concocted for the sole purpose of effecting payment for his legal services. He was apparently confident that the non-custodial sentence could be worked out and by representing to Kelly that a bribe was necessary he could realize the sum of $2,500.00 which he would keep in payment for his services. This information was conveyed to Kelly who said that he could arrange for the payment of the bribe through his employer, Delaney. Respondent then arranged to meet Delaney in the corridor of the Union County Court House on February 15, 1977 where he received the sum of $2,500.00 in cash. It was not until months later that respondent found out that Delaney was in fact a state police agent who exposed the entire scheme.
While it was willing to accept this recitation in the light most favorable to respondent, the District Ethics Committee was nevertheless troubled by one ...