On appeal from the Superior Court, Chancery Division, Morris County, reported at 165 N.J. Super. 84 (1978).
Lora, Antell and Pressler. Antell, J.A.D. (dissenting).
The judgment appealed from rescinding the contract of rabbinical employment between the parties is affirmed substantially for the reasons set forth in Judge Polow's opinion, 165 N.J. Super. 84 (Ch.Div.1978). We are persuaded that a rabbi's ethical and moral character is a matter which goes to the essence of his employment as a congregation's spiritual leader and educational supervisor and that a rabbi's recent disbarment as a lawyer occasioned by a series of ethical violations, his conviction of a crime of moral turpitude committed after the disbarment and his service of a custodial sentence in a federal penitentiary are facts so obviously affecting ethical and moral character as to leave absolutely no doubt of his obligation to have disclosed them.*fn1
ANTELL, J.A.D. (dissenting).
Defendant appeals from a summary judgment which granted rescission of his contract of employment as a rabbi on the ground that, even though not asked, he failed to volunteer that he had been earlier disbarred from the practice of law and convicted of crime. This determination was arrived at even though the trial judge was told by plaintiff during oral argument that in addition to nondisclosure as a reason for rescission, defendant's written resume for the position also contained an affirmative misrepresentation as to his whereabouts between 1970 and 1977. Whereas defendant therein stated that he was then employed as an educational administrator in Israel, plaintiff presumably could prove that he was actually imprisoned for part of that time in the United States. The judge responded that this information "beclouds the issue". He preferred that the case be decided on the basis of whether there was "an absolute duty to disclose" and whether defendant's failure to do so constituted "fraudulent concealment." Thus, although the result reached below could probably have been eventually placed on a sound factual footing, the trial judge resolved the controversy by unnecessarily establishing a far-reaching and, in my respectful judgment, an unsound legal precedent.
The essence of the decision under review is found in the trial judge's conclusion that
This holding is affirmed by this court on the reasoning that it rests on facts "obviously affecting ethical and moral character."
If the duty of disclosure is valid in this context it cannot, in principle, be limited to information relating to conviction and disbarment. It applies with equal logic to other derogatory
details of an applicant's background, such as alcoholism, drug dependence, certain forms of illness and other conditions influencing behavior. It is also applicable to crimes committed by an applicant for which he has not yet been apprehended or detected. These facts are as material to the applicant's capacity to serve as a previous conviction and disbarment, and I disagree that he must volunteer these facts at peril of being later held guilty of equitable fraud.
Furthermore, the duty would seem to apply to all such misconduct, no matter how remote in time. Defendant was disbarred in 1969 and his criminal conduct, for which he was convicted in 1974, occurred in 1971. The contract of hiring began in 1978. Must he always display these infamous emblems whenever he seeks employment as a rabbi? What would be the effect of a pardon? Or an expungement of the record? These hard ...