The central issue raised in this matter is whether a panel constituted pursuant to the Supreme Court's authority to discipline members of the bar can voluntarily provide to a county prosecutor records reflecting criminal conduct on the part of an attorney when those records were acquired during the course of an ethics investigation. There are no reported decisions on the issue.
Defendant Howard Stroger, a suspended New Jersey attorney, was indicted for embezzling client's funds in March 1981. The indictment stemmed from records being turned over to the Morris County Prosecutor's Office by Central Ethics pursuant to direction of the Disciplinary Review Board. See R. 1:20.
Stroger moves to "suppress evidence obtained as the result of an illegal search and seizure." His brief in support of the motion essentially urges:
1. An illegal obtaining of evidence by the prosecutor and a breach of the confidentiality requirements of the court rules regulating discipline of state bar members;
2. A violation of defendant's Fourth, Fifth and Sixth Amendment rights, with reliance on Sixth related to failure to provide notice and opportunity to be heard on the turnover.
Sometime in March 1980 complaints were received by Central Ethics concerning Howard Stroger's conduct as an attorney. A demand was made of Stroger by Collette Coolbaugh, Assistant Director of the Administrative Office of the Court in charge of the Division of Ethics and Professional Services, to produce his books and records pursuant to court rule. The date set was March 20, 1980. A new date was set for April 14, 1980 at Stroger's request. It was subsequently reset for May 1, 1980.
On April 11, 1980 Lawrence Litwin, the secretary of the District Ethics Committee, received a letter from Genevieve Radziewicz, executrix of the estate of Robert Paczkowski, complaining about the handling of the estate by Stroger and noting the residuary beneficiary, the Red Cross, had not received its money, approximately $90,000.
Litwin, by letter, assigned the case to Thomas Curtin, an Ethics Committee member, for investigation. At the same time he sent a personal and confidential letter to the Morris County Prosecutor concerning the allegations of the Radziewicz letter, noting that "The Committee brings this matter to your attention inasmuch as there may be criminal overtones." Litwin, due to the "astounding allegations," considered himself obligated by the Canons of Ethics to notify the prosecutor. Before sending his letter to Prosecutor Manahan, he had a conversation about its contents. He later inquired about its receipt.
Thomas Curtin interviewed Mrs. Radziewicz and received from her estate documents, savings accounts and passbooks which were turned over to the prosecutor by Central Ethics on
August 4, 1981. After some difficulty he also met with Stroger, at which time he was informed Stroger was being represented by an attorney who had advised him not to discuss the matter. Curtin looked at the trustee account statement of Stroger for March 1980 and, finding a balance of approximately $16,000, asked if client's funds were kept in any other place. Stroger responded in the negative.
Curtin on April 29 prepared an affidavit and filed it with Central Ethics. He provided a copy of the affidavit to Mrs. Radziewicz and Mr. Sprague of the Red Cross. In his cover letter to those people, carbon copies of which went to the prosecutor without the affidavit, he advised both parties to retain attorneys. Mrs. Radziewicz did. She hired attorneys, who instituted proceedings on her behalf which resulted in a settlement. In the verified complaint Mrs. Radziewicz noted her allegations to the Ethics Committee, the appointment of Curtin, Curtin's finding that the trust account statement of Stroger reflected a balance of only $16,000 and Stroger's statement that he maintained no other trustee accounts.
On May 1 Samuel Gerard, an accountant with the Administrative Office of the Courts, visited Stroger's office to audit his records pursuant to the prior demand. Curtin and David Cramp, chairman of the District X Ethics Committee, were present. Gerard requested and Stroger consented, after consulting with his attorney, to turn over for examination the trustee account ledger, bank statements and checks. These records were taken to Trenton and certain of them were subsequently turned over to the prosecutor on October 16, 1981.
On May 1, at about 3 p.m., Stroger was served with an order of the Supreme Court temporarily suspending him from the practice of law, staying disbursements from his trustee and business accounts and requiring him to show cause on May 6, 1980 why the suspension and restraints should not be continued.
On May 6 an order, consented to by Stroger's attorney, was entered continuing his suspension from ...