On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz and Justices Pashman, Clifford, Handler, Pollock and O'Hern. Opposed -- None.
[90 NJ Page 7] The respondent was convicted of several criminal charges based on two separate State Grand Jury indictments. Under Indictment SGJ 51-78-4 defendant was found guilty by a jury of conspiracy to obstruct justice in violation of N.J.S.A. 2A:98-1(h) and 2A:98-2, of using a corporation to commit fraud in violation of N.J.S.A. 2A:111-14, and of two instances of false swearing in violation of N.J.S.A. 2A:131-4. On April 3, 1980, respondent received an aggregate sentence of a minimum term of one year and a maximum term of two years in the New Jersey State Prison and a fine of $1,000 on each count, in
addition to two years probation upon his release. Respondent also pleaded guilty to the first count of a three-count State Grand Jury indictment, SGJ 47-78-8, which charged him with using a corporation to defraud in violation of N.J.S.A. 2A:111-14. On May 19, 1980, he was sentenced on this charge to a custodial term identical to and concurrent with the sentence imposed under Indictment SGJ 51-78-4.
Following his parole and release of September 1980, the District V Ethics Committee processed ethics complaints against respondent based upon these criminal convictions. The Committee determined that respondent was guilty of unethical conduct and issued a presentment. While the presentment did not specifically enumerate the disciplinary rules that respondent violated, it is clear that it incorporated the statement of charges formally brought against him, which included charges for violating DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule); DR 1-102(A)(3) (a lawyer shall not engage in illegal conduct that adversely reflects on his fitness to practice law); DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law). The matter was then heard by the Disciplinary Review Board.
The Board held a hearing on November 8, 1981. At that hearing respondent presented matters in extenuation of his criminal conduct. As to the charges which resulted from his convictions under Indictment SGJ 51-78-4, respondent contended that he was innocently brought into a criminal scheme concocted by codefendants, that he was ignorant of the criminal implications of his conduct, and that he had endeavored to secure adequate payment to the victim of the fraud. He also asserted that his wrongful conduct preceded his admission to the bar. As to the charges to which he pleaded guilty under Indictment SGJ 47-78-8, he contended that he did not have the financial or emotional resources to defend himself.
The Disciplinary Review Board found these reasons for excuse or leniency unpersuasive. The criminal events that were the subject matter of the disciplinary proceedings each involved concerted and premeditated schemes to defraud. In the case involving Indictment SGJ 51-78-4, respondent and others obtained title to two parcels of land in Morris County through fraud and deception. Respondent engaged in misrepresentations to an elderly person, Constance Lucille Smith, who had an ownership interest in the property. As a result, defendants, through a corporate structure, obtained a quit claim deed for the property at a small price. Their purpose was to establish an ownership claim to the property, which was essential to the land development plans of a third person. The scheme was to obstruct the land development and thereby secure for themselves a generous price for the land. Defendants were successful and eventually obtained $95,000 in settlement of lawsuits challenging their ownership. Throughout these proceedings respondent resorted to repeated acts of false swearing, fraud and deception. Even his payment of additional moneys to Ms. Smith was a belated tactic designed to suggest that she had not been fraudulently or wrongfully ousted from her title. In truth, the payment to Ms. Smith, ostensibly in her capacity as a partner or stockholder in defendants' corporation, was a ruse to disguise the original deception practiced upon her.
Similarly, in connection with the charge to which respondent pleaded guilty under Indictment SGJ 47-78-8, respondent, as an employee or agent of a corporation, obtained title to real estate in Ocean County through fraud and deception. He engaged in a misrepresentation that heirs to the record owners of the property had been contacted or notified, when this was not done. He then fraudulently used his asserted ownership interest, through a corporation, to extract a high price for the land from third persons whose development plans were otherwise blocked by respondent's bogus title claim.
As noted by the Disciplinary Review Board, these judgments of conviction are conclusive evidence of respondent's guilt and obviate the need for any independent examination of the underlying facts to ascertain guilt. In re Rosen, 88 N.J. 1 (1981). Regardless, the facts are not vulnerable to any serious challenge. They are confirmed by the criminal convictions and, to the extent that our independent assessment of these facts is relevant to discipline, the underlying facts are buttressed by the materials set forth in the presentence investigation reports and referred to generally in the hearings below.
The Disciplinary Review Board recommended that respondent be disbarred. It quite properly noted that while some of the criminal acts engaged in by respondent preceded his admission to the bar, the criminal conspiracy and overt acts in furtherance of it continued for a considerable period of time after his admission to practice law. See In re Franklin, 71 N.J. 425 (1976).
In weighing the gravity of respondent's conduct justifying the ultimate professional sanction of disbarment, the Board took particular note of the reasons expressed by Judge Egan for imposing a state prison custodial sentence upon respondent. The judge perceptively described ...