On an Order to Shaw Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz and Justices Pashman, Handler and Pollock. Dissenting -- Justices Schreiber and O'Hern. Schreiber, J., dissenting. Justice O'Hern joins in this opinion.
Attorney John E. Hughes has pleaded guilty to federal criminal charges of bribing a public official and state charges of forging public documents. These extremely serious infractions demand professional discipline. At the same time, the highly unusual nature of the events surrounding these illegal acts prompts us to examine the factual circumstances with great care.
In the federal proceeding, Hughes pleaded guilty to a charge of violating 18 U.S.C. § 201(f). He paid $1,000 to an Internal Revenue Service agent to induce him to remain silent about possible criminal violations by Hughes. In the state proceedings, Hughes pleaded guilty to altering and falsifying records of the Essex County Register to indicate that certain federal tax liens against his parents had been released, in violation of N.J.S.A. 2A:136-1. He also pleaded guilty to uttering and publishing as true to the Essex County Register two false and forged Certificates of Release of Federal Tax Lien in the name of his parents, totalling more than $12,000, in violation of N.J.S.A. 2A:109-1.
The federal guilty plea resulted in a suspended 18 month sentence and two years probation commencing September 18, 1979. Hughes received identical sentences for each count of the state indictment to which he pleaded guilty. The state probation ran concurrent with the federal probation.
Both the federal and state matters arose from the same incidents. Hughes practiced law with his father from 1967 through February of 1976. At that time, his father pleaded guilty to failure to file and pay certain federal taxes and was suspended from the practice of law for six months. Following his father's death in November of 1976, Hughes discovered that his father had converted money from a client's estate that should have been used to pay transfer inheritance taxes. Because
of this conversion, the estate owed a substantial sum to the State in unpaid taxes.
Although he had no legal duty to do so, Hughes personally paid nearly $40,000 over a period of time to the State to satisfy the estate's tax liability. His alleged motive was to avoid the adverse publicity for his family that might result from claims by the estate against the Clients' Security Fund arising from his father's misappropriation.
While still making those payments to the State, Hughes learned of certain federal tax liens on real estate then owned by his mother just as she was about to close on the sale of the property. Those liens had been imposed because his father had failed to pay certain federal taxes. Although he had no legal obligation to do so, Hughes wanted to pay off the tax liens himself. His motive was to protect his mother from knowledge of the extent of his father's wrongdoing.
Since he did not have the resources to pay off both the tax lien and the estate taxes, Hughes sought to arrange with the Internal Revenue Service for either settlement of the tax liens or a schedule of payment. When he was unable to do so, he forged the Federal Tax Lien Releases. Hughes claims that it was his intent to reinstate the liens and pay them off when he was able to do so. The result of his filing the forged releases was that any purchaser from his mother would be unaware of the lien. The purchaser, however, might someday find that the title to the property was not free and clear.
Some time later, the Internal Revenue Service sent an agent equipped with a listening device to investigate the case. The agent recorded a $1,000 bribe offer by Hughes so the agent would ignore the forged releases. Hughes subsequently paid $1,000 to the agent.
On the basis of the two criminal convictions, the District V Ethics Committee (Essex County) found that Hughes had violated DR1-102(A)(1), (3), (4), (5), (6), and DR7-102(A)(3), (4), (5), and (8). Upon a review of the full record, the Disciplinary
Review Board determined that the Committee's conclusions were supported by clear and convincing evidence.
We accept a criminal conviction as conclusive evidence of guilt in disciplinary proceedings. In re Rosen, 88 N.J. 1, 3 (1981); In re Mirabelli, 79 N.J. 597, 602 (1979). Although we will not retry the question of guilt, the underlying facts of the conviction are relevant to the determination of the appropriate discipline to be imposed. In re Rosen, 88 N.J. at 3.
Bribery of a public official and forgery of public documents are among the more serious offenses an attorney can commit. They strike at the heart of the attorney's honesty and trustworthiness as an officer of the court. Without more, these acts demonstrate unfitness to practice law. For these reasons the Disciplinary Review Board recommended that Hughes be disbarred.
In setting the appropriate discipline we are not interested in punishing the attorney. That is the province of the criminal law. The primary ...