On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
Under some circumstances it might be difficult to determine precisely the point at which forceful, aggressive trial advocacy crosses the line into the forbidden territory of an ethical violation. But no matter where in the spectrum of courtroom behavior we would draw that line, no matter how indulgent our view of acceptable professional conduct might be, it is inconceivable that the instances of respondent's demeanor that we are called upon to review in these proceedings could ever be countenanced. The record lays bare a shameful display of atrocious deportment calling for substantial discipline.
A panel of the local ethics committee (Committee) prepared a carefully documented report of 60 pages, unanimously adopted by the Committee as its presentment charging respondent with unethical conduct. With equally meticulous care the Disciplinary Review Board (DRB) embodied its determination, with which we are in accord, in a Decision and Recommendation. Our independent review of the entire record leads us to the same conclusion as was reached by the DRB, whose full opinion we here set forth and adopt as our own.
This matter is before the Board based upon a presentment filed by the District V Ethics Committee. That presentment outlines misconduct by the respondent in two separate court proceedings. These matters may be summarized as follows:
I. COOLBAUGH v. VINCENTI (V-80-103E)
The respondent represented D.K., the defendant in a child abuse/neglect case involving the defendant's four children. Trial of this matter before the Superior Court, Union County, began on September 16, 1979, and continued to December. During this proceeding, respondent's in-court conduct, his out of court conduct towards lawyers, witnesses and bystanders in the courthouse, and his written communiques and applications relative to the D.K. proceeding reached a level of impropriety that mandated the filing of a 22 count ethics complaint.
The specific instances of in-court misconduct are fully detailed in the lengthy ethics complaint and, to a lesser degree, in the presentment filed by District V, and need not be fully detailed herein. It is sufficient to note examples of respondent's numerous improprieties here. He was frequently sarcastic, disrespectful and irrational, and accused the Court on numerous occasions of, inter alia, collusion with the prosecution, cronyism, racism, permitting the proceedings to have a "carnival nature", conducting a kangaroo court, prejudging the case, conducting a "cockamamie charade of witnesses" and barring defense counsel from effectively participating in the proceedings, conducting a sham hearing, acting outside the law, being caught up in his "own little dream world", and ex-parte communications with the prosecutor together with other equally outrageous, disrespectful and unsupported charges. These and other comments were made frequently throughout the proceedings and continued at length.
The Committee specifically found that the respondent's conduct exhibited a "constant and deliberate disregard of the minimum standards of conduct expected of a member of the bar" through his repeated discourteous, insulting and degrading verbal attacks on the judge and his rulings, and that these repeated discourses substantially interfered with the orderly process of the trial. The Committee discounted respondent's claim that his conduct was the result of zealously protecting his client's cause as well as the emotional undercurrent of the litigation. To the contrary, the Committee concluded that the
pervasiveness of the irrational, intemperate and improper conduct compelled the determination that the respondent's perception of the lawyer's role and his relationship to the court was, at the least, misguided. The Committee concluded that the respondent, in his court appearances, was guilty of unprofessional conduct in violation of DR 1-102(A)(5) and (6), DR 7-106(C)(6), and DR 8-102(B) [prohibiting, respectively, conduct that is prejudicial to the administration of justice, conduct that adversely reflects on one's ability to practice law, undignified or discourteous conduct that is degrading to a tribunal, and the knowing making of false accusations against a judge].
In addition to verbal attacks in the courtroom, respondent engaged in collateral actions that the Committee determined were designed to gain advantages in the pending litigation by demeaning and harassing both the judge and opposing counsel. This conduct includes the forwarding of a letter to both the Deputy Attorney General representing the Division of Youth and Family Services (DYFS) and the Assistant Public Defender who was the statutory law guardian to the four children. Within that letter, respondent demanded that these attorneys remove themselves from the case because of what he perceived to be their breach of confidentiality of the case. He further advised that he had asked their superiors to remove them from the case. He did, indeed, forward that letter to both the Attorney General and the Public Defender. The charged improprieties had no basis in fact. To the contrary, any improprieties that occurred at the meeting in question actually were of his doing. See discussion of out-of-court behavior below.
In another instance, the respondent reviewed a witness's files while she was testifying and failed to return them thereafter. The Deputy Attorney General located the files on the counsel table and returned them to the witness, at the witness's request. The respondent, in open court, then accused the Deputy Attorney General of stealing the files, and accused her of being a "bald-faced liar", and "a thief, a liar and a cheat". He also filed an ethics complaint against the Deputy Attorney General for
her actions. The Committee concluded that in these two incidents, respondent was in violation of DR 7-102(A)(1) and (5), and DR 7-106(C)(6) [governing the representation of a client within the bounds of the law and proscribing certain trial conduct].
Even more egregious were the respondent's activities with regard to evaluation of respondent's client by a court appointed psychologist. Respondent's client had paid $300 to Dr. Bennett, the psychologist, at the time of evaluation. Although the trial judge had arranged the appointment, he did not discuss compensation with Dr. Bennett until after respondent objected to his client being charged. The Judge agreed that the State should pay the fee, and on November 26, 1979, so advised the psychologist. When Dr. Bennett appeared to testify on November 29, 1979, he gave respondent a check for $300, thus returning the fee inadvertently received from the respondent. Despite the fact that the misunderstanding regarding payment for the evaluation had been resolved, respondent proceeded to subpoena the trial judge to testify and moved for the Judge's disqualification, stating that the matter involved "* * * a possible collusion between a witness (and) the Court". Additionally, he called Dr. Bennett an "extortionist psychologist", and alleged an appearance of impropriety since "* * * the individual that sits on the stand extorted money from my client on the advice of this Court".
In addition to making these claims in open court, in his appeals to the Appellate Division and the Supreme Court, the respondent further alleged that the trial judge had participated in extortion as well as cronyism, bias, prejudice, racism and religious bigotry during the trial, again without any basis in fact.
The respondent's improprieties continued. The respondent directed the following letter, dated December 13, 1979, to the trial judge, the text of which is set forth below:
I wish to extend my sincerest good wishes for your speedy recovery from the obvious breakdown you suffered in chambers yesterday, Tuesday, December 11, 1979.
Hopefully, with some rest and relaxation from your most taxing schedule, you will be in a position to resume your judicial duties more appropriately than exhibited on the eleventh.
If, however, you feel somehow justified in pressing your demand for written recommendations, I must supply them, if for no other purpose than to demonstrate my client's continuing bona fides herein.
I must admit, with no small degree of trepidation, that we have no confidence in your rationality vis-a-vis this case. Your activities on the eleventh and throughout the trial clearly demonstrate an irrational predisposition to chastise Mr. D. K. and defense counsel. The cronyism I wrote of in our motion for new trial continues unabated.
You have simply closed your mind to our position and have retreated into a dream world not unlike the somnambulist in that early German classic story at the turn of the century.
How do we make any kind of recommendations to you while you sleep-walk through your judicial duties. How does one get through to you.
Regrettably, we have no faith in your ability to preserve your objectivity herein, for whatever reason(s) I don't know.
Mr. D. K.'s recommendations as to disposition are as follows without detailing the ...