On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[95 NJ Page 598] Respondent, Harold I. Garber, represented the sole eyewitness to a murder, whose account of the crime had resulted in an indictment for murder against Philip Leonetti. Later, the witness, with the advice of respondent, recanted his identification of Leonetti as the murderer, leading to the dismissal of the indictment. The circumstances surrounding these events gave rise to a presentment against respondent filed by the District I Ethics Committee (Committee). Following hearings, the Committee determined that respondent had engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5), and further, had accepted employment in the face
of personal interests that could impair his independent professional judgment, contrary to DR 5-101(A).
The Disciplinary Review Board (DRB) declined to accept this determination of the Committee. Nonetheless, it concluded "that the respondent's conduct resulted in a definite appearance of impropriety, and, in so doing, constituted misconduct which adversely reflects on his fitness to practice law. DR 1-102(A)(6)." The DRB recommended that respondent be publicly reprimanded. Two members of the DRB dissented, concluding that the respondent had not engaged in unethical conduct.
This Court issued an Order to Show Cause why respondent should not be disbarred or otherwise disciplined. In the exercise of our jurisdiction in disciplinary matters we now modify the decision of the DRB. The conduct of respondent constituted ethical infractions in violation of DR 1-102(A)(6), as found by the DRB, and of DR 1-102(A)(5) and DR 5-101(A), as found by the Committee. Further, respondent violated DR 5-105(A), for not "refusing to accept or continue employment if the interests of another client may impair the independent professional judgment of the lawyer."
We have engaged in an independent examination of the record and conclude that the findings of fact set forth in the decision of the DRB were clearly and convincingly established by the evidence presented at the hearings in this matter. These facts demonstrate that a "gangland style" murder of an individual named Guiseppi (Pepe) Leva had occurred outside Price's Pit, an Atlantic County landfill, in the summer of 1977. Earl Wayne DeVault, a sanitation truck driver, was the only known witness. The Atlantic County Prosecutor's Office apparently did not realize the existence of this witness until nearly one year after the murder, when the file was again reviewed. DeVault was then questioned and he identified Philip Leonetti as the murderer. Leonetti was subsequently indicted for the murder.
Police protection was assigned to DeVault upon the issuance of the indictment.
Leonetti was arrested on August 25, 1978, and his picture appeared in the Atlantic City Press the following day, accompanied by an article that described him as "an alleged associate of organized crime figures." On August 26 or 27, DeVault advised two detectives from the Atlantic County Prosecutor's Office that the picture of Leonetti in the paper did not look like the person he saw at the murder scene. However, despite his qualms concerning the newspaper photograph, DeVault confirmed his prior identification of Leonetti to the detectives. In light of this confirmation, as well as a subsequent confirmation during an interview between DeVault and the assistant prosecutor in charge of the case, DeVault's confusion over the newspaper photograph was not regarded by the prosecutor as significant.
DeVault thereafter discussed with his employer, Seymour Renshon, his concern that the man pictured in the newspaper was not the individual he saw at Price's Pit on the day of the murder. Renshon then spoke with his paramour, who was a close friend of respondent. She in turn contacted respondent and requested that he do her "a favor and help out a friend of hers." Following this conversation, Renshon telephoned respondent.
The purpose of Renshon's call obviously related to DeVault's critical status as the sole identification witness in the Leonetti murder prosecution. This can be readily inferred from the elaborate plans made for a meeting between respondent and DeVault. The meeting was scheduled for that same afternoon, on August 30, 1978, at the Azzi Insurance Agency, rather than the respondent's law office; further, respondent's secretary and an associate were instructed to attend the meeting and to bring a typewriter, a tape recorder and a camera. DeVault was also instructed to ask for a Mr. Sausto when he arrived at the
insurance office so that the police officers assigned to protect DeVault would not realize that he was meeting with respondent.
The meeting took place according to plan. DeVault advised these police officers that he was going into the insurance office to pay a bill. Once DeVault was in the insurance office without his police guard, respondent tape recorded a statement wherein DeVault recanted his prior identification of Leonetti. Respondent then had DeVault sign a statement indicating that he was not coerced into making the tape recording or signing the statement. This statement was witnessed by respondent, his associate and his secretary.
"Several days later," according to the DRB decision, "respondent turned the tape recording over to his friend and client, Nicodemo Scarfo, who is [Leonetti's] uncle and reputed to be a highly placed organized crime figure." Respondent claimed that the reason he took the tape to Scarfo instead of Leonetti's attorney was that there had been a substitution of defense counsel and he "did not want to burden [the original defense attorney] by asking him the name of substituted counsel." However, the DRB concluded that respondent was aware of the identity of the substituted counsel because the substitution was "a matter of public record."
Respondent had no further contact with his client DeVault for approximately two and one-half months following the August 30 meeting. Nevertheless, during this time respondent attended several pretrial hearings in Leonetti's murder case, where he was seen with the defendant Leonetti. He also received from Scarfo discovery materials in the case. Further, although respondent claimed that he intended to provide a copy of the tape to both the defense counsel and the prosecutor, the tape was not delivered to defense counsel until November 8, 1978. The prosecutor did not obtain the tape until November 16 or 17, 1978.
After the delivery of the taped recantation, respondent arranged with Renshon for another meeting with DeVault. This
took place on Sunday, November 19, 1978, at the premises of Renshon's company, ABC Refuse, where DeVault worked. Although respondent had neither seen nor conferred with his client DeVault since their single meeting the previous August, in a matter of just a few minutes DeVault signed the following handwritten statement:
Mr. Garber has been my attorney since Aug/78
I approve of his giving the tape in question to both parties.
I want him to represent me in the Leonetti matter
I do not wish to speak to anyone about this matter without Mr. Garber present.
Promptly upon obtaining DeVault's signed statement, respondent telephoned the judge assigned to pretrial hearings in the murder prosecution. Respondent advised the judge that he represented DeVault, and that he was being kept from his client by the Prosecutor's Office. The judge then ...