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In re Milita

Decided: May 22, 1985.


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, Garibaldi, and Stein. Opposed -- None.

Per Curiam

This matter arises from a report of the Disciplinary Review Board (DRB) recommending a two-year suspension of respondent. The recommendation is based on its finding of an attempted offer to bribe an assistant prosecutor and of the creation of a false impression that he was the attorney for a State's witness when, in fact, he represented another party and wanted to elicit evidence favorable to that client. Based upon our independent review of the record, we are not clearly convinced that the respondent intended to offer a bribe to the prosecutor involved. We are, however, clearly convinced that the conduct was highly unprofessional and was unethical and prejudicial to the administration of justice, reflecting adversely on respondent's fitness to practice law. In addition, we agree that the respondent's conduct in speaking to a hostile witness involved an unethical concealment of his true purpose in interviewing the witness. We modify the discipline recommended to a six-month suspension.

Respondent was admitted to the bar on June 12, 1980 but did not commence private practice until 1981. He was a single practitioner. A good deal of his work was criminal defense. He had both private clients and public defender assignments as a pool attorney.

He was retained privately, in 1982, to represent an accused on several counts of burglary and possession of stolen property. On September 15, 1982, respondent telephoned an assistant county prosecutor to discuss this particular criminal case as well as others that were scheduled for pretrial conference on the following day, the 16th of September. Respondent had had many similar plea conferences with the same assistant prosecutor.

When the discussion turned to the particular defendant, the prosecutor said that there was no change in the State's earlier position: any plea bargain would have to contemplate a prison sentence with a period of parole ineligibility. It is at this point that the conversation becomes critical. The prosecutor stated that Mr. Milita responded by asking whether the prosecutor would consider an "indeterminate" sentence for "a thousand dollars," to be given to the prosecutor's favorite charity.

The assistant prosecutor concluded that the respondent was suggesting that money would be paid for a more lenient recommendation by the State. His immediate response to respondent's statement was that his favorite charity was the State of New Jersey and that, in any event, this criminal defendant was beyond the statutory age limitation to receive an indeterminate term. The discussion turned to other matters.

Near the end of the conversation, the prosecutor raised the topic again and asked respondent just what he had in mind when he mentioned the $1,000 figure. The prosecutor stated that he went on at some length about his hopes that Mr. Milita was not suggesting what appeared to him to be a major impropriety, informing Mr. Milita that such suggestions could not be entertained for as much as a fraction of a second by the prosecutor.

The prosecutor states that at this point respondent explained that in his discussions with his client the client would frequently tell him there would be an extra $1,000 in his fee if he could do better than the offer he already had and that respondent was just passing on the suggestion to him, realizing that his favorite charity was the State of New Jersey.

Respondent, on the other hand, maintained that he told the assistant prosecutor that his client was extremely upset because the State would not change the plea offer. When the client offered him the $1,000 bonus, the respondent said that he told his client that he did not appreciate the offer and that as

far as he was concerned, the client could give the money to charity.

The assistant prosecutor immediately conferred with the county prosecutor and chief of county detectives. The county prosecutor authorized that a listening device be employed in order to record the next conversation. The assistant prosecutor was accordingly outfitted with a tape recorder for the scheduled September 16, 1982 conference with respondent. At this conference, the assistant prosecutor took the respondent aside into a private room. After discussing several other pending cases, the assistant prosecutor renewed the discussion of the burglary case. Portions of the transcript of that conversation follow.*fn1

KC: Well, what about this other situation here. Now that we're off the telephone. It's rather difficult to have discussions like you were beginning to have on the phone.

JM: You know I was kidding.*fn2

KC: Well, what did you have in mind?

JM: You can't give him indeterminate time obviously (inaudible) I told him that I felt that the bottom line, the lowest I could see you going would be either four, eight with a 4 stip, seven minimum or twelve three, whatever we had discussed before, but he's probably figuring it's a five years straight.

KC: With no minimum.

JM: No minimum.

KC: He's pushing you pretty hard on it?

JM: Huh?

KC: Is he pushing you pretty ...

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