On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For Suspension -- Chief Justice Wilentz, and Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
This attorney ethics proceeding was initiated by a complaint filed with the District Ethics Committee. Respondent, Donald H. Mintz, was charged with discussing with a client the possibility of killing another individual. Respondent was also separately charged with discussing with this client the making of a false claim of physical inability to stand trial on pending charges. An additional charge accused respondent of stating that he could arrange for the sale of cocaine. The final charge alleged that respondent also advised his client how to jump bail and avoid detection.
The District Ethics Committee (Committee) determined that respondent's discussion of the possible murder and his statement concerning bail-jumping were in violation of DR 1-102(A)(5) and (6). The Committee concluded, however, that respondent's conduct was not unethical when he discussed a hypothetical sale of drugs and the possibility of a false claim that his client was not physically capable of standing trial. Following an appeal, the Disciplinary Review Board (DRB or Board) agreed with the Committee's findings with respect to the two instances of unethical conduct. The DRB also found that evidence concerning the conversations relating to the sale of cocaine and to making a false claim of physical inability to
stand trial was sufficient to support these charges. The Board concluded that respondent's actions revealed a "disturbing pattern" of unethical conduct. It recommended a public reprimand.
The ethical offenses of which respondent is accused all emanate from a conversation between respondent and one Anthony Cappolla, which took place in respondent's office on July 23, 1980. We determine from our review of the record that clear and convincing evidence supports the following facts, which accord substantially with the determinations made by the DRB.
Cappolla, who is now deceased, was being used as an informant in connection with investigations of organized crime activities being conducted by the Essex County Prosecutor and the Attorney General. Cappolla had an extensive criminal record and was gathering information for the police in an effort to induce them to drop a number of criminal charges then pending against him.
Respondent first met Cappolla 18 months earlier when he represented him in a municipal court case involving credit-card fraud. Cappolla had falsely informed respondent that he, Cappolla, had murdered someone and anticipated being charged. Sometime after the municipal court proceeding, Cappolla contacted respondent ostensibly to obtain advice with respect to a proposal to sell information to department stores regarding a means of uncovering merchandise theft. Thereafter, Cappolla asked respondent to represent him in this effort. Prior to meeting with Cappolla to discuss the proposed sale of information, respondent learned that these major stores routinely paid for such information. Respondent eventually discovered that these stores already knew about this particular method of theft, and, consequently, Cappolla received nothing for his information.
During their conversation concerning the proposed sale of this information, respondent mentioned that he had a "problem" with a person, but did not discuss the specific nature of his problem or the identity of the person whom it concerned. Cappolla then informed police authorities that respondent was interested in having someone murdered. It was agreed that Cappolla would be wired with a tape recorder during his next meeting with respondent. Cappolla was outfitted with a body recorder when he met with respondent on July 23, 1980.
The individual discussed at this meeting with respondent was Leonard Sherwood, a former client of the respondent. According to the testimony, in 1977 respondent had represented Sherwood and Sherwood's paramour, Linda Eib, who were charged with the sexual abuse of Eib's two young daughters. At that time Sherwood was separated from his wife, Jovina. Respondent advised Sherwood to return to the marital home pending the outcome of the criminal proceedings. Respondent was later informed by Jovina and her sons that Leonard Sherwood, who is approximately 6' 3" in height and weighs close to 300 lbs., had physically abused them and that this problem was exacerbated by his drinking.
Following the dismissal of the indictment against Sherwood and Eib, Jovina Sherwood and her sons left the marital home and went to live with her father. She and the respondent became romantically involved and when Leonard Sherwood learned of this, he began to threaten the lives of both the respondent and Jovina. Respondent gave this information to the police, who made a report concerning one such threatening and abusive conversation. On another occasion, Sherwood arrived at the home of Jovina's father and threatened respondent's life. These encounters and telephone threats became so frequent that at one point respondent wrote a letter to two prosecutors' offices advising them that if he was found dead, Sherwood was the likely suspect.
At the meeting with Cappolla on July 23, 1980, respondent discussed Cappolla's proposed deal to sell to department stores information concerning the theft scam. The two started talking about how a "certain attorney" could be murdered by a woman contract killer from Canada. Before the conversation became more detailed, respondent conducted a pat-down of Cappolla who, in turn, patted down respondent; the two laughed as they did this. Respondent told Cappolla he was not asking that this attorney be murdered, but as to the method by which the attorney could be killed. When Cappolla described the 23-year-old professional murderess, respondent replied, "Can you imagine what dynamite, what dynamite a female, a beautiful female killer would be." Cappolla shifted the conversation to discuss further respondent's "problem." Respondent did not tell Cappolla the name of his "problem," but did say it was the former husband of his girlfriend. Respondent told Cappolla that
[i]t would be easy as hell for your chick to get him out. All she'd have to do it [sic] get on his bus.
Respondent also told Cappolla that the body had to be found. However, he advised Cappolla that he did not want the murder to take place at that time, but would wait and see what the estranged husband did or said after he, respondent, married the ex-wife. Respondent told Cappolla that he had discussed killing Sherwood with his girlfriend, but they decided against it. However, he assured Cappolla that she would not know if he ...