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In re Biasi

Decided: April 2, 1986.

IN THE MATTER OF THOMAS S. DI BIASI, AN ATTORNEY AT LAW


On an order to show cause why respondent should not be disbarred or otherwise disciplined.

For suspension -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

[102 NJ Page 152] Respondent entered a plea of guilty to a federal accusation of misapplication of bank funds in violation of 18 U.S.C.

ยง 657, an offense characterized as a misdemeanor under federal law. The court sentenced respondent to a suspended term of one year, three-years probation, and imposed a fine of $1,000.

Subsequently, the Office of Attorney Ethics made a Motion for Final Discipline Based Upon a Criminal Conviction pursuant to R. 1:20-6(b)(2)(i). Following oral argument, the Disciplinary Review Board agreed that respondent had engaged in illegal conduct that adversely reflected on his fitness to practice law and recommended that respondent be suspended. The members of the Board were not unanimous in their recommendation, the individual votes varying from one year to no suspension at all.

Our independent review of the record leads us to the conclusion that respondent has been guilty of unethical conduct in the matter charged.

First, we accept a criminal conviction as conclusive evidence of guilt in disciplinary proceedings. In re Rosen, 88 N.J. 1, 3 (1981). The underlying facts of the conviction are relevant to the determination of the appropriate discipline to be imposed. Id. at 3.

The circumstances of respondent's involvement are set forth in the record. He was the closing attorney for a partnership with respect to a $2.1 million mortgage loan covering a three-story building in Union City, New Jersey. A lease had been prepared by an accountant for the partnership that purported to show that a portion of the third floor was under a binding lease. This lease had been submitted to the lender before the respondent entered the matter.

Prior to the closing, the respondent learned that the lease was false. Nonetheless, he yielded to the request of his client not to reveal this fact to the lender on the grounds that the lease would soon become reality and that the lender was, in any event, relying upon the personal guarantee of the principals of the partnership.

The principles that we apply in cases of criminal convictions are as follows:

Our goal in these hearings is to protect the interests of the public and the bar while giving due consideration to the interests of the individual involved. In re Mischlich, 60 N.J. [590] at 593. Similar to a sentencing judge in a criminal matter, we take into consideration many factors in determining the proper discipline to be imposed. Cf. N.J.S.A. 2C:44-1. We consider the nature and severity of the crime, and whether the crime is related to the practice of law. We consider "evidence which does not dispute the crime but which shows mitigating circumstances [relevant to] the issue of whether the nature of the 'conviction merits discipline and, if so, the extent thereof.'" In re Mischlich, 60 N.J. at 593 (citations omitted); see In re Rosen, 88 N.J. [1] at 3; In re Mirabelli, 79 N.J. [597] at 601; In re ...


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