On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None.
This matter is before us to consider the Decision and Recommendation of the Disciplinary Review Board (DRB or Board) determining that respondent, Thomas K. J. Tuso, was guilty of ethical misconduct deserving of disbarment. The Board rendered its determination on a motion for final discipline filed by the Office of Attorney Ethics. The basis for the motion was respondent's convictions in April 1977 of conspiracy to commit bribery and solicitation of misconduct and two counts of offering a bribe, contrary to the former criminal statute N.J.S.A. 2A:98-1, and 2A:93-6 (repealed L. 1978, c. 95, N.J.S.A. 2C:98-2).
Respondent was sentenced to three concurrent 12 to 18 month prison terms on May 31, 1977. In an unpublished opinion the Appellate Division on March 20, 1979, affirmed the conviction. Respondent's petition for certification to this Court was denied on May 30, 1979. 81 N.J. 270. Respondent was temporarily suspended from the practice of law on June 26, 1979. Thereafter, the Office of Attorney Ethics requested the DRB to recommend to the Supreme Court that respondent be disbarred. Respondent filed a notice of motion to transfer to the inactive status pursuant to Rule 1:20-9(d), which was denied.
The charges of ethics violations against respondent are evidenced by judgments of convictions. A judgment of conviction is conclusive evidence of respondent's guilt. In re Hughes, 90 N.J. 32, 36 (1982); In re Mirabelli, 79 N.J. 597, 602 (1979). A conviction of crime that encompasses the conduct constituting ethical wrongdoing obviates the need to make an independent examination of underlying facts in order to ascertain guilt. In re Bricker, 90 N.J. 6, 10 (1982); see In re Coruzzi, 98 N.J. 77 (1984). Respondent's convictions establish beyond dispute that he had engaged in illegal conduct that adversely reflected on his fitness to practice law. RPC 8.4(b) (DR 1-102(A)(3)).
In these circumstances the extent of final discipline to be imposed is the only issue to be determined. R. 1:20-6(b)(2)(ii). A number of factors bear upon this inquiry. Among these are the nature and severity of the crime and whether the crime was related to the practice of law. Mitigating factors, such as the attorney's professional reputation, prior trustworthy professional conduct, and general good character, are relevant. See In re Kushner, 101 N.J. 397, 400-01 (1986).
In considering appropriate discipline, the DRB, while accepting the conclusive effect of the criminal convictions, carefully reviewed the record to explore the nature and severity of the underlying crime. We have independently examined the record and based upon that review confirm the factual recapitulation of the Board.
The record reveals that in March 1975 respondent was contacted by a partner in an architectural firm that was seeking a contract with the Cumberland County Regional School Board in connection with construction of a regional high school. The architectural firm had received no response to a bid it had submitted and it had suspicion that another firm had engaged in "pay-offs." Respondent later undertook to represent this firm for an amount set at 5% of the firm's anticipated fee. Respondent then met with Clarence Custis, who was in charge of the school board's search committee. According to Custis, respondent was willing to share his legal fee. Custis contends that he became indignant at this suggestion and started to leave the room.
The DRB noted that respondent had a different version of this meeting:
According to respondent, Custis did not have a good reason for failing to interview the architectural firm. When respondent attempted to describe the qualifications of the firm, Custis commented at length on his financial problems and outstanding business debts. Respondent concluded that all Custis wanted to discuss was what he would obtain for himself if the architectural firm was interviewed. Respondent claimed he told Custis he did not want to get involved. When Custis started to ...