On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz, and Justices Handler, Pollock and Garibaldi. Dissenting -- Justice O'Hern. O'Hern, J., dissenting.
This matter arises out of an attempt to bribe a state policeman into dropping charges against a criminal defendant with ties to organized crime. The proposed means of effectuating the ruse wa through the filing of a false police report and the failure of the policeman to identify the defendant. In the present case, the Honorable Charles Joelson, sitting as a Special Ethics Master (the Master), made detailed findings of fact, which were reviewed by the Disciplinary Review Board (DRB). Other facts are recounted in the companion case, In re Conway, 107 N.J. 168 (1987), and in State v. Conway, 193 N.J. Super. 133 (App.Div.), certif. denied, 97 N.J. 650 (1984). For our purposes, we shall summarize some of the background information.
Respondent was a long-time friend and business partner of Donald Conway in a building in Hackensack in which their respective law offices were located. He also was a friend of the Barcellona family and had performed legal services for Joseph Barcellona, who owned the Surf Club in Ortley Beach, Dover Township, and Joey's Place, a restaurant in Clifton. In addition, respondent was an old friend of Joseph Lazaro, who was Joseph Barcellona's cousin and the nephew of Sam Lazzara. Lazaro also was a sergeant in the state police and a friend of another state trooper, Denis McDowell.
Around 3:00 a.m. on July 19, 1981, Philip Lombardo, Jr. became involved in an altercation at the Surf Club with McDowell, who was off-duty. McDowell filed charges against Lombardo for possession of tear gas, N.J.S.A. 2C:39-4, simple assault, N.J.S.A. 2C:12-1, and resisting arrest, N.J.S.A. 2C:29-2. At the time, Lombardo threatened McDowell by asserting that he was a member of an organized crime family, subsequently identified as the Vito Genovese family. McDowell arrested Lombardo, who retained Conway as his lawyer.
On July 21, Lazaro called McDowell and asked him to come to Barcellona's apartment at the Surf Club. While at the apartment and before Barcellona arrived, Lazaro told McDowell that Lombardo was "a member of the Vito Genovese family" and McDowell understood "that there might be some danger to my family." The next evening, July 22, 1981, Barcellona called McDowell to set up a meeting on July 24. McDowell reported the events to a superior in the State Police, who advised him to record future conversations with Barcellona. Barcellona and Lazaro met on July 24, 1984, with McDowell in Barcellona's apartment at the Surf Club to discuss the strategy for the dismissal of the charges, including the filing of a misleading report of the altercation with Lombardo. McDowell recorded Lazaro's statement that Lombardo's father has "been in the * * Vito Genovese family for a long, long time." Lazaro related that Alfred Grecco (sometimes known as Al Washnick) had approached Barcellona and said, "Joe, if you could do this for us, anything the kid [McDowell]*fn1 wants, he's got. We're talking five, ten. You name it, whatever." As summarized by the Special Ethics Master,
a discussion then ensued in which McDowell said that the "* * * report has not been turned in yet." Thereupon, McDowell and Lazaro discussed ways of composing a new and different report, and Lazaro concluded that there's "no risk of anything because I know the way it could be handled. You just gotta be smart on your end, that's all, you know * * * I know you could use the bucks,
nobody else is taking a cut on anything, you know." At that point, Barcellona entered the room, and Lazaro informed him that McDowell had "* * * knocked out his report but * * * hasn't submitted it yet."
Without including every detail of the July 24 conversation, the Special Ethics Master concluded
that conversation was clearly one in which McDowell, Lazaro and Barcellona discussed the price to be paid for McDowell's altering his report and how and through whom the money would be passed. The meeting concluded by McDowell stating that he would "* * * go home and have a beer, sleep on this one."
Later that night, at 2:15 a.m., McDowell called Lazaro and said he could "make a soft report that would leave, give them a lot a loopholes." McDowell added, however, that he wanted "assurance" from Lombardo, Sr. "that whatever story we agree on he [Lombardo, Jr.] sticks to."
Thereafter Grecco paid $5,000 to Lazarra, who delivered it to his nephew, Barcellona, who, in turn, gave it to Lazaro. On July 25 Lazaro paid $5,000 to McDowell, who gave $100 back to Lazaro. In exchange for the payment, which was to be followed by another $5,000 when the charges were dropped, McDowell -- who had delayed filing his initial report, which was detailed and identified Lombardo as the assailant -- was to file an altered report that would enable him to decline to identify Lombardo.
On July 20, 1981, after he was retained by Lombardo, Conway consulted respondent, whom Conway knew to be friendly with Barcellona. Conway, who was contemplating a countersuit against Barcellona and the Surf Club, told respondent that Lombardo's father was a "mobster * * * of some importance in that area." Respondent immediately called Barcellona to introduce him to Conway in order to resolve the matter amicably. In addition to acting as "peace maker," respondent was motivated by Lombardo's threat of retribution against Barcellona.
Conway and Barcellona first met on July 22 in respondent's office. According to respondent, he learned at that time that there were factual differences between Lombardo's and McDowell's versions of the altercation. For example, Lombardo
contended he hit McDowell with a styrofoam coffee cup, but McDowell asserted that it was with a container of mace. Barcellona stated that it was for McDowell to decide whether to withdraw the complaint, and that he would ask Lazaro, who had an apartment in the Surf Club, to approach McDowell. Barcellona subsequently stated at the July 24 meeting with McDowell and Lazaro that respondent had assured him he could talk with Conway on the 22nd because Conway was a friend who would not "put anything on paper." Barcellona quoted respondent as saying, "and the guy [Conway] actually begged me to say anything that could be done. He says I mean anything." Although respondent denied making any such remarks to Barcellona, the Special Ethics Master resolved the conflict against respondent.
At the conclusion of the meeting, Conway, Barcellona, and respondent agreed to meet again at respondent's office on July 28. According to respondent, in a telephone conversation on that date, however, Barcellona told him that the meeting was "not necessary" because Barcellona had spoken to Lazaro, "and everything is going to be O.K., or he [Barcellona] may have said, and McDowell is going to withdraw the charges." Respondent then related that information to Conway.
Between July 28 and August 19, respondent stated he had no further involvement in the matter, in part because he was away from his office from August 13-18 due to the death of his brother-in-law in an automobile accident in Nevada. In respondent's absence, the plot proceeded. On July 28, McDowell showed Lazaro his altered report with "a lot of grey area about whether or not I [McDowell] was sure that the guy I grabbed was the guy that squirted me." The next night, July 29, McDowell met with Lazaro and Barcellona, who compared the altered version with a copy of the initial report, the original of which McDowell said he had shredded.
When confronted on August 16 with tapes of conversations with McDowell, Lazaro confessed his wrongdoing. He agreed
to assist the State Police in their continuing investigation by taping future conversations.
We concur with the statement of the DRB, based on the findings of the Special Ethics Master, that the evidence is "insufficient to prove respondent knew of, assisted or encouraged in advance the change by McDowell of his initial report * * * or the bribery of McDowell." But there is more, and respondent's subsequent conduct places him, if not in the center, alongside those in the web of deceit. Which brings us to the events of August 19, 1981.
As summarized by the DRB:
Respondent returned to his law office on August 19, 1981 after being away since August 13. During the morning he received a telephone call from Barcellona asking him to come to his restaurant with Conway to meet with him. Respondent had forgotten about the Lombardo incident because on July 28, 1981 he was told by Barcellona that it was not necessary to meet that day since McDowell was going to withdraw the charges. Respondent and Conway were informed by Barcellona that Lazaro had suggested that Conway ask for a line-up as a way of disposing of the Lombardo matter. Respondent immediately said that was a dumb idea. He questioned why McDowell did not go to the prosecutor and say he did not wish to press charges. Conway then agreed with respondent that a line-up did not make sense. Barcellona replied that they should speak with Lazaro and that he would relay their reaction.
Later on August 19, respondent received another call from Barcellona, who asked that respondent and Conway meet with him and Lazaro that evening. The four met at Joey's Place and, pursuant to his agreement with the State Police, Lazaro recorded the conversation.
Respondent's role as an adviser to the other conspirators becomes apparent from their conversation that evening in the upstairs room of Joey's Place:
Barcellona: So that's why I'd rather talk up here, I told him [Conway] what you [Lazaro] said, I met with him lunch hour, about the lineup and everything. Then Vince [respondent] came up with a point that I said you better talk to Joey. So you could carry it from there, Don [Conway].
Conway: Vince [respondent] brought up a point and I think maybe he's right, that ah.
Barcellona: Come on politician.
Conway: It might look like, ah might make the guy [McDowell] look bad, ah your friend look bad. Because ya know he makes an arrest of somebody, then he can't ID him. Believe me, ya know, ya don't know me but I guess you can understand that Vinnie wouldn't be here and that all of ya would have to just to make sure nobody gets hurt in this process.
Conway: Would it make him [McDowell] look bad if he says, if we had a lineup. I don't mind looking at the lineup. But does it make, ahh . . .
Lazaro: Well to tell you the truth it was his [McDowell's] suggestion, and he felt a little more comfortable about doing that, ya know maybe just establishing a little doubt in the lineup rather than going in to the court or say before a grand jury hearing or something like that.
Rigolosi: Let me give you the benefit of my observation with that, I don't know what hap . . . See if first of all, if he's gonna do something like that, ah, I was talkin' to Don [Conway] about it since Joey suggested it, ah, his, ah, his [McDowell's] inability to identify someone on a lineup would have to be consistent with the events of that night. He can't look like a total horse's ass, he can't.
Rigolosi: He can't make it appear that, well, I mean you certainly don't want anyone to get suspicious now how can this guy now say he doesn't recognize him, and that night, he signed a complaint against the guy.
Rigolosi: Ya know he [McDowell] caused complaints against this guy [Lombardo] to be signed, he knew that night. And he's not a layman; he's a police officer, who ah, made a determination on the night of the event that this guy committed these acts. Now he's sayin' I don't even rec . . . I don't even know who it is. Or I don't recognize him, is what he's really saying. So it might cause someone and one thing ya don't want, is someone to say to him afterwards, hey listen you're getting cute? What, ah, what's happening here? You don't want to cause any further investigation beyond the investigation; however, it is possible that he may really because of the way things happened that night, not be in a position to know, ah look, I don't remember what the guy looked like. Ah, I'm not too sure, there were a lot of people around, the mace, the darkness, whatever. But I would think that, if that is so, or if it can be thought of as being so by whoever hears it, that the better way to do it is for him to tell the prosecutor, the assistant prosecutor, that instead of going through the formality of a lineup where, ah, it just may cause something beyond that to happen again.
Lazaro: Humm, good point.
Rigolosi: Ya know. It just may ah, see then it becomes a matter, it becomes an official part of the record. There's a lineup and Trooper McDowell is unable to identify his assailant.
Barcellona: Yeah but no, Vin [Rigolosi] I don't agree with that, I ah, I had to --
Rigolosi: Alright (inaudible).
Barcellona: (Inaudible) if you don't mind me saying Vin [Rigolosi]?
Rigolosi: No, no, I want you, because I don't know . . .
Barcellona: By the way you're saying it, I think you're putting more into it. He [Conway] as the guy's [Lombardo's] lawyer, he's askin' for a lineup. He's gonna say my guy said he wasn't there; it wasn't him.
Barcellona: I'm askin' for a lineup.
Barcellona: So now the trooper has to be called up and say jez ya know I can't pick this guy out. The way you're saying it now, already he called, already and asked for that court case --
Barcellona: Remember what you said to me?
Barcellona: You already made somethin' about this and now he's goin' to the prosecutor saying, please take me.
Rigolosi: No, no he's not going anywhere, I didn't mean that. No, I didn't mean that.
Conway: Ah, the thing that occurs to me immediately is, if, let's talk if somebody robs a bank, somebody comes in and robs it. The teller, the teller says yeah, I got frightened I couldn't ID the guy, that's one thing. But ah in this kind of situation, are there any other potential witnesses? Anybody? Suppose this fella says no, because I got blinded, I really don't know I, ya know, I couldn't see, I grabbed whoever I was closest to.
Lazaro: Well, do you have a copy of Denis's report?
Conway: No. No, I do not. * * * Never saw either one.
Lazaro: Alright [sic] well the report is down there now. And of course, ah I could show you the one I have in the car if you'd like to see that.
Rigolosi: Yeah I would like yeah, to take a look at it. Now let me explain, I don't mean he goes calls the prosecutor up and goes there. In a normal course of handling this, the prosecutor's office, ...