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 attorney-disciplinary case is before us upon the Decision and Recommendation of the Disciplinary Review Board (DRB or Board), determining that respondent, Donald Conway, was guilty of unethical conduct and should be publicly disciplined. The conduct that gave rise to this disciplinary proceeding was also the basis of a criminal indictment and prosecution against respondent, which resulted in convictions for conspiracy, in violation of N.J.S.A. 2C:5-2, and tampering with a witness, contrary to N.J.S.A. 2C:28-5a(1), (2) and N.J.S.A. 2C:2-6.
The DRB correctly recognized that the judgments of conviction were conclusive evidence of respondent's guilt. Rule 1:20-6(b)(1). Accordingly, it determined that respondent's conduct, as established by his convictions, constituted a breach of ethics that was prejudicial to the administration of justice and adversely reflected on his fitness to practice law, contrary to Disciplinary Rules 1:102(A)(3), (5) and (6). The DRB further noted that while there was no need to make an independent examination of the underlying facts to ascertain whether respondent was guilty of unethical conduct, the underlying facts were essential to an understanding of the gravity of respondent's misconduct and the extent of final discipline to be imposed. Rule 1:20-6(b)(2)(ii). The Board concluded unanimously that "disbarment would be too severe" and recommended that respondent be suspended for three years retroactive to the date of his temporary suspension, which was February 16, 1984.
We note, as did the DRB, that respondent's criminal convictions are conclusive evidence of his guilt and serve to establish the essential facts that sustain the convictions. R.
1:20-6(b)(1); see, e.g., Matter of Coruzzi, 98 N.J. 77 (1984); Matter of Hughes, 90 N.J. 32 (1982); Matter of Bricker, 90 N.J. 6, 10 (1982). By virtue of his criminal convictions, respondent comes before us guilty of a breach of ethics involving the crimes of conspiracy and tampering with a witness; these crimes were committed in the course of respondent's representation of a defendant in a criminal prosecution. Lending emphasis to the dispositive weight to be accorded respondent's criminal convictions is the added consideration that the validity of these convictions has been subject to scrupulous judicial review by the Appellate Division in its affirmance of the criminal convictions, State v. Conway, 193 N.J. Super. 133 (App.Div.1984), and by this Court in its denial of certification, certif. den., 97 N.J. 650 (1984). Moreover, in this disciplinary proceeding, the DRB has independently considered the facts and presented its essential findings in its Decision and Recommendation with respect to the imposition of discipline. We have been assisted by its thorough analysis of the factual record in engaging in our own independent examination of that record. Thus, the facts in the case have been exhaustively reviewed and are now firmly and independently established.
To reiterate, because a criminal conviction is given conclusive effect, the underlying facts in support of the conviction need not be independently reviewed in order to determine whether a breach of ethics has occurred. The facts, however, may be considered in assessing the appropriateness of discipline and the severity of the sanction to be imposed. See Matter of Johnson, 102 N.J. 504 (1986); Matter of Rosen, 88 N.J. 1 (1981). Accordingly, in dealing with this issue, we focus first upon the underlying facts and then turn to an assessment of these facts in order to determine the appropriate discipline.
This matter originated out of an altercation between Philip Lombardo, Jr. and a state police officer, Denis McDowell. The
incident occurred during the early morning hours of Sunday, July 19, 1981, outside an establishment known as the Surf Club in Dover Township, which club was owned and operated by Joseph Barcellona. In the past, McDowell had been employed occasionally at this club when not on duty.
Prior to the McDowell-Lombardo altercation, Lombardo had been ousted from the club for objectionable behavior. Instead of leaving the area, however, Lombardo remained outside the establishment. McDowell, who was present at the club, observed Lombardo acting suspiciously and frisked him; he allegedly found a can of tear gas. Later that evening, as the club was closing, Lombardo banged on the door and, when it was opened by McDowell, threw a substance in McDowell's face. McDowell chased Lombardo, calling: "Halt, I'm a police officer." McDowell finally apprehended Lombardo when the latter attempted to get into his automobile. A struggle ensued in the car, during which Lombardo tried to grab an object, which also contained tear gas. With the aid of several employees of the Surf Club, Lombardo was subdued and taken into the Club. While inside, Lombardo stated: "I told you I would get even," and boasted that he had "family connections" who run New York and New Jersey, and that by one phone call he could have those who restrained him "taken care of."
On the following day, McDowell prepared a two-page report on the altercation on a New Jersey State Police form. Lombardo was charged with two counts of possession of tear gas, contrary to N.J.S.A. 2C:39-4, a third degree crime; one count of simple assault, contrary to N.J.S.A. 2C:12-1, a disorderly persons offense, and an "additional charge" of resisting arrest, contrary to N.J.S.A. 2C:29-2, a fourth degree crime if physical force is used against the officer. Although McDowell prepared this report, it was not processed.
On the same day, July 20, 1981, Lombardo retained respondent as his attorney. As noted by the DRB, respondent is a close friend of Vincent Rigolosi, Esq., as well as his business
partner in a building in which their respective separate law offices are located. Respondent knew that Rigolosi was friendly with Joseph Barcellona and his family and had represented Joseph Barcellona in the past. Respondent spoke to Rigolosi about the McDowell-Lombardo incident, and mentioned that he was considering filing cross-complaints as well as a civil action against Barcellona and the Surf Club. They -- respondent and Rigolosi -- scheduled a meeting with Barcellona to see if the Lombardo matter might be disposed of amicably without litigation.
Meanwhile, at 8 p.m. on July 21, 1981, McDowell received a phone call at his home from Joseph Lazaro, a state police sergeant and Barcellona's cousin, asking him to come to Barcellona's apartment. McDowell knew and respected Lazaro, who had helped McDowell join the state police. McDowell went to Barcellona's apartment on July 22, and spoke to Lazaro before Barcellona's arrival. According to McDowell, Lazaro told him "that there might be some problems with my family, and that the person involved was, in fact, a member of the Vito Genovese family." McDowell understood this to mean that his family might be in danger. Later, after Barcellona arrived, McDowell recounted the events surrounding Lombardo's arrest, including the comments made regarding Lombardo's "connections." Barcellona was angry about the incident, particularly about Lombardo's comments. He told McDowell that he had received a telephone call from Rigolosi about possible counter-complaints and a lawsuit against Barcellona.
On July 22, 1981, respondent met Barcellona for the first time in Rigolosi's office at which meeting the matter was discussed. Respondent stated that his client would not file counter-complaints if McDowell would withdraw his charges. Barcellona replied that he "would be more than happy to resolve it by having the charges dropped." At a later date, Barcellona stated with reference to this meeting, according to a tape recording, that respondent had "begged" him to do "anything
that can be done . . . I mean anything," to drop the charges.
McDowell next heard from Barcellona by phone at approximately 7:30 p.m. on July 22, 1981.*fn1 At Barcellona's request, another meeting was arranged. By now, McDowell's suspicions were aroused and, before that meeting, McDowell conferred with a superior officer at division headquarters about what had transpired and was instructed to record future conversations with Barcellona.
McDowell used a recording device in all further meetings regarding this matter. He met with Barcellona and Lazaro at Barcellona's apartment on the night of July 24, 1981. At the outset of this conversation, and apparently before the arrival of Barcellona, Lazaro informed McDowell that Lombardo's father has "been in the . . . Vito Genovese family for a long, long time." He then said that one Al Washnick [alias Alan Grecco] approached Barcellona and stated: "Joe, if you could do this for us, anything the kid [McDowell] wants, he's got. We're talking five, ten, you name it, whatever." A discussion then ensued in which McDowell noted that the "report has not been turned in yet." McDowell and Lazaro discussed ways of composing a new and different report, and Lazaro concluded that there was "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." Barcellona related that he had met with members of the "families" who were upset with Lombardo's comment about being "connected" and wanted Barcellona to do what he could to resolve the matter.
At this meeting of July 24, Barcellona stated that when he met with Rigolosi and respondent, he asked "Vince" -- Rigolosi -- whether he should talk. Rigolosi assured Barcellona, in respondent's presence, that he, Barcellona, should talk, explaining that respondent was a friend who will not "put anything on paper." Then, according to Barcellona, Rigolosi said: "And the guy [respondent] actually begged me to say anything that can be done. He says I mean anything." Barcellona also told McDowell that respondent stated that he did not believe Lombardo's story about the events of July 19, 1981.
The July 24 conversation among McDowell, Lazaro and Barcellona included a discussion of the price to be paid for McDowell's altering of his report and how and through whom the money would be passed. It was established that Barcellona had asked Lazaro to approach McDowell and inform him that Alan Grecco offered to pay $10,000 to get the charges against Lombardo dismissed. McDowell asked to meet with Lombardo or Grecco and, at the close of the meeting, Lazaro telephoned his uncle, Samuel Lazzara, to arrange a meeting between Grecco, McDowell and himself.
The following evening, Lazaro met Grecco at Lazzara's home. Grecco would not permit McDowell to be present at this meeting. The two men discussed altering the arrest report or, in the alternative, having McDowell fail to identify Lombardo in a line-up. Grecco refused to allow McDowell to meet with Lombardo, stating that "our attorneys would get the reports" and "would be able to handle that."
Shortly after this meeting, Lazaro returned to Lazzara's home and received $5,000 to give to McDowell. Lazaro was told that the money was from Grecco and that McDowell would receive $5,000 now and $5,000 "when its done."
On July 25, 1981 at 2:10 a.m., McDowell recorded a telephone conversation between himself and Lazaro. In the course of this discussion, McDowell stated that he could ". . . make a soft report that would leave, give them a lot of loopholes." However,
McDowell added that he wanted "assurance" from Lombardo, Sr. "that whatever story we agree on he [Lombardo, Jr.] sticks to."
Another recorded meeting took place on the night of July 25, 1981, between McDowell and Lazaro at the Surf Club. At this meeting, Lazaro recounted the circumstances of McDowell's receipt of the initial $5,000 of the $10,000 payment; Lazaro passed the $5,000 to McDowell, who gave Lazaro $100 out of the proceeds. The two also discussed at length the best way to have the charges against Lombardo dismissed with minimum risk to themselves. They decided that McDowell should omit from the police report certain references that were detrimental to Lombardo.
On the evening of July 28, 1981, McDowell and Lazaro again met at the Surf Club. McDowell recorded their conversation, in which he stated that he had made a "good report," leaving "a lot of gray area about whether or not I was sure that the guy I grabbed was the guy that squirted me."
On the following night, July 29, 1981, McDowell met with Lazaro and Barcellona, and again recorded their conversation. McDowell showed the others the revised police report and they compared it with the original version. McDowell explained that he had made a copy of his original report before shredding it. Barcellona was impressed with the altered report and urged McDowell to lend it to him so that he could show it to others.
On August 16, 1981, Lazaro's superiors in the State Police confronted him with the evidence of his misconduct supplied by McDowell. Lazaro then confessed his wrongdoing and agreed to assist the State's investigation.
On August 19, 1981, respondent and Rigolosi met Barcellona for lunch at Barcellona's restaurant in Clifton. Barcellona was later recorded on tape stating that the three men had talked about "the line-up and everything." At Rigolosi's request, respondent returned that evening to an office above the restaurant
to meet with Lazaro, Rigolosi and Barcellona. Lazaro recorded their conversation.
During the August 19 meeting in Barcellona's office in Clifton, Barcellona noted that respondent was informed during lunch that day about the suggested line-up ploy. Respondent stated that McDowell would "look bad" if he failed to identify an individual that he had arrested. He also mentioned problems that he had discussed with Rigolosi earlier in the day with regard to seeking a line-up.
Initially, Rigolosi also disapproved of the plan to hold a line-up at which McDowell would be unable to make a positive identification of Lombardo. Rigolosi noted that McDowell had already made complaints against Lombardo and that McDowell "can't look like a total horse's ass." He warned against causing "any further investigation beyond the investigation." Rigolosi stated that McDowell's ability to identify someone in a line-up would have to be consistent with the events of July 19:
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 ...