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In re Herman

Decided: July 17, 1987.

IN THE MATTER OF STEVEN ALLEN HERMAN, AN ATTORNEY-AT-LAW


On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.

Wilentz, C.J., and Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein, JJ., join in this opinion.

Per Curiam

This matter arises from a report of the Disciplinary Review Board (Board or DRB) recommending that respondent, Steven Allan Herman, be suspended from the practice of law for a minimum period of three years from the time of his temporary suspension. The matter came before the Board on a motion for final discipline filed by the Office of Attorney Ethics based upon respondent's guilty plea to a charge of sexual assault in violation of N.J.S.A. 2C:14-2b. Respondent does not challenge the DRB's finding that he engaged in conduct that adversely reflected on his fitness to practice law, contrary to DR 1-102(A)(3), and the only issue is the appropriate discipline to be imposed.

I

The DRB summarized the relevant facts as follows:

Several times between May 1, and July 31, 1984 respondent, 44, purposely touched the buttocks of a ten-year-old boy who was visiting respondent's son in

respondent's home. Respondent either touched the buttocks from the outside of the boy's clothing or would insert his hand inside the boy's pants.

Respondent was arrested on September 16, 1984. On March 1, 1985 he pleaded guilty to a Mercer County accusation which charged him with committing sexual assault, contrary to N.J.S.A. 2C:14-2b. This law provides that a person is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least 4 years older than the victim. As part of the plea agreement, the State recommended dismissal of other complaints charging respondent with similar conduct with about five different boys. The State also agreed that no charges would be filed against respondent as a result of a then pending investigation involving one or two other boys.

Pursuant to N.J.S.A. 2C:47-1 respondent was referred to the Adult Diagnostic and Treatment Center for examination. The examination revealed that respondent's conduct qualified him to be sentenced under the purview of the State Sex Offender Act in that there had been a pattern of repetitive, compulsive behavior. Under this Act, a court could sentence a defendant to the Diagnostic Center for a program of specialized treatment for his mental condition. Respondent was sentenced on June 14, 1985. The court was informed respondent had been undergoing counseling since the time of the incident and it would continue. Although there is a presumption of imprisonment for conviction of a second degree crime, N.J.S.A. 2C:44-1d, the court placed respondent on three years probation with the condition that counseling be continued, and the counselor file a report with the probation department every 90 days. In addition, 60 hours of community service and a fine of $350 were imposed. There was no finding that the mitigating factors substantially outweighed the aggravating factors, N.J.S.A. 2C:44-1f(2).

At the time of the offense, respondent was associated with a law firm in East Brunswick, New Jersey. Within days of his arrest, he voluntarily terminated his relationship with that firm and ceased practicing law. On November 20, 1985, this Court formally suspended respondent from the practice of law pending the outcome of these proceedings. In re Herman, 101 N.J. 26 (1985).

With respect to the appropriate discipline, the DRB stated:

"The principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general." Matter of Kushner, 101 N.J. 397, 400 (1986); In re Wilson, 81 N.J. 451, 456 (1979). The interests of the public, the bar and the individual involved must be considered. Kushner, supra, [101 N.J. ] ...


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