On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
[114 NJ Page 276] This is an attorney-disciplinary case involving Lester T. Vincenti, whose professional conduct was the occasion of previous
public discipline. In re Vincenti, 92 N.J. 591 (1983). A formal complaint was filed with the District XII (Union County) Ethics Committee (DEC). The complaint alleged professional misconduct in connection with a civil proceeding entitled Dauphin et al. v. Webb et al., No. L-37942-83 (Union County 1983). Following a hearing, the DEC returned a presentment to the Disciplinary Review Board (DRB) finding respondent guilty of unethical conduct and recommending discipline. While the matter was pending before the DRB, the Office of Attorney Ethics (OAE) filed with the DRB a motion for final discipline against respondent based on three separate incidents. Each of these matters included convictions of respondent for the petty disorderly-person's offense of using loud and abusive language, in violation of N.J.S.A. 2C:33-2(b). The Decision and Recommendation of the DRB dismissed the motion of the OAE for final discipline primarily on procedural grounds. With respect to the respondent's misconduct in the Dauphin matter, the DRB determined that respondent had violated the Rules of Professional Conduct and by a majority vote recommended a public reprimand as discipline.
As previously indicated, the proceedings before the DRB included the motion of the OAE for final discipline based on respondent's earlier convictions of disorderly-persons offenses. These arose out of three separate incidents occurring in 1980. The DRB, however, declined to determine whether professional discipline for respondent's three disorderly-persons convictions should be imposed for several reasons. It noted that respondent's actions occurred during the same time that he engaged in conduct for which he was suspended from the practice of law for one year in 1983, as reported in In re Vincenti, supra, 92 N.J. 591. The DRB believed that the discipline then imposed probably encompassed these other incidents. It also determined that respondent's convictions were based on violations of N.J.S.A. 2C:33-2(b), which was subsequently declared unconstitutional
(see State in Interest of H.D., 206 N.J. Super. 58, 61 (App.Div.1985)), and, consequently, these convictions could not serve as an independent basis for discipline. For these reasons, the DRB dismissed the motion of the OAE. This determination has not been appealed.
In the Dauphin matter, respondent was the attorney for plaintiffs who brought a civil personal injury action against New Jersey Transit and two of its employees. These defendants were represented by the Attorney General. A complaint against respondent alleging professional misconduct in the course of this proceeding was filed with the DEC by the Deputy Attorney General, who was respondent's adversary. Following a two-day hearing, the DEC determined that respondent, at the time of the trial call, threatened opposing counsel, engaged in vulgar name-calling, and failed to cooperate in appearing for the trial call. It determined further that during the course of the trial itself, respondent continued to engage in vulgar name-calling directed towards opposing counsel; respondent also engaged in name-calling of the defendants' investigator and challenged him to a fight; and in a telephone conversation, respondent used threatening, abusive, and vulgar language directed to the trial judge's law clerk. The DEC concluded respondent had engaged in "vulgar name-calling," which violated RPC 3.2. It also concluded that respondent engaged in conduct prejudicial to the administration of justice by failing to cooperate in appearing for the trial call, by failing to treat all persons involved in the legal process with courtesy, and by using abusive and vulgar language directed to the trial judge's law clerk. This misconduct violated RPC 8.4(d). The DEC recommended public discipline.
In its determination of this matter, the DRB narrates the ensuing presentation of testimony, which conforms to our own assessment of the record:
On February 25, 1985, the case was called for trial at 8:30 a.m., but respondent was not present. The DAG testified he had two witnesses present and was prepared to proceed that day, because the matter had been postponed
several times previously. He believed this date was a peremptory trial date. Respondent arrived approximately 45 minutes later. The DAG alleged respondent simply informed him he could not proceed at that time. When the DAG objected, respondent became agitated. The DAG asserted respondent began to use loud, abusive, obscene language. As the two walked through the courthouse rotunda towards the assignment clerk's office, the DAG alleged respondent challenged him to a fight. An NJT investigator, who was accompanying the DAG, stepped between the two and defused the situation. The parties proceeded toward the assignment clerk's office, while respondent engaged in a constant barrage of profanity. The matter was ultimately postponed for approximately two weeks.
Respondent testified there was no serious challenge to fight and that any "street language" he used could not possibly have offended the DAG. Moreover, respondent did not see any witnesses present at that time.
The DAG further claimed respondent harassed him many times during the trial by using obscene and profane language and a "threatening tone" towards him. All of the harassment occurred during recesses in the trial, when the court, the witnesses and the jury were not present. According to the DAG, respondent once commented "I see you are turning black again, . . . ." At other times respondent told the DAG he was incompetent. At another point respondent told the DAG "you are a piece of shit." At least twice, according to the DAG, respondent challenged him to fight. Respondent denies all of this.
During the course of the trial the parties attempted once again to settle. At one point the DAG met alone with the judge in chambers and agreed to make a maximum offer of $25,000. As respondent was preparing to enter the judge's chambers, the NJT investigator handed him copies of medical reports that had just been obtained and were intended for rebuttal. As respondent left chambers and passed counsel table, he commented that the offer was "an insult", that the defendants were not negotiating in good faith. He then threw the copies of the medical reports onto the table. The papers slid across the table and hit the NJT investigator on the hand. Respondent again categorically denied all of this.
The NJT investigator testified to an incident between respondent and himself that occurred in an elevator in the courthouse. The NJT investigator was waiting for the elevator. When the doors opened, respondent, the only passenger, walked out. On his way past the investigator, respondent made a noise that sounded like "ha." The investigator understood this to be a laugh and began to laugh himself as he entered the elevator. The investigator testified he then heard a loud noise. When he turned around, respondent was holding the doors open and demanding the investigator get off the elevator. When the investigator refused, respondent challenged "you shit" to fight. Respondent then queried as to ...