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Matter of Yaccarino

Decided: October 13, 1989.

IN THE MATTER OF THOMAS L. YACCARINO, AN ATTORNEY AT LAW


For disbarment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock and Stein. Dissenting -- Justices O'Hern and Garibaldi. O'Hern and Garibaldi, JJ., dissenting.

Per Curiam

This is an attorney-disciplinary case brought against Thomas L. Yaccarino, following proceedings that resulted in his removal from the office of Judge of the Superior Court on December 27, 1985. The judicial-removal case was the subject of a reported decision by this Court, In re Yaccarino, 101 N.J. 342 (1985). This attorney-disciplinary case was initiated in August 1986 by the Office of Attorney Ethics (OAE), which filed a formal complaint, charging respondent with professional misconduct. The charged misconduct encompasses the same acts that were the focus of the judicial-removal proceedings.

In late September 1986, respondent filed a motion with the Court contesting the OAE's authority to file an ethics complaint against him as an attorney and contending that the principles of res judicata and collateral estoppel did not bar a challenge of the facts that had been determined in the antecedent judicial-removal action. The Court denied the motion, but ruled that the parties could present additional evidence and arguments on the issue of mitigation. It directed a panel of the District XIV Ethics Committee (Committee) to hear the case.

The Committee held hearings in June 1987. It accepted as conclusive the findings of fact determined in the judicial-removal case. The main question it considered was whether the proofs offered by respondent established a medical condition sufficient to excuse his unethical conduct. The Committee accepted as uncontradicted the expert testimony of respondent on this issue. The Committee recommended that, under the circumstances, respondent receive a public reprimand.

The matter was then brought before the Disciplinary Review Board (DRB or Board), which heard it in April 1988. In its disposition, the Board divided evenly as to the appropriate discipline. Four members determined that respondent should be disbarred for certain of his misdeeds, while four believed he should receive no more than a public reprimand. Each position was explained by a separate opinion setting forth recommended

findings of fact and conclusions to support the discipline proposed. This appeal followed:

I.

Respondent contends that his discipline and removal from office as a judge, as reported and explained in our opinion, In re Yaccarino, supra, 101 N.J. 342 obviate any need to subject him to further discipline for these same unethical acts based on his status as an attorney. The basic question posed by this contention is whether respondent's misconduct in judicial office bears materially on his fitness to practice law. If the judicial misconduct reflects on the fitness to practice law, discipline that is limited only to the judicial office will not necessarily address or protect the public interest that must be considered in determining whether professional discipline should be imposed.

This Court has long recognized that there is a duality of professional responsibility on the part of lawyers who serve in the judiciary. Their professional loyalty runs both to the judicial office in which they serve and the profession of which they are members. Indeed, the status of an attorney as a member of the legal profession is a condition for the holding of judicial office. N.J. Const. art. VI, ยง 6, par. 2 (1947). Thus, if misconduct affects both the judicial office and the professional status of a lawyer, the public interest in both judicial and professional integrity can be implicated by the lawyer's conduct in judicial office.

We have on occasion addressed these concerns and recognized the indivisibility of the responsibility of a lawyer to his or her judicial office and legal profession. In In re Mattera, 34 N.J. 259, 266-67 (1961), we observed:

A single act of misconduct may offend the public interest in a number of areas and call for an appropriate remedy as to each hurt. Thus it may require removal from public office. It may also require criminal prosecution. Still further it may require that the roster of attorneys be cleansed of a miscreant. The remedies are not cumulative to vindicate a single interest; rather each is designed to deal with a separate need.

In In re Vasser, 75 N.J. 357 (1978), this Court found that a judge could be disciplined as a member of the bar for improperly interceding in another court and in using his official stationery for private transactions. The Court said:

We conclude that respondent's ethical breaches warrant discipline. His ethical misconduct occurred while he held judicial office and was related to that office. . . . At this critical juncture, when discipline is to be imposed, respondent stands before us only as a member of the bar. The Ethics Committee determined that respondent was guilty as an attorney for derelictions while holding judicial office; he is clearly accountable for this misconduct in his professional capacity as a member of the bar. [ Id. at 363-64.]

In In re D'Auria, 67 N.J. 22 (1975), this Court suspended a former judge's law license for six months for improperly having lunch with attorneys who were representing clients in his court. The Court found that the judge's acceptance of gratuities and favors was unethical conduct for which a lawyer could be disciplined. Id. at 24-25. Thus, judges who transgress professional ethics standards can be, and have been, disciplined qua lawyers.

The courts in a majority of the states have acknowledged, "that an attorney may be disbarred, suspended, or otherwise disciplined for acts of misconduct performed in the exercise of a judicial office." Annot., "Misconduct in Capacity as Judge as Basis for Disciplinary Action Against Attorney," 57 A.L.R.3d 1150, 1158 (1974). These cases have concluded that "misconduct in any capacity whatsoever, including a judgeship, reflects upon an attorney's fitness to practice law and is consequently a proper ground for discipline." Id. See, e.g., In re Littell, 260 Ind. 187, 294 N.E.2d 126 (1973) (attorney-judge is subject to the strongest requirements of both disciplinary rules for attorneys and Code of Judicial Conduct and Ethic and so license can be suspended for misconduct as a judge); In re Bartholet, 293 Minn. 495, 198 N.W.2d 152 (1972) (probate judge's conduct in obtaining funds from estate by appointing appraisers from whom he asked and received kickbacks of appraisal fees authorized by him would warrant disbarment); In re Hasler, 447 S.W.2d 65 (Mo.1969) (attorney corresponding with and having

private meetings and telephone conversation with one party to a divorce suit in which he was the presiding judge found guilty of gross misconduct as both a judge and a lawyer); Cin. Bar Ass'n. v. Heitzler, 32 Ohio St.2d 214, 291 N.E.2d 477, cert. den., 411 U.S. 967, 93 S. Ct. 2149, 36 L. Ed. 2d 687 (1972) (court found that "[a] member of the legal profession, who is also a judge, may engage in misconduct which not only requires his removal from office, but also requires that disciplinary action be taken against him with regard to his right to practice law after such removal from office."); Schoolfield v. Tenn. Bar Ass'n., 209 Tenn. 304, 353 S.W.2d 401 (1961) (lawyer found guilty in impeachment proceedings of "reprehensible conduct involving moral turpitude and has demonstrated qualities which make him an unfit person in whom to place the public trust of practicing law" was properly disbarred for such conduct.).

In In re Alonzo, 284 Ala. 183, 223 So.2d 585, cert. den., 396 U.S. 992, 90 S. Ct. 486, 24 L. Ed. 2d 454 (1969), the Alabama Supreme Court addressed the issue of disbarring an attorney for fraudulent, corrupt activities as a judge. The court found that:

Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct. [ Id. [223 So.2d] at 592.]

The court concluded that the remedies of judicial impeachment and attorney discipline are not cumulative but protect different interests. "[The] interest of the legal profession in the maintenance of decent and honorable conduct of its members was also grievously offended by Alonzo's conduct" and merited his removal from the roll of attorneys. Id.

We have done no less. In a case in which a judge was found guilty of crimes involving bribery in connection with his judicial office, we concluded that the judge must not only be removed

from judicial office but must also be disbarred as an attorney. "[No] discipline short of disbarment would be commensurate with the transgression." Matter of Coruzzi, 98 N.J. 77, 81 (1984). Moreover, we have recognized in other contexts that an attorney's conduct not directly involving the practice of law may nonetheless bear materially on his professional capacity as a lawyer. Thus, the Court has not hesitated to order disbarment where a lawyer uses his position to advance personal financial interests at the expense of clients. See, e.g., Matter of Smyzer, 108 N.J. 47 (1987); Matter of Servance, 102 N.J. 286 (1986); In re Wolk, 82 N.J. 326, 333 (1980).

In sum, we recognize that an attorney who has engaged in ethical misconduct while serving as a judge may be exposed to professional discipline in his or her capacity as a lawyer. Judicial discipline for such misconduct neither obviates nor forecloses professional discipline.

II.

The factual and procedural material constituting the record relevant to the current attorney-disciplinary case is found in the Court's comprehensive and detailed opinion determining that, based on misconduct which occurred between 1979 and 1982, respondent be removed from judicial office. In re Yaccarino, supra, 101 N.J. 342. The judicial-removal proceedings were initiated against respondent through a complaint authorized by the Court in 1984 following two presentments of the Advisory Committee on Judicial Conduct. The complaint charged respondent with ethical misconduct in violation of N.J.S.A. 2A:1B-2 and several canons of the Code of Judicial Conduct. A three-judge panel was designated pursuant to N.J.S.A. 2A:1B-7. The panel heard the matter between March and May 1984 and issued its findings to the Court in July 1984. The panel found the evidence showed a pattern of misconduct that warranted respondent's removal from the bench. This Court's decision to remove respondent from the bench reflected its independent

assessment of the record, including detailed findings of fact and specific conclusions of law.

Preliminarily, we must advert to the conclusive effect, if any, on these proceedings of our determinations in the judicial-removal case. We have in the context of determining the preclusive effect of prior factual and legal determinations ruled that criminal convictions constitute conclusive determinations of underlying facts necessary to support the conviction. See Matter of Conway, 107 N.J. 168, 170 (1987); Matter of Bricker, 90 N.J. 6 (1982); Matter of Hughes, 90 N.J. 32 (1982). We have ruled also that such criminal convictions are conclusive in judicial-removal proceedings. See, e.g., Matter of Coruzzi, 95 N.J. 557, 571 (1984). We are similarly of the view that the determinations made in judicial-removal proceedings are conclusive and binding in subsequent attorney-disciplinary proceedings. See Matter of Coruzzi, supra, 98 N.J. at 80. This is particularly so, as in this case, where the charges are identical and the burden and standard of proof in the antecedent proceedings were at least as protective of the interests of the respondent as they are in the current proceedings. We, therefore, rule that the findings that undergird a determination of judicial misconduct are conclusive in subsequent attorney-disciplinary proceedings.

The judicial-removal case involved several distinct episodes of misconduct, which must be considered selectively in determining their bearing on respondent's capacity as an attorney and his fitness to practice law. We therefore deal initially with respondent's conduct relating to his daughter while she was a student at Stockton State College and with his involvement in two liquor license business enterprises.

A.

In early March 1981, respondent's daughter, Cynthia, was arrested and charged in municipal court with offenses arising out of her alleged attack on a Stockton State College police

officer who had impounded her unleashed dog. On learning of the arrest some days later, respondent contacted a sergeant of the college police department, identified himself as a Superior Court Judge, and demanded to know the statute that authorized detention of the dog; respondent also told the sergeant that he was a holder of silver and gold P.B.A. cards. On the same day, respondent called the Monmouth County Prosecutor, and requested that he contact the Atlantic County Prosecutor to have him investigate his daughter's arrest. Respondent then spoke with the chief of the college police department and threatened to bring suit against him, the arresting officer, and the college for violation of his daughter's civil rights unless the arresting officer was fired within twenty-four hours. This did not occur, and respondent's daughter then filed two municipal court complaints against the arresting officer. On several occasions thereafter respondent contacted the municipal prosecuting attorney on the pending charges. These charges were heard and dismissed later in the spring of 1981. See In re Yaccarino, supra, 101 N.J. at 360-62.

We determined in the judicial-removal proceedings that respondent's conduct engineered an undeniable appearance of impropriety, that respondent used the power, authority, and prestige of his office to advance the private interests of his daughter, and that he used his judicial position to influence other public officials' performance of their lawful duties and to interfere with the orderly administration of justice. Id. at 362-63.

In the current case, the DRB concluded with respect to this episode that respondent breached his ethical duty to the legal system in his capacities as both attorney and judge.*fn1 It specifically

noted respondent's personal direct and indirect contacts with law enforcement officials that included pointed references to his official judicial position and "his thinly-veiled threats to various law enforcement personnel of the consequences, should they fail to comply with his demands." These, according to the DRB, constituted proof beyond a reasonable doubt that respondent attempted to influence other public officials in the performance of their lawful duties.

The DRB observed:

Mr. Yaccarino wrongly invoked the prestige of his judicial office in an effort to advance his family's interests. By so doing, he demeaned the judiciary and the profession. Respondent's personal interests and those of his daughter must be subordinate to the public's interest in the fair, impartial, and orderly administration of justice. There is no escape from the conclusion that respondent is guilty of unethical behavior. See DR 1-102(A)(5) & (6).

It further observed that respondent "did not heed the admonition of Disciplinary Rule 8-101(A)(1) and (2). A judge or an attorney who either attempts to influence another tribunal or interfere with the prosecution of charges against a family member to advance his private interest, rather than that of the public, deserves discipline," citing In re Vasser, supra, 75 N.J. at 363.

We agree with this assessment and determination. We conclude that respondent's conduct violates Disciplinary Rules 1-102(A)(5), and (6) and 8-101(A)(1) and (2).

B.

In the judicial-removal proceeding, the Court found respondent possessed an interest in liquor licenses held by Green Parrot, Inc., and Montego Bay, Inc. He purposely failed to disclose his stock ownership in the corporations and engaged in a conscious effort to conceal his interests in both enterprises, thus violating N.J.S.A. 33:1-25 and 33:1-26. 101 N.J. at 366,

371. Respondent did not merely hold the interests as investments, but actively participated in the business operations to an extent exceeding that needed to protect his proprietary interest. Id. at 372. This extensive participation, including involvement in securing the liquor licenses themselves, sought to assure commercial success of the ventures. We acknowledged that the term "gainful pursuit" had not been defined or applied uniformly. See id. Nevertheless, we determined that respondent's conduct violated the constitutional proscription against judges engaging in a "gainful pursuit," as prohibited by Article VI, section VI, paragraph 6 of the New Jersey Constitution. Id. at 372-73. We made no determination that judges of the Superior Court are prohibited from holding an interest in a liquor license by virtue of N.J.S.A. 2A:154-1 and N.J.A.C. 13:2-23.31.

The Court was most perturbed by the failure of respondent to disclose his interests in the liquor licenses and his conscious efforts to conceal his ownership interests. In re Yaccarino, supra, 101 N.J. at 366, 370. The DRB noted that a lawyer must obey the law, not circumvent it, referring to Disciplinary Rule 1-102(A)(6). It further pointed out that Disciplinary Rule 1-102(A)(4) prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See DR 7-102(A)(3). As noted by the DRB, "the disciplinary rules require honesty and forthrightness." Thus, as stressed by the DRB, respondent "was the true owner of an interest in the real estate and owned a beneficial interest in the stock of the corporations involved in the liquor businesses;" nevertheless, he "affirmatively attempted to hide his interest by (a) not including his name in the deeds and mortgages, (b) not recording in one of the two ventures a deed between him and his wife that reflected his ownership interest, and (c) by not including his name in the applications for the liquor licenses." His conduct had stains of "misrepresentation and deceit."

The DRB concluded that respondent's failure to disclose his interest offended the Disciplinary Rules. We concur. We find

that this failure violated our Disciplinary Rules 1-102(A)(4) and 7-102(A)(3).

III.

The other major episode of misconduct involves the Manzo matter. The DRB agreed unanimously that this matter implicated conduct touching directly on the administration of justice and the integrity of the judicial process.

Respondent presided as a trial judge, sitting without a jury, in a case that involved dissolution of several closely held corporations, the total corporate assets of which were estimated in the range of $20,000,000 to $30,000,000. These assets were to be distributed to three brothers of the Manzo family, who were the principals of the corporations. One of these assets was a large house situated on three lots located on Philadelphia Boulevard in Sea Girt, New Jersey. In July 1976, the Manzo brothers arrived at a settlement, the terms of which were placed on the record in open court and incorporated in a judgment signed by respondent. The settlement agreement provided for the physical division of certain assets among the brothers; Michael was to receive 60%, Joseph 25% and Patrick 15% of the aggregate value of all the assets, including the Sea Girt property.

Serious disputes arose concerning the interpretation and implementation of the settlement agreement. These gave rise to acts of misconduct by respondent that became the subject of the most serious charges brought against him as a judge and as an attorney.

A.

As a consequence of the Manzos' inability to resolve their differences, it was agreed by the parties and their respective attorneys that respondent could meet ex parte with the individual litigants without their attorneys being present to discuss the case. Such ex parte meetings occurred with the Manzo

brothers, individually or severally, with or without their attorneys; there were also several private telephone conversations ...


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