On an order to show cause why respondent should not be disbarred or otherwise disciplined.
Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, and Stein join in this opinion. Justices Clifford and Pollock did not participate.
This attorney discipline matter arises from a Report and Recommendation of the Disciplinary Review Board (DRB) that respondent be suspended from the practice of law for a period of three months. Three members of the DRB disagreed and concluded that a public reprimand, coupled with a requirement of certain supervisory practices, would constitute sufficient punishment. The majority recommendation is based on findings of the District X Ethics Committee, concurred in by the DRB, that respondent had engaged in unethical conduct in violation of RPC 8.4(c) and (d), conduct involving dishonesty, fraud, deceit, or misrepresentation, and conduct prejudicial to the administration of Justice. That finding was based on respondent's feigning his own death by drowning and compounding that act by concealing his whereabouts for five weeks, despite knowledge of an official investigation to locate him.
Respondent does not deny the essential facts but asserts that the acts of misconduct resulted from a psychological disorder and neither were intended to nor did they result in personal gain. Respondent thus contends that the Court should not follow the Board's recommendation that he be suspended from the practice of law.
Based on our independent review of the record, we find clear and convincing evidence that respondent engaged in conduct proscribed by RPC 8.4(c) and (d) and that a six-month period of suspension is warranted.
As noted, to his credit, respondent did not deny the material factual allegations of the complaint but rather questioned only whether the facts established an ethical violation. Respondent's version of the facts is as follows: Respondent had been practicing law in New Jersey with an unblemished record for thirty years when the events that gave rise to this complaint occurred. On November 7, 1989, depressed as a result of his wife's incessant and repeated interrogations concerning a recently-disclosed extra-marital affair with Martha Heath, respondent arranged with Ms. Heath to leave New Jersey. After leaving contrived evidence on Long Beach Island designed to give the impression that he had drowned, Ms. Heath drove respondent to New Brunswick where he boarded a train to Baltimore. He took an apartment near Easton, Maryland under an assumed name. Respondent remained there for approximately five weeks before returning to New Jersey on December 14, 1989, after the Morris Plains Police Department and the Morris County Prosecutor's Office located him.
At the time of his "disappearance," respondent was a part-time municipal court Judge in the Borough of Morris Plains, and was engaged in the practice of law in Morris Plains with a partner and associate. He was responsible for sixty to seventy files. Respondent asserts that although he told neither his partner, associate, nor clients that he was leaving New Jersey for an indefinite period, he knew that his partner and associate could handle his caseload in his absence. As it turned out, no client left the firm as a result of respondent's conduct. He was removed from office as a municipal court Judge by order of the Superior Court.
Respondent argues that this case presents a novel situation in which the Court must decide whether conduct that would otherwise be personal and private may form the basis of an ethical violation. He argues that except for the public expenditure of funds, which the respondent never anticipated, respondent caused no injury except for that suffered by his family. Further, respondent argues that his psychotherapist's testimony established that his conduct not only was aberrational but was the product of a psychiatric disorder. That disorder, stemming from his torn desire at once to join his life with Ms. Heath, yet to avoid causing the pain to his wife or children attendant to a divorce, prevented him at the time from understanding the options open to him. Those actions, which were doomed to failure from the start, were the result of respondent's confused state and were not rationally thought out.
In a long series of cases, the Court has examined the extent to which evidence of compulsion may tend to exculpate conduct that would otherwise be unethical. Although those cases usually have arisen in the context of knowing misappropriation of clients' funds, the principles are applicable here. We start with the proposition that "there may be circumstances in which an attorney's loss of competency, comprehension, or will may be of such a magnitude that it would excuse or mitigate conduct that was otherwise knowing and purposeful." In re Goldberg, 109 N.J. 163, 168 (1988) (citing In re Jacob, 95 N.J. 132, 137 (1984)).
Almost invariably, however, we find that the attorney has not lost comprehension or competency but rather has yielded to the compulsion, and whether the compulsion is due to drugs, gambling, or alcohol, "dependent attorneys retain an area of volition sufficient that we cannot distinguish these attorneys from those who yield to the equally human impulse to avert shame, loss of respect, or family suffering." In re Lobbe, 110 N.J. 59, 66 (1988). Although we understand that compulsive behavior may lead to misconduct, we will not allow the public to go unprotected, especially those who are clients. Thus, in In re Yaccarino, 117 N.J. 175, 196 (1989), we measured the attorney's misconduct by whether he had "known that what he was doing was unethical and improper, and that he could have refrained or desisted from doing what he did." We note that in this case there is no psychiatric evidence that respondent was at any time out of touch with reality or unable to appreciate the ethical quality of his acts. His medical expert conceded that he "did understand what he was doing and [the] potential consequences of what he was doing." He may have been under a severe compulsion to engage in the conduct but he did not lack the ability to understand the nature of his acts.
We recognize that in some instances lawyers may fall victim to a desire to encourage a relationship with another and thus may engage in conduct that is "aberrational and not likely to occur again." In re Farr, 115 N.J. 231, 236 (1989). Accord In re Giordano, 123 N.J. 362, 368 (1991) (desire to gain favor with young woman was isolated act that was an aberration in an otherwise unblemished career). That mitigation served only to prevent the imposition of the most severe sanctions. Those attorneys, however, did receive substantial periods of suspension.
The District Ethics Committee found, and we agree, that the respondent had willingly and voluntarily staged his death. Whatever credence one may give to the effect of the stress-induced anxiety of a troubled marriage and the impulsive nature of the act, unravels in light of respondent's calculated disappearance (he left a note for his wife designed to alert her to the place of his ...