On an order to show cause why respondents should not be disbarred or otherwise disciplined.
Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
This is an attorney-disciplinary proceeding in which respondents, Robert T. Norton and Richard A. Kress, were found guilty of ethics violations for conduct contributing to an improper dismissal of a drunk-driving case. The municipal court dismissed the case after Kress, the municipal prosecuting attorney, told the court that the arresting officers did not want to proceed with it. Kress, apparently aware that the officers had improper reasons for not proceeding with the case, did not so inform the court.
Norton, who represented the DWI defendant, had contributed to the officers' decision not to proceed with the case against his client. Norton also had successfully moved to have the case transferred to a different municipal court where Kress, his former law partner, was the prosecutor.
Following ethics charges against respondents, the District Ethics Committee (DEC) found that they had violated the Rules of Professional Conduct, and recommended that they receive private reprimands.
A majority of the Disciplinary Review Board (DRB) agreed that respondents' conduct constituted ethics violations but recommended that Norton be suspended from the practice of law for six months and that Kress be suspended for three months. The DRB minority recommended that respondents receive public reprimands.
Our independent review of the record leads us to conclude that a three months suspension from the practice of law is the appropriate sanction for both respondents.
Respondents are both experienced attorneys. Norton was admitted to the New Jersey bar in 1972. For three-and-a-half years before he went into private practice he was a public defender assigned to Union County, trying homicide, rape, and robbery cases. He currently is a partner in a law firm in Westfield, New Jersey.
Kress was admitted to the New Jersey bar in 1979. Since 1982 he has been the municipal prosecutor for Clark, New Jersey.
Respondents' ethical violations arose from the following events: On January 30, 1990, Westfield police officers Andrew Gallagher and David Luce arrested Westfield resident Joseph Donnelly, a New York attorney, who was returning home from dinner in New York. The police stopped Donnelly in front of his house. He was charged with three traffic violations: drunk driving in violation of N.J.S.A. 39:4-50, failure to stay within a single lane in violation of N.J.S.A. 39:4-88(b), and failure to obey a stop sign in violation of N.J.S.A. 39:4-144.
Donnelly told the officers that he had consumed a few drinks that evening at dinner. The officers then administered several balance and coordination tests. In his report, Officer Gallagher stated that Donnelly performed those tests poorly. According to Officer Gallagher, Donnelly repeated his poor performance at the police station, where his performance was videotaped. Gallagher, however, was wrong about Donnelly's videotaped performance. Gallagher's supervisor, Detective Lieutenant Bernard Tracy, testified that it was one of the best performances he had ever seen. That Donnelly's videotape standing alone would not have been sufficient to establish that Donnelly was intoxicated is now undisputed. After those tests, Officer Gallagher administered two breathalyzer tests to Donnelly. One test revealed a .16% blood-alcohol level, and the other .15%. Both levels were above the .10% level for intoxication.
At the police station Donnelly showed Officer Luce a 200 Club Card and asked whether showing it to the police officers earlier would have made a difference. Officer Luce gave a negative response but Officer Gallagher approached, looked at the card, and indicated that showing it would have made a difference. The 200 Club is an organization of businesspersons and professionals who support law-enforcement and fire services in New Jersey, and provide monetary support to the families of police officers and firefighters injured or killed in the line of duty.
Donnelly asked Norton, a close friend, to represent him. Norton agreed to defend him free of charge.
Norton's Meeting with Gallagher
Shortly after Donnelly's arrest, Norton unsuccessfully attempted to communicate with Officer Gallagher. Eventually, Norton dropped in at the police station one evening and met Officer Gallagher. Neither Norton nor Gallagher was very specific about what had occurred at the meeting. Although the two did not know each other before their meeting, Gallagher described Norton as friendly. Norton told Gallagher that he was well-acquainted with many police officers. Detective Lieutenant Tracy's name arose during their conversation. Gallagher thought that Norton was a friend of Tracy, which he is. Norton admitted that he had asked Gallagher to give Donnelly "a break," and described Donnelly as "a fine citizen of Westfield and a substantial supporter of law enforcement with some other counties."
Gallagher testified that Norton had never requested that he drop the DWI charge against Donnelly. Norton explained that by asking Gallagher to give his client a "break," he was merely seeking minimal fines and merger of two of the traffic offenses.
During their conversation, Donnelly's contributions to the 200 Club were also mentioned; Gallagher and Norton disagree on who raised that topic. However, that Gallagher had known that Donnelly was a member of the 200 Club since the date of Donnelly's arrest is clear.
Norton's Transfer of the Case
Donnelly's case was to be tried in Westfield Municipal Court. The next appropriate venue was Mountainside Municipal Court. Norton, however, after much effort, arranged for the case to be tried in Clark Township, where his former law partner, Kress, was the municipal court prosecutor. The first count of the DEC's complaint against Norton charges that he had arranged that transfer without full disclosure of all material facts, in violation of RPC 3.3(a)(1), 3.3(a)(5), 3.3(d), and 8.4(c).
Donnelly claims that he insisted that Norton transfer the case from Westfield and Mountainside because he and Judge Edward J. Hobbie, the municipal-court Judge of Westfield, and Judge Robert A. Ruggiero, the municipal-court Judge of Mountainside, were members of the same golf club and Donnelly did not wish to be embarrassed. He was very concerned about his reputation in the community. Moreover, Judge Hobbies son and Donnelly's son played golf together. Donnelly insists that it was at his initiative that the change of venue take place.
Regardless of who initiated the transfer, Norton went to great lengths to arrange it. First, he telephoned the Clerk of the Westfield Court and requested that the matter not be heard in either Westfield or Mountainside because of the common golf memberships, but be transferred to Clark Municipal Court. Norton confirmed that request in a letter to the Westfield Clerk.
Approximately a week later Norton learned the case had not been transferred because Judge Hobbie saw no need for the transfer. Norton then telephoned Judge Hobbie. Because Norton was concerned about Donnelley's desire to not suffer embarrassment, Judge Hobbie finally agreed to the transfer. He instructed the Clerk to transfer the matter to another municipality or list it in Westfield when he would not be sitting.
The Clerk then transferred the case to Clark Municipal Court. However, Clark was an inappropriate venue because pursuant to an order issued three-and-a-half years earlier, the appropriate venues in the event of disqualification of Westfield were in the following order: Mountainside, Springfield, and Plainfield. Norton was not aware of that order. The Westfield Clerk testified that she had suffered a "lapse of memory" when she reassigned the case to Clark. Although the transfer to Clark resulted ultimately from the Clerk's mistake, we note that Norton displayed a lack of candor by failing to inform either Judge Hobbie or Judge Ruggiero that Donnelly had been a defendant before the latter only a year earlier on a careless-driving charge. Norton claims his client was more embarrassed to appear before his fellow golf-club members on the DWI charge because it was more serious than the careless-driving charge.
The issue is whether Norton arranged the transfer to Clark so that his former partner, Kress, could prosecute the case. Kress was not involved in the transfer and was not charged with any ethics violations in connection with it. The DEC, however, charged both Kress and Norton with violations of Rule 1:15 and various opinions of the Advisory Committee on Professional Ethics (ACPE) because of their relationship as former "office associates."
1. Respondents' Partnership
On July 1, 1987, Norton and Kress, together with two other attorneys, Donald Hamilton and Jim DeRose, formed a partnership to last for a one-year trial period. The new partners drafted an agreement to reflect that capital accounts were not to be merged but that the partners would work together for one year. After just a few months it became clear that the partnership would not work. Kress and Norton were at odds with each other. At the end of the year, they terminated the partnership. Norton and DeRose formed a partnership, and Kress and Hamilton became sole practitioners.
As evident from a memorandum from Norton to Kress dated July 19, 1988, the partnership dissolution was not friendly:
I recognize that the firm's dissolution has created harsh feelings, but as professionals, we should avoid discussing those differences or reasons for breaking up with clients.
When the partnership dissolved, the four former partners continued to occupy their respective offices in the same building. Kress subleased a portion of the second floor, paying rent of $510.96 month-to-month. He shared a secretarial area with Hamilton.
Although the former partners shared office space, they did everything they could to insure that they were neither partners nor office associates. Their offices were separate. The entrances to their offices were separate and their respective secretarial areas were separate. They employed separate personnel, letterhead, telephone numbers, malpractice insurance, files, accounts, and trust accounts. In addition, they had removed every sign with the former partnership's name on it except one.
However, Kress and his associate did have access to Norton's library, which they occasionally used as a conference room. Additionally, Norton used Kress's fax machine because although Kress owned the ...