On an order to show cause why respondent should not be disbarred or otherwise disciplined.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
This disciplinary proceeding arose from a complaint against respondent, Matthew E. Segal. The District Ethics Committee (DEC) summarized the allegations against respondent:
That during the relevant periods of 1989, respondent was engaged as Municipal Court Prosecutor for the Township of Cherry Hill.
That while so engaged, respondent's conduct in the preparation, handling and presentation of a matter entitled State vs. Barry M. Weinberg, which involved a charge of "allowing an unsafe vehicle to be operated" in violation of N.J.S.A. 39:3-44 constituted gross negligence on the part of respondent in violation of R.P.C. 1.1(a).
That respondent did not act with due diligence in the preparation, handling and presentation of this matter in violation of R.P.C. 1.3.
Concluding that respondent's conduct had violated RPC 1.1(a) and 1.3, the DEC recommended public discipline. On review, the Disciplinary Review Board (DRB), with one member Dissenting, determined that the evidence did not clearly and convincingly establish that respondent's conduct had violated the Rules of Professional Conduct. The DRB recommended dismissal of the complaint.
The underlying facts are complex and tragic. In February 1989, an automobile owned by Superior Court Judge Barry Weinberg and operated by his son, Dr. Howard Weinberg, struck and killed John Stein, the son of a Cherry Hill police lieutenant, and severely injured his companion, Marni Bellovin. Although driving at night, Dr. Weinberg apparently had been operating the vehicle without working headlights. The record before the DEC established that Judge Weinberg had been following his son in a different car and that the car driven by Dr. Weinberg had failed inspection several months earlier. Investigation of the accident and related events resulted in a complaint against Judge Weinberg, charging him with allowing an unsafe vehicle to be operated, contrary to N.J.S.A. 39:3-44. Dr. Weinberg was indicted for death by auto. Prior to trial on the death-by-auto indictment, Dr. Weinberg was admitted to Pretrial Intervention. See Rule 3:28. Dr. Weinberg was also charged with several traffic violations, to which he ultimately pleaded guilty, resulting in fines of $250.
The charges against Judge Weinberg were scheduled initially to be heard in the Cherry Hill Municipal Court on May 3, 1989, but the matter was adjourned. On May 12, 1989, this Court transferred the case to the Superior Court, Law Division, Burlington County. On May 24, 1989, the Camden County Assignment Judge informed the clerk of the Cherry Hill Municipal Court that the Weinberg matter had been transferred to the Burlington County Assignment Judge. On June 21, 1989, the Burlington County Assignment Judge informed respondent and Judge Weinberg's attorney that trial of the matter would take place on July 19, 1989, at 9:00 a.m., and instructed both parties to communicate with the court promptly if unable to proceed on that date. On June 27, 1989, Judge Weinberg's attorney notified the trial court and respondent that the scheduled trial date was acceptable. Respondent did not reply to the letter from the trial court. Respondent testified before the DEC that when he first received the letter, he believed the matter was an ordinary traffic violation:
I assumed that I was going to be handling this case at the initial time that I got this letter but I also assumed that it was a run-of-the-mill-traffic case, the only difference being that it involved a Supreme [sic] Court Judge and that I would have to prosecute it in the same fashion I had prosecuted all the other cases that I had prosecuted over the years and I would go to court and if there were witnesses to be subpoenaed they would be there. I would go over with them whatever the testimony was and prosecute the -- present the prosecution on behalf of the State, that's how it works in municipal court.
Respondent did not interview witnesses or arrange for their subpoenas prior to the designated trial date, nor did he take any steps to prepare for trial. The record before the DEC revealed that there had been twelve witnesses to the accident, three of whom had given sworn statements to the Cherry Hill Police Department indicating that Dr. Weinberg's vehicle had been driven without functioning headlights at the time of the accident.
Respondent testified that it was not until early July that he became aware of the facts underlying the charge against Judge Weinberg:
I do not recall precisely when I learned in July that the Barry Weinberg case was an outgrowth of the Howard Weinberg case. In fact, I didn't know about the Howard Weinberg case. I know that and I know this subsequently because I have seen copies of newspaper clips that there were newspaper stories about the death of Lieutenant Stein's son.
At the time that I received the letter from [the Judge] in June of 1989 and up until the time when I learned of all the surrounding * * * facts of this case, it was not part of my common knowledge that there had been an automobile accident involving the son of a Supreme [sic] Court Judge and the son of a Cherry Hill police officer.
I may have heard something about an accident in that vicinity but the fact of Judge Weinberg's son and Lieutenant Stein's son were only learned by me sometime in July.
Respondent testified that when he had learned about the fatal accident, he had assumed that either the county prosecutor or the Attorney General would prosecute the case. Deputy Attorney General John Wynne had presented evidence to the grand jury that had indicted Dr. Weinberg for death by auto.
The evidence regarding respondent's efforts to verify that he would not be responsible for prosecuting Judge Weinberg is conflicting. During argument of the motion for adjournment prior to trial of the Weinberg matter, on July 19, 1989, the following colloquy occurred:
Mr. Segal: I thought that I would have an opportunity over the past couple of weeks to talk to the attorney general. I finally got a call --
The Court: Well, surely there was such an opportunity?
The Court: Surely there was such an opportunity?
Mr. Segal: Well, I didn't get a call back from the attorney general who had been on vacation until late last week. And he had a -- he had gotten back home and was trying to explain a very complex case to me in a short period of time from his backyard. He had been on vacation. That is the person who had handled the bulk of this.
However, respondent acknowledged before the DEC "that the transcript says I had been trying to reach him for a couple of weeks and that is not my position, it was more like a couple of days." In describing to the ...