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 Motion for Final Discipline Based Upon a Criminal Conviction filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB), seeking disbarment of Rodney B. Jones, pursuant to Rule 1:20-6(c)(2)(i). That motion was based on respondent's plea of guilty to the solicitation of a gift while a deputy attorney general in violation of N.J.S.A. 2C:27-6a.
The DRB recommended by a vote of 4-2 that respondent be disbarred. The DRB disagreed not on the severity of respondent's transgression but on the severity of the discipline. Two members would have imposed a three-year suspension. One of the Dissenting members was not persuaded "that respondent's conduct clearly and conclusively demonstrates that 'his ethical deficiencies are intractable and irremediable' In re Templeton, 99 N.J. 365, 374, 492 A.2d 1001 (1985), such that disbarment [was] the only appropriate discipline." Two members did not participate. Our independent review of the record leads us to accept the DRB's recommendation.
Respondent was admitted to the New Jersey bar in 1986. At the time of his offense, he was a Deputy Attorney General assigned to the Department of Transportation. His criminal offense, however, was related to his prior assignment as counsel to the Professional Boards, including the New Jersey Board of Psychological Examiners.
While respondent was serving as counsel to the Professional Boards in early 1990 he encountered Dr. Alvin Olesh, the person from whom he solicited a payment. Dr. Olesh had filed a complaint against Dr. Clairfield, a psychologist, seeking revocation of that doctor's license to practice psychology. Respondent, as counsel to the Board, had asked Dr. Olesh for further information about his complaint. Prior to October 2, 1990, respondent had met Dr. Olesh only twice.
In May 1990, after respondent had been reassigned to represent the Board of Transportation, he first communicated with Dr. Olesh. At that time respondent was under severe emotional and financial stress. In January 1990, his father, with whom he had been very close, died, leaving debts of $80,000. Respondent and his mother both feared that those debts would force his mother to lose her home. In May 1990, his car was stolen in Newark and the insurance company would reimburse him only to the extent of $1,000 for his car. In 1989 he had been discharged from personal bankruptcy, and thus he was unable to borrow from more conventional sources.
All of respondent's conversations with Dr. Olesh were tape-recorded. Both the DRB and respondent rely on the affidavit of Detective Sergeant Landsky of the New Jersey State Police, who was assigned to investigate respondent's alleged bribe of Dr. Olesh, to establish the basic facts of respondent's contacts with Dr. Olesh. Those facts are summarized in Detective Sergeant Landsky's affidavit, as follows:
7. . . . During the conversation . . . Jones advised [Dr. Olesh] that he was having financial problems and needed assistance. Jones advised Dr. Olesh that he needed either $1,500 or an automobile. Dr. Olesh asked Jones what he could do for him in return. Jones advised Dr. Olesh that he was now with the Department of Transportation and no longer assigned to the Professional Boards. He said that, while he no longer had any direct or indirect participation in the matter pending before the Board, he could keep Dr. Olesh posted with respect to the progress of the case. Additionally, Jones indicated that he would be willing to speak to members of the Psychological Board with respect to the case but did not believe that he would be in a position to influence the Deputy Attorney General handling the matter. Dr. Olesh then asked how and when DAG Jones planned to repay the loan if it was provided. Jones indicated that he did not, in fact, plan on repaying the loan but, rather, would work it off by doing legal work. Jones did state to Dr. Olesh that he could possibly expedite the matter through the Professional Board.
Respondent and Dr. Olesh had no further communication until August 1990. At that time, respondent, who had anticipated receiving $5,000 from the insurance company for his stolen automobile, was informed by the insurance company that it would pay him only $1,000 for his stolen car. The Office of the Attorney General refused respondent's request to allow him to sue the insurance company. The day after the Office of the Attorney General told him that he could not sue the insurance company, he attempted to communicate with Dr. Olesh. Apparently, he did not speak to Dr. Olesh until September 29, 1990. The details of that conversation are as follows:
9. * * * During their conversation, Rodney Jones told Olesh that he was in a new position and he did not want to put himself in a situation where he could be fired from the office by doing anything unethical. He could only provide Olesh with information that he knows about; information that is public. He specifically told Dr. Olesh, "I could never provide you with confidential information. I could never undermine or have any input and/or influence the Board in any manner." He further indicated that even if he could he wouldn't because "my license and career are too important." Dr. Olesh and Jones proceeded to discuss the pending complaint against Dr. Clairfield. Jones indicated that he didn't believe the Board was going to revoke Clairfield's license. He informed Olesh that he keeps in touch with the Board members, with whom he had developed a friendship. At one point, Jones told Olesh that if he were to tell Olesh about any complaints before the Board that had not been made public, then he would have a "major problem." He further explained "I would be obtaining information that you are not entitled to . . . by naming people. The only way I can get that information is by going to the Board office and looking through the file, which I have access to because I am a Deputy. But believe me they would fry my ass."
10. * * * Jones also indicated that he is now going to pay Olesh back and wants to sign a Promissory Note memorializing the loan. Jones requests $2,500 from Olesh, which would put him back on his feet. He tells Olesh that he expects a raise in December and that he anticipates that the Attorney General's Office will approve that raise. . . .
11. During the conversation, Dr. Olesh reminded Jones that in his first telephone call, of May 20, 1990, he indicated that he wasn't going to pay the money back and would do legal work for Olesh. Jones responded "I want to legitimize . . . alright . . . I don't want you to just give me money and . . . lets say anything happens, lets say you weren't satisfied with what the Board did; and somehow you get angry and you slipped down and you told the (Attorney General) that you gave this guy money to give you the information. Further in the conversation, Jones indicates that the $2,500 is not a lot of money. Certainly he indicates it is not enough to lose his job or career over. He admonished Olesh to be sensitive about his position. Olesh asked Jones what Jones could get him by way of information. Jones inquires as to what kind of information. Jones asks Olesh if he would still give him the $2,500 if he did not get any information in return. After making that statement he advises Olesh that he only said that because he knew Olesh was recording the conversation.
Respondent and Dr. Olesh had further telephone conversations on September 30, ...