On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For dismissal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein.
The District Ethics Committee (DEC or local Committee) filed a formal complaint charging respondent, Sally Purrazzella, with violations of RPC 3.3(a)(1), RPC 3.3(a)(4), RPC 4.1, and RPC 8.4(c). Those charges grew out of respondent's alleged alteration of a psychiatric report concerning her client Sandra Saldino and respondent's submission of the altered report to the court in a matrimonial proceeding. After a hearing the local Committee concluded that respondent was guilty of the misconduct charged in the complaint and that she had run afoul of the RPC s cited above. In its report recommending public discipline, the Committee found specifically that respondent or someone at her direction had changed the psychiatric report and had filed it with the court in connection with a cross-motion.
After its independent review of the record the Disciplinary Review Board (DRB) agreed with the findings of the local Committee. A majority of the DRB recommended that respondent be suspended for six months; one member would have imposed a public reprimand, and one member voted to dismiss the charges for lack of clear and convincing evidence that respondent had altered the report. Because the Office of Attorney Ethics (OAE) considered the recommended six-months suspension inadequate, it sought to "expand the record" by oral argument. We granted that application and heard oral argument after issuing an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
Our de novo examination of the record persuades us that the ethics charges against respondent have not been established by
clear and convincing evidence. We therefore dismiss those charges.
The grievant, Sandra Saldino, retained respondent, an experienced matrimonial practitioner, in October 1987 to represent her as plaintiff in divorce proceedings against her husband, whom she had married in 1981 and with whom she had one child, born in September 1985. A major source of irritation in the marital relationship was Saldino's employment arrangement. According to respondent, when the grievant first sought Purrazzella's assistance, she said that she and her husband had initially agreed that she would remain home until their two-year-old son was older, but that her husband's attitude had turned to one of resentment at her not working more than one day per week as a physician's part-time bookkeeper for a net pay of $35.79. Saldino's certification attached to a December 1987 motion for pendente lite support and other relief puts the matter succinctly, if somewhat crudely: "He tells me that his lawyer says that he does not have to support me and that I should go out and get a f___ job."
Respondent viewed the divorce proceedings as relatively uncomplicated: a six-year marriage of two young people with one child, no substantial assets other than a house, the wife working one day a week and the husband working full time with a net annual income of $30,000. Purrazzella did not consider alimony to be a significant issue. The sticking point in resolution of the marital dispute, at least in the beginning, was the house. The husband took the position that Saldino was entitled to no portion of the couple's $171,000 house, encumbered by a $70,000 mortgage, because he had purchased the house before the marriage, using his own money supplemented by funds from his mother. Saldino, on the other hand, contended that she and her husband had bought the house together; that she had put about $5000 of her money into the purchase price; and that although neither of them had lived in the house until after the marriage and title was in the
name of the husband only, they had agreed that it was "their" house.
Throughout the early part of 1988 the parties were unable to settle the matrimonial case. Saldino moved out of the marital home with her son in March 1988, and into her mother's home. At one Early Settlement Panel meeting that same month, Saldino's husband offered her $3000 for her interest in the marital home, which of course did not advance Disposition of the case. Shortly after that conference, Saldino was admitted to the Carrier Clinic (Carrier), a psychiatric-care facility, where she remained from June 13 to August 3, 1988, suffering from depression. Purrazzella, whose letters to the grievant had gone unanswered and whose rapidly escalating bill remained unpaid, did not learn of her client's confinement until Saldino telephoned her in July 1988 to report her whereabouts and the fact that her son was in Saldino's mother's custody.
After Saldino's discharge from Carrier, negotiations toward settlement of the matrimonial case were unavailing, despite considerable progress on issues other than the distribution of the value of the marital home. When the case did not settle, custody of the couple's son -- previously agreed on, until settlement negotiations broke down -- became an issue, and the grievant's ability to discharge her parental obligations assumed importance on the custody question. As the husband's new attorney, Silvio Silvi, argued on his motion for transfer of custody (of which more below), Saldino had returned to live with her mother in Piscataway after being discharged from Carrier on August 3, 1988; on September 5th she had moved out of her mother's home and taken up residence with a female friend who had also been a patient at Carrier; later in September she had moved in with her boyfriend, also a former Carrier patient; on October 9th she had moved back in with her mother; and shortly thereafter she had resumed living with the boyfriend.
Given the foregoing, Silvi asked for a copy of Saldino's medical records from Carrier. Respondent testified at the disciplinary
hearing that she had attempted to have Saldino sign a release for the records, but the grievant had declined to do so. When Silvi issued a subpoena for the records, Carrier refused to comply, relying on the patient-physician privilege. Respondent also asked Saldino to execute an authorization so that she, Purrazzella, could examine the records. Again, according to respondent, Saldino declined, explaining that she might be embarrassed by her statements in those records concerning her husband's family. Saldino agreed, however, to obtain the records herself from Carrier. After she did so, she gave a copy of the discharge summary to respondent and to Dr. Raftery, the court-appointed psychologist, and kept a copy for herself.
As indicated above, the grievant's husband's lawyer, Silvi, then applied to the court for temporary transfer of the custody of the child, pendente lite, to his client, and for production of Saldino's medical records from Carrier. On Saldino's behalf respondent filed a cross-motion to hold defendant in contempt of court and for an order compelling payment of uncovered medical costs, including a $5,000 charge by Carrier. Appended to the cross-motion was Saldino's certification, with a copy of her discharge summary from Carrier -- a document that even the husband's lawyer acknowledged at the DEC hearing was entirely irrelevant to the motion and cross-motion. The version of the discharge summary attached to the motion papers read as follows:
When the patient came to see the writer as an out patient, she stated that because of the symptoms of depression, she is unable to function as a medical secretary and stated that she was always assertive and knew what she wanted to do.
The original discharge summary, however, contained the following:
When the patient came to see the writer as an out patient, she stated that she had been informed by her attorney that if she were to seek gainful employment, this may prejudice her in her ability to obtain a significant divorce settlement. The patient felt torn between that advice and her wish to work, but stated that because of the symptoms of depression, she is unable to function. She had worked for many years as a medical secretary and stated that she was always assertive and knew what she wanted to do. (Emphasis added).
At the DEC hearing Saldino testified that she had signed the original certification while seated at counsel table during argument
on the motion, and that at that time respondent had told her that she, Purrazzella, had removed the emphasized portion of the discharge summary quoted above because "[the doctor] should never have put the statement in there * * * because it was privileged information." Respondent adamantly denied that conversation and insisted that the document had been altered while it was still in Saldino's possession. Although Purrazzella could not pinpoint the time at which or the circumstances under which the certification had been signed, she insisted that having a client sign documents while in court for purposes of argument on a motion would have marked a clear departure from her regular practice, which was to have papers signed in her office. She pointed out that Saldino had frequently driven to her office for just that purpose. Purrazzella said that she had not learned of the alteration until receipt of the grievance, around February 2, 1989.
At the hearing on the motion and cross-motion on December 23, 1988, the trial court, after commenting on the case's "long, stormy history" (respondent's cross-motion was her third enforcement application), ruled that absent evidence of irreparable harm to the child, it could not entertain an application for emergency change of custody. After learning that Dr. Raftery had interviewed the husband and wife, the court, consistent with respondent's request (she had already submitted a copy of the discharge summary to Raftery), directed that the medical records from Carrier be released to the psychologist. Dr. Raftery was to review those records then send them to the court. Any material irrelevant to the custody of the child would then be excised. On ...