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Matter of Alcantara

December 1, 1995

IN THE MATTER OF J. DAVID ALCANTARA, AN ATTORNEY AT LAW.


On an Order to show cause why respondent should not be disbarred or otherwise disciplined.

Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

IN THE MATTER OF J. DAVID ALCANTARA, An Attorney at Law (D-13)

Argued September 27, 1995 -- Decided December 1, 1995

PER CURIAM

J. David Alcantara was admitted to practice law in New Jersey in 1988 and practices law in Ventnor, New Jersey. In 1992, Alcantara represented Wilfredo Carmona in connection with an indictment for third-degree theft of a church bell. Carmona elected to go to trial while three co-defendants entered guilty pleas. The codefendants agreed to testify for the State against Carmona. It is alleged that Alcantara engaged in improper and unethical conduct by attempting to persuade two of the co-defendants not to testify against Carmona.

Lonnie Campbell and Johnny Nieves, co-defendants of Carmona, were each represented by an attorney. As part of plea agreements, Campbell and Nieves pled guilty to third-degree theft and agreed to testify for the State at Carmona's trial. In return, the State agreed to recommend noncustodial terms.

On March 20, 1992, Campbell and Nieves appeared in court for sentencing. Because they had not yet testified in the Carmona trial, Atlantic County Assistant Prosecutor Housel requested and was granted a postponement of the sentencing. Shortly thereafter, Housel discovered that Alcantara had improper conversations with Campbell and Nieves after the court appearance. Campbell told Housel that Alcantara informed both he and Nieves that the prosecution intended to abandon the plea agreement once they testified against Carmona and that they both should take the Fifth Amendment and not testify against Carmona. Campbell further stated that Alcantara gave them business cards and asked them to make appointments to come in and discuss the matter. The testimony of Nieves was consistent with that of Campbell. In addition, the attorneys for Nieves and Campbell testified that Alcantara did not request permission to speak with their clients.

According to Housel, several weeks after March 20, 1992, Alcantara turned over to the Prosecutor's Office a video tape recording that showed Campbell and Nieves engaged in an alleged drug transaction. Campbell and Nieves were prosecuted and convicted for distribution of a controlled dangerous substance (CDS). The theft charge against Carmona eventually was dismissed because the prosecutor was unwilling to forego prosecuting the CDS offenses in order to obtain favorable testimony from Campbell and Nieves in the theft case against Carmona.

Alcantara testified that he was approached by a hispanic male while standing in the hallway outside the courtroom and was asked by the man if he was a lawyer. The man told Alcantara that he had been charged with theft of a bell. Alcantara, realizing that this man was a co-defendant of Carmona, identified himself as Carmona's attorney. Another man wearing a green jacket also approached, but said nothing. Alcantara stated that he asked the hispanic man if he had a lawyer and that the man told him yes but that he was unhappy with his lawyer. Alcantara gave both men a business card and told them to contact their attorney so they could develop a united defense. Alcantara stated that this Discussion lasted less than sixty seconds. Alcantara further testified that Carmona gave him the video tape recording of the drug transaction and that, approximately two to three weeks after March 20, 1992, he delivered the video tape to the Prosecutor's Office.

The District I Ethics Committee (DEC) concluded that the evidence was clear and convincing that Alcantara's testimony was not credible and that the testimony of Campbell and Nieves was credible. The DEC found that Alcantara committed unethical conduct by knowingly disobeying an obligation under the rules of a tribunal (RPC 3.4(c)); requesting a person, other than a client to refrain from voluntarily giving relevant information to another party (RPC 3.4(f)); communicating with co-defendants who Alcantara knew or should have known were represented by other attorneys (RPC 4.2); violating the rules of professional conduct (RPC 8.4(a)); and engaging in conduct prejudicial to the administration of Justice (RPC 8.4(d)). The DEC recommended public discipline for those violations.

The Disciplinary Review Board (DRB) found that the testimony of the co-defendants was not credible and recommended dismissal of the ethics complaint. The DRB also concluded that after the co-defendants entered guilty pleas they were no longer parties to the criminal proceedings and Alcantara was, therefore, permitted to speak to them as witnesses without permission from their attorneys.

HELD: J. David Alcantara is reprimanded for violating Rules of Professional Conduct 3.4(c), 3.4(f), 4.2, 8.4(a), and 8.4(b).

1. The DEC had the opportunity to observe the witnesses' demeanor and noted the consistency between their testimony and their prior statements. In addition, the evidence concerning the video tape corroborates the co-defendants' testimony and contradicts Alcantara's testimony. Considered in that light, there is a high degree of circumstantial probability of trustworthiness in the testimony of Campbell and Nieves. (pp. 8-9)

2. The testimony of the attorneys and of Campbell and Nieves clearly and convincingly established that Alcantara spoke to the co-defendants with the knowledge that they were represented by counsel and without the permission of counsel. The DRB's Conclusion that as witnesses, the co-defendants could be freely contacted by Alcantara is erroneous as a matter of law. When a co-defendant enters a guilty plea with a lenient sentence recommendation conditioned on testifying against a co-defendant, the testifying co-defendant is an adversary of the co-defendant who has elected to stand trial. Thus, on March 20, 1992, Nieves and Campbell were adverse-party witnesses. Accordingly, it has been clearly and convincingly established that Alcantara violated RPC 4.2. (pp. 8-11)

3. The DRB's finding that there was no violation of RPC 3.4(f) because Alcantara's advice to Campbell and Nieves not to testily favorably for the State was beneficial to them is erroneous as a matter of law. The rule provides for the conjunctive, and the co-defendants were not relatives or employees or other agents of Alcantara's client. Moreover, because the indictment was still pending against Campbell and Nieves and the lenient sentence recommendation depended on their testifying truthfully against Carmona, Alcantara could not reasonably have believed that advising co-defendants to take the Fifth Amendment or not to testify truthfully would benefit them. The violation of RPC 3.4(f) has been established by clear and convincing evidence. (pp. 11-12)

4. An attorney who violates both RPC 4.2 by speaking to another attorney's client without permission and RPC 3.4(f) by requesting that person to refrain from giving testimony favorable to the State, also violates RPC 3.4(c), RPC 8.4(a), and RPC 8.4(d). (p. 12)

5. Alcantara's unethical behavior was serious. However, it should be noted that: the DRB itself did not fully appreciate that Alcantara's conduct was unethical and clearly violated RPC 4.2; the Court has never previously been required to explain the status of a defendant in a criminal prosecution as a "party" to whom access is not available as it is to non-party witnesses; and the Court has never addressed the appropriate discipline to be imposed on an attorney who violates RPC 4.2. Those considerations require that full weight be accorded to mitigating considerations. (pp. 12-13)

6. Alcantara regrets his conduct; this was an isolated incident on an otherwise unblemished professional record; and he has also performed pro bono legal services in the past. Therefore, under the circumstances, Alcantara is reprimanded for his unethical conduct. But for the fact that this is the Court's first interpretation and application of RPC 4.2, Alcantara's discipline would have been greater than now imposed by the Court. Members of the bar are cautioned that in the future the Court will ordinarily suspend an attorney for the type of violation of RPC 4.2 that occurred in this case. (p. 14)

So Ordered.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this opinion.

PER CURIAM

Respondent Jose David Alcantara was admitted to practice law in New Jersey in 1988 and is engaged in the practice of law in Ventnor, New Jersey. He has no prior ethics history.

These proceedings involve respondent's conduct during his appearance at the Atlantic County Criminal Court House in Mays ...


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