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Matter of Howard

April 12, 1996

IN THE MATTER OF OLIVIA C. HOWARD, 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 the Court's opinion.

SYLLABUS

In the Matter of Olivia C. Howard, An Attorney at Law (D-48-95)

Argued January 29, 1996 -- Decided April 12, 1996

PER CURIAM

Olivia Howard and her husband, Frank Howard, shared a law office in East Orange. Mr. Howard was also a police officer in Newark.

On July 3, 1989, the Howards met to discuss some of their financial difficulties. Using Mrs. Howard's car, they drove to a construction site so they could talk. An argument ensued. Mr. Howard, who was in the front passenger seat, exited the car. When Mrs. Howard backed up the car to follow her husband, the passenger door "flew open" and became caught in some fencing at the construction site. The door hinge broke and the door dragged on the ground as Mrs. Howard drove.

Mrs. Howard followed her husband as he walked away. After going the wrong way down two one-way streets, Mrs. Howard pulled into the driveway of a health clinic. When Mr. Howard approached the car, she got out to seek his assistance with the door. Having had no success, Mrs. Howard got back into the car, hit the gas, and reached for the door at the same time. She ran over her husband, who died later that day as a result of his injuries.

Mrs. Howard was charged with murder by a Bergen County grand jury. She testified that she did not see her husband step in front of the car because she was reaching for the door as she was accelerating. Although a jury acquitted her of murder, it did find her guilty of death by auto. She received five years probation, 500 hours of community service, $17,500 in fines and penalties, and a two-year revocation of her driver's license. The Appellate Division affirmed her conviction and sentence.

On August 2, 1994, the Office of Attorney Ethics (OAE) filed a motion for final discipline with the Disciplinary Review Board (DRB). The OAE recommended a term of suspension. After a hearing, the DRB dismissed the motion for discipline. The Board concluded that the criminal offense did not relate to the practice of law and did not adversely reflect on Howard's honesty, trustworthiness, or fitness as a lawyer.

The Court granted the OAE's petition for review of the DRB's decision.

HELD: Respondent's conviction for death by auto warrants the imposition of discipline. She is suspended from the practice of law for three months and until the further Order of the Court.

1. A criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. An attorney's obligation to maintain a high standard of conduct has been deemed to apply to activities that may not directly involve the practice of law. (pp. 4-6)

2. Respondent was convicted of death by auto, which is a "criminal homicide." It entails a gross deviation from the conduct that a reasonable person would expect under the circumstances. The Legislature has recently upgraded death by auto to make it a second-degree offense with a presumption of imprisonment for five to ten years. ...


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