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Matter of Musto

December 19, 1997

IN THE MATTER OF VICTOR M. MUSTO, AN ATTORNEY AT LAW.


Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi, Stein, and Coleman join in the Court's 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 Victor M. Musto, an Attorney at Law (D-29-97)

Argued October 21, 1997 -- Decided December 19, 1997

PER CURIAM

Victor Musto (respondent) is an attorney who was admitted to the bar in 1983. He was the subject of a motion for final discipline filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB) pursuant toR. 1:20-13(c). The motion was based on respondent's guilty pleas in federal and state courts to conspiracy to distribute cocaine; possession of methyl ecgonine; conspiracy to possess heroin and cocaine; and possession of heroin and cocaine. The DRB concurred in the recommendation of the OAE that respondent be disbarred for his violation of RPC 8.4(b) by virtue of his convictions. That rule states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Musto used drugs sporadically following his admission to the bar until 1991, when he began using heroin and cocaine heavily. He attributed his drug use to stress related to work, marital problems, his son's cerebral palsy, and his father's illness. At that time, Musto was practicing in Asbury Park. His partners were unaware of his drug use and his firm later reported that nothing in his addictions caused any problems or difficulty to any clients. Ultimately, Musto admitted his addiction to his partners and entered a rehabilitation facility, beginning a series of periods of rehabilitation and relapse.

In 1993, when respondent repeatedly missed deadlines and court appearances, his law firm accepted his resignation. Later that year, the FBI had arranged for Musto's friend (CW) to make a drug buy from him. Ultimately, after the passage of some time, Musto agreed to act as CW's contact and purchased cocaine for CW on three occasions during the summer months of 1993. Those purchases totaled $5,800, of which Musto kept approximately $200 to buy heroin for himself. Following his arrest, Musto agreed to act as an informant for political corruption, fraud, and drug operations in Monmouth County.

Thereafter, on two occasions in October 1993, Musto was arrested by local police and charged with possession of cocaine and heroin. That same month, Musto entered a rehabilitation facility again and was discharged the following month.

Following his arrests on the state possession charges, federal authorities indicted Musto for conspiracy to distribute cocaine and for distribution of cocaine, all arising out of the transactions with CW. He pled guilty to the conspiracy count. As part of the plea agreement, Musto again entered a rehabilitation facility where he remained from February to May 1994. He again relapsed in June 1994 and re-entered the rehabilitation facility. Thereafter, in April 1995, a federal court sentenced Musto to a six-month custodial term and three years of supervised release. Because he had cooperated with the FBI in its Monmouth County investigations, the court significantly reduced Musto's sentence under the Federal Sentencing Guidelines.

Shortly after sentencing, Musto again relapsed. On April 19, 1995, he was again arrested by local police when he was observed purchasing drugs. When the police attempted to pull his vehicle over, Musto attempted to evade them and instructed his passenger to throw the drugs (heroin) out the window. Later that month, he was indicted for possession of cocaine and heroin, for eluding an officer, for tampering with physical evidence, and for hindering apprehension or prosecution. That same day, he pled guilty to possession of methyl ecgonine, conspiracy to possess heroin and cocaine, and possession of cocaine and heroin. The remaining charges were dismissed. The court sentenced him to three concurrent four-year terms of imprisonment.

Musto served his state and federal sentences from May 1995 to September 1996, during which time he completed an intensive drug program and attended Alcoholics Anonymous (AA) meetings, as well as Narcotics Anonymous (NA) meetings. He is currently on federal probation and will remain on that status until October 1998. He continues to attend both group and individual counseling several times weekly and has random urine drug screening twice weekly. The results of his tests have been negative. He also attends AA meetings three times a week.

The Supreme Court ordered Musto to show cause why he should not be disbarred or otherwise disciplined.

HELD: Given the mitigating circumstances involved in this case, including Musto's efforts at rehabilitation, a three-year retroactive suspension, not disbarment, is the appropriate discipline for respondent on the federal conspiracy charge.

1. A criminal conviction is conclusive evidence of guilt in a disciplinary proceeding and the sole issue is the extent of discipline to be imposed. (p. 8)

2. The obligation of an attorney to maintain the high standard of conduct required by a member of the bar applies even to activities that may not directly involve the practice of law or affect his or her clients. (p. 8)

3. Offenses attributable to drug addiction warrant strong disciplinary measures. (pp. 8-9)

4. Although a three-month suspension is a generally appropriate measure of discipline for possessory crimes related to controlled dangerous substances, some offenses attributable to drug addiction may warrant stronger disciplinary measures. (pp. 10-12)

5. Although disbarment of an attorney convicted of distribution of controlled dangerous substances would be appropriate if the distribution were done for gain or profit, disbarment does not automatically result from a distribution conviction. (pp. 13-15)

6. Unlike other attorneys who have been disbarred for drug distribution, Musto's misconduct did not relate to the practice of law, nor did he use his professional status or skills as an attorney to assist in his criminal acts. (pp. 15-16)

7. Musto's misconduct was significantly different from the egregious conduct of other attorneys who have participated in extensive criminal narcotics conspiracies in that he did not intend his sales to CW to result in public distribution. Musto's sales were profit-related only to the extent that he used the $200 to feed his own heroin addiction. (pp. 16-17)

8. Although the use of illegal drugs by an attorney is unequivocally condemned, efforts at rehabilitation will be considered in deciding the appropriate discipline. Had Musto's drug dependency led to theft of client funds or genuine involvement in organized criminal distribution of drugs, he would be disbarred. (pp. 17-19)

10. To preserve the public's confidence in the legal profession, stringent conditions will be placed on Musto's return to practice, including continued counseling and testing for as long as is necessary. In addition, Musto's readmission will be contingent on his working in a supervised capacity until otherwise ordered by the DRB. (p. 20)

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join the Court's opinion.

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

PER CURIAM

This attorney disciplinary proceeding arises 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) pursuant to Rule 1:20-13(c). The DRB concurred in the OAE recommendation that Victor M. Musto (respondent) be disbarred from the practice of law. The motion was based on respondent's guilty pleas in federal and state courts to conspiracy to distribute cocaine; possession of methyl ecgonine, a metabolite of cocaine; conspiracy to possess heroin and cocaine; and possession of heroin and cocaine. RPC 8.4(b) states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." In ethical proceedings, the conviction of a criminal offense conclusively establishes guilt of the offense charged. In re Lunetta, 118 N.J. 443, 445, 572 A.2d 586 (1989) (citing R. 1:20-6(b)(1)). In assessing the measure of discipline to be imposed, we may consider background facts and circumstances. In re Spina, 121 N.J. 378, 389, 580 A.2d 262 (1990). We draw those background facts and circumstances from presentence reports, plea agreements, and other reliable documentation surrounding the conviction.

I

From the record in this case, the following background facts emerge. Respondent was admitted to the bar in 1983. He used drugs sporadically until 1991, when he began using heroin and cocaine heavily. He attributes his drug use to stress related to work, marital problems, his son's cerebral palsy, and his father's sickness.

At the time, respondent was practicing law in Asbury Park, New Jersey. His law partners were reportedly unaware of his drug use. Ultimately, respondent admitted his addiction to his employer and entered Clear Brook Manor, in Pennsylvania, for rehabilitation. Although he completed the program, he did not participate in a recommended follow-up plan and relapsed in 1992. In March 1993, when respondent increasingly missed deadlines and court appearances, his law firm accepted his resignation. Yet, despite his drug use, respondent was never the subject of any ethics complaints. ...


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