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In re Seelig

June 24, 2004

IN THE MATTER OF JACK L. SEELIG,
AN ATTORNEY AT LAW.



SYLLABUS BY THE COURT

(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).

This is an attorney disciplinary matter in which the Court examines the interplay between an attorney's ethical responsibilities to disclose material facts to a court and the attorney's obligation to be an effective and zealous advocate of his client's rights and interests.

The District III-B Ethics Committee (DEC) filed a formal ethics complaint on September 22, 2000, against Jack L. Seelig, a Trenton attorney, asserting that Seelig had acted unethically during his representation of Jeffrey Poje. Seelig represented Poje in connection with motor vehicle offenses and indictable charges arising from a motor vehicle accident in Ewing on January 1, 1998, in which two persons were killed. The ethics complaint charged, among other things, that Seelig had by certain acts and omissions violated Rule of Professional Conduct (1984) (RPC) 3.3(a)(5) ("A lawyer shall not knowingly fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.")

The conduct at issue occurred on February 25, 1998, in the Ewing Municipal Court when Seelig appeared with his client on the three summonses issued on the motor vehicle violations, each of which indicated an accident involving both personal injury and property damage. According to Seelig, he told the municipal prosecutor his client intended to plead guilty to the charges and, in response to the prosecutor's question, "Do you need me?" Seelig answered, "No."

Seelig did not mention the indictable charges to the prosecutor, who was unaware of them. Seelig knew that under governing case law, if the municipal court accepted his client's guilty pleas to the motor vehicle charges, principles of double jeopardy could bar his client's prosecution on the indictable offenses, aggravated manslaughter and death by auto.

Neither did Seelig mention the indictable offenses when he stood with his client before the judge to enter Poje's guilty pleas. In response to the judge's question, "Injuries or property damage?" Seelig replied simply, "Injuries." The court did not inquire into the extent of the injuries, accepted Poje's pleas, and imposed fines and costs. The prosecutor was not present in the courtroom.

The next day, the municipal court judge reported to the Mercer County Prosecutor that he had erroneously accepted Poje's pleas on the motor vehicle offenses because he had not recognized Poje although he had arraigned him on the indictable charges on January 1. Another circumstance that led to the court's erroneous resolution of the motor vehicle charges was the failure of the municipal court administration to have in place required procedures to cross-reference related criminal and motor vehicle complaints.

On April 22, 1998, the Mercer County Prosecutor was successful in having Poje's pleas vacated based on the substantial defects in the proceeding. Ultimately, Poje's case was remanded for trial on the merits.

In the ethics hearing that followed the filing of the complaint against Seelig, Seelig contended that he had an ethical obligation under the New Jersey Rules to answer any question the judge affirmatively put to him, but that he was not required to reveal unsolicited material facts because to do so would violate his client's Sixth Amendment right to effective assistance of counsel. An expert on municipal court practices and attorney ethics testified in support of Seelig's position.

A majority of the DEC panel concluded that Seelig's conduct was not unethical and dismissed the complaint. The Office of Attorney Ethics appealed to the Disciplinary Review Board (DRB or Board), which reviewed the matter de novo and filed a decision with the Court on June 24, 2002.

A four-member majority of the DRB found clear and convincing evidence of unethical conduct by Seelig and concluded that he should be reprimanded for violating RPC 3.3(a)(5) by failing to disclose that two deaths had occurred and that there were indictable charges against his client. The Board found a violation of RPC 8.4(d) (conduct prejudicial to the administration of justice) by this conduct as well.

Three dissenting members of the DRB agreed with the DEC decision to dismiss the complaint. It was their view that Seelig had no obligation to reveal more than what had been asked of him and that it would be inequitable to discipline Seelig because he had not been on notice that his conduct was wrongful.

The Supreme Court issued an Order directing Seelig to show cause why he should not be disbarred or otherwise disciplined. The Attorney General of New Jersey and the Association of Criminal Defense Lawyers of New Jersey were granted amicus curiae status.

HELD: Neither the client's Sixth Amendment rights nor any other duty to the client would prohibit an attorney in the circumstances of this case from informing the municipal court about pending indictable charges against the client. RPC 3.3(a)(5) requires disclosure in these circumstances to prevent a court from being misled by the attorney's silence. No discipline will be imposed on Jack L. Seelig, however, because he acted in good faith and the issue presented is novel.

1. Seelig acknowledged that his failure to disclose the indictable offenses was knowing, and the information withheld undeniably was material. Most courts and legal commentators consider attorneys to owe both a duty to the client and, as officers of the court, to the legal system. Those interests can be competing. New Jersey recognizes those interests and the Court has taken an approach in its Rules, as exemplified by RPC 3.3(a)(5), that in some circumstances shifts the focus from the client's interest to the legal system and the public interest. Thus, New Jersey's case law has established that RPC 3.3(a)(5) may be violated when an attorney neither affirmatively misrepresents material information to a tribunal nor evades a direct question from a judge, but holds back material information so as to further a client's interest. (pp. 15-26)

2. RPC 3.3(a)(5) is similar to RPC 3.3(a)(3), which requires an attorney to disclose to a court legal authority that is directly adverse to the client's position if the attorney's adversary has not cited it. Both call for the lawyer to act against a client's interests to prevent errors in decision making by a tribunal. (pp. 26-28)

3. Consideration of the disclosure requirement of RPC 3.3(a)(5) must take into account any competing constitutional interest that circumscribes the scope of the rule. In the situation in this case, the Sixth Amendment right of a client to the effective assistance of counsel cannot be invoked to thwart the administration of justice, trial on the indictable offenses. An attorney in these circumstances is not prohibited by a client's Sixth Amendment rights or by any duty owed the client from informing the court of pending indictable offenses and should do so to prevent the court from being misled by the attorney's silence. (pp. 29-32).

4. Seelig erroneously but in good faith believed his duty to his client superseded his obligations under the Rules of Professional Conduct and anticipated the County Prosecutor and municipal court would do their part to identify and coordinate the charges against his client. For these reasons and because of a lack of guidance in previous case law regarding RPC 3.3(a)(5), fairness requires that the ruling of the Court be applied prospectively. No discipline will be imposed on Seelig. (pp. 32-34)

The decision of the Disciplinary Review Board is AFFIRMED in part and MODIFIED in part.

JUSTICE LaVECCHIA, concurring in part and dissenting in part, agrees that the conduct exhibited by Seelig violated the professional duty of candor and good faith to a court required by RPC 3.3(a)(5), but disagrees with the determination not to impose discipline. Because of Seelig's sharp practice before the municipal court, JUSTICE LaVECCHIA would reprimand Seelig.

JUSTICES LONG, VERNIERO, ZAZZALI, ALBIN and WALLACE join in CHIEF JUSTICE PORITZ 's opinion. JUSTICE LaVECCHIA filed a separate opinion, concurring in part and dissenting in part.

The opinion of the court was delivered by: Chief Justice Poritz

Argued June 3, 2003

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

Respondent Jack L. Seelig was admitted to the practice of law in the State of New Jersey in 1972. He has been a certified Criminal Trial Attorney for more than two decades and had not been the subject of disciplinary proceedings before this matter arose. On September 22, 2000, however, the District III-B Ethics Committee (Burlington County) filed a complaint alleging that respondent had violated Rule of Professional Conduct (1984) (RPC) 1.6(b)(2) ("A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal."); RPC 3.3(a)(1) ("A lawyer shall not knowingly make a false statement of material fact or law to a tribunal."); RPC 3.3(a)(5) ("A lawyer shall not knowingly fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure."); RPC 8.4(c) ("It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."); and, RPC 8.4(d) ("It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.").*fn1 The violations asserted in the complaint arose out of certain acts and omissions attributed to respondent during his representation of Jeffrey Poje in an underlying matter involving both motor vehicle offenses and indictable charges. The facts of the Poje case and the conduct of respondent as Poje's attorney are provided insofar as they are necessary for a disposition of the ethics complaint.

I.

On January 1, 1998, at around 2:00 a.m., Jeffrey Poje was driving an automobile that collided with a disabled vehicle being pushed along the right lane of traffic on Route 31 (Pennington Avenue) in Ewing Township. As a result of the accident, the person pushing the vehicle died at the scene and a woman who was behind the wheel suffered severe injuries. She died two days later on January 3, 1998.

Poje initially fled on foot but then turned himself in that same day. He was arrested and charged by the Mercer County Prosecutor with aggravated manslaughter and death by auto in respect of the deceased victim, and aggravated assault in respect of the injured victim. (When the second victim died, the prosecutor amended the charges to reflect an additional count of aggravated manslaughter and death by auto.) Poje's arraignment hearing also took place on January 1 before Municipal Court Judge William M. Lake of the Ewing Township Municipal Court, after which Poje was transferred to the Mercer County Detention Center. On January 5, 1998, the Superior Court set bail at $250,000.*fn2

At some point during the week following his arrest, Poje retained respondent as defense counsel. Respondent engaged in discussions about bail and other matters with William Zarling, the Assistant Prosecutor handling the investigation, until January 9 when respondent was informed that Deputy First Assistant Prosecutor Katherine Flicker had assumed responsibility for the prosecution. During the week of January 12, respondent contacted Flicker. Later, they saw one another and discussed bail issues and Poje's prior driving record. At that time, Flicker told respondent that she would "alert him when [her] investigation was completed so that [they] could talk before the case was presented to [a] grand jury." That week, also, on January 15, 1998, the Ewing Township Police Department issued three motor vehicle summonses against Poje for violations of N.J.S.A. 39:4-96 (reckless driving), N.J.S.A. 39:4-129 (leaving the scene of an accident), and N.J.S.A. 39:4-130 (failing to report an accident). Each of the three summonses indicated an accident involving personal injury and property damage and listed a court date of February 18, 1998.

Respondent filed a Notice of Representation with the Ewing Township Municipal Court on behalf of Poje, entering pleas of "not guilty" to the motor vehicle charges. The filing further requested transportation for Poje from the Detention Center to the municipal court; however, due to administrative oversight, Poje was not brought to the court on February 18 and the matter was carried over one week. On February 25, 1998, Poje appeared before Judge Lake in prison clothing and represented by respondent. It was customary for the municipal prosecutor handling such cases to meet privately with defense counsel beforehand. As to this matter, each attorney gives a slightly different account of their conversation. The municipal prosecutor remembers asking, "What do you got, Jack?" and hearing in response, "I got someone coming over from the jail." The prosecutor recalls walking away at that point. According to respondent, he also said "[M]y matter, State v. Poje, and my client's pleading guilty to the charges." Respondent claims that the prosecutor then said, "Do you need me?" and that he answered, "No." Respondent never mentioned the indictable offenses filed against Poje and the prosecutor was not aware of them.

Judge Lake called Poje's case when the prosecutor was out of the courtroom and respondent entered a guilty plea on behalf of his client. The court then asked:

THE COURT: How long are we in for?

MR. [SEELIG]: We don't know yet.

THE COURT: Oh. Are we in for quite a while? (Indiscernible words) - - make any ...


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