(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).
Argued December 2, 1996 -- Decided May 23, 1997
PER CURIAM
This is an attorney disciplinary case. A majority of the Disciplinary Review Board (DRB) concluded
that Chen Kornreich should receive a one-year suspension from the practice of law for her misconduct
stemming from charges brought against her for motor-vehicular offenses arising from an automobile accident
with another motorist. Kornreich was admitted to the New Jersey bar in l985.
On March 16, 1989, at approximately 5:37 p.m., Kornreich's Mazda was involved in a minor car
accident with Susan Yezzi in the parking lot of Marlboro Plaza, a shopping center in Marlboro. Kornreich
left the scene of the accident without getting out of her car or exchanging information with Yezzi. Before
Kornreich drove away, Yezzi was able to write down the Mazda's license number after having also had
ample opportunity to see the driver of the vehicle. She telephoned the police and reported the details of the
accident.
Thereafter, Officer Martin Smith of the Marlboro Township Police Department visited Kornreich's
home, having obtained the licence plate number from Yezzi. He was greeted by Angelique Franson,
Kornreich's live-in babysitter, who informed him that Kornreich was the primary driver of the Mazda.
Officer Smith then inspected the damage to the Mazda and concluded that it had been in the accident in
which Yezzi was involved.
Several days after his conversation with Franson, Officer Smith returned to Kornreich's home and
spoke with her. On questioning, Kornreich denied having been involved in an accident at the shopping
plaza. She indicated, however, that she had been in the parking lot and that a woman had chased her.
Thereafter, Smith again returned to Kornreich's home to investigate further. Kornreich again denied having
been involved in the accident. Her husband, who was also an attorney, was present and threatened to sue
Smith if continued the investigation. He instructed the officer to have no further contact with his wife.
Shortly thereafter, Officer Smith caused several summonses to issue, charging Kornreich with failing
to report an accident and leaving the scene of an accident. Prior to the municipal court hearing, Kornreich
engaged Charles Brodsky, the father of one of her friends, as her attorney. According to Brodsky, before the
hearing, Kornreich completely denied involvement in the accident, despite the fact that he had confronted
her with the similarity of damage between her car and Yezzi's car. Moreover, she claimed that she did not
have use of the Mazda until the evening hours of the date of the accident and that, at the time of the alleged
accident, she had been in a meeting with a private investigator. She later provided Brodsky with the
investigator's affidavit to that effect. This information later proved to be false.
Finally, Kornreich advised Brodsky that, on the date and the time of the accident, Franson had
borrowed the Mazda to go to the bank located in the Marlboro Plaza. Kornreich also provided Brodsky with
a photo of Franson to demonstrate the similarity in appearance between the two women and with a copy of
her auto-insurance policy, which listed Franson as an insured driver of the Mazda. Brodsky did not speak
with Franson because, by that point, she had left the State and was living in Oregon.
The first municipal court date occurred on July 24, l989. At that time, the judge met with Brodsky, Brodsky's daughter (also an attorney), and the municipal prosecutor in chambers. Kornreich, though in court, was not present during that meeting. During the meeting, Brodsky informed the judge and the prosecutor that he would present evidence indicating that Franson, and not Kornreich, was the driver of the Mazda. He made that representation to the court on the basis of evidence Kornreich had provided. The
court then indicated that it would dismiss the charges against Kornreich. Smith was informed of the
proposed disposition and later issued summonses against Franson for the same charges with which he had
charged Kornreich. Similarly, the municipal prosecutor informed Yezzi that she could go home, but did not
inform her that the charges against Kornreich would be dismissed.
After the conference, Brodsky repeated in open court the allegations that Franson had been the
driver of the car. Kornreich was in the courtroom during Brodsky's representations. Although she later
denied hearing those representations because of poor acoustics, Brodsky indicated that he had encountered
no difficulty in hearing when he was seated next to Kornreich in the courtroom.
On September 14, 1989, a hearing was held on the charges against Franson. Despite the fact that
Kornreich had earlier advised Franson that she need not appear at that hearing, Franson had flown in from
Oregon to answer the charges. She testified, denying any involvement in the accident and further indicating
that Kornreich had admitted to her that she had been involved in an accident with a woman who was upset
because she left the scene without getting out of the car. She further testified that Kornreich had attempted
to dissuade her from appearing in court on the charges. As a result of Franson's testimony, the court
ordered Kornreich to appear. When Kornreich entered the courtroom later that afternoon, Yezzi
immediately recognized her, and not Franson, as the driver of the Mazda and so informed the prosecutor.
The judge then dismissed the charges against Franson.
After the September hearing, the judge referred the matter to the Monmouth County Prosecutor's
Office and the Office of Attorney Ethics (OAE). The Prosecutor's Office filed no charges against Brodsky.
However, Kornreich was charged with various offenses, including providing false information to a police
officer with the purpose of implication another; purposely obstructing the administration of law; and
purposely or knowingly obstructing the exercise of jurisdiction over her person by a court. Thereafter,
Kornreich and the Prosecutor's Office entered into a plea agreement under which she would be allowed to
enter the Pretrial Intervention Program (PTI). She maintains that she did so to avoid adverse publicity. On
successful completion of the program, the charges against her were dismissed.
Thereafter, the OAE filed a formal complaint charging Kornreich with various ethics violations
stemming from her conduct throughout the matter. Kornreich continued to deny her involvement in the
accident throughout the OAE's investigation and throughout District Ethics Committee (DEC) hearings.
She further maintained that she had never informed Brodsky that Franson was the driver of the car on the
date in question and that she had merely suggested that she was the only person who could have done so
under the circumstances. She insisted that her statements to Brodsky and the evidence with which she had
provided him were intended merely to cast a reasonable doubt on her guilt. She maintained that Brodsky
had made misrepresentations to the court without her knowledge and that he done so out of overzealousness
and a desire to impress his daughter.
At the conclusion of the hearing on the formal ethics complaint, the DEC found that Kornreich had
violated RPC 3.3(a)(4), by offering evidence to mislead the municipal court; RPC 3.4(f), by attempting to
dissuade Franson from attending court; RPC 8.4(c), by engaging in dishonesty, fraud, deceit, or
misrepresentation; and RPC 8.4(d), by engaging in conduct prejudicial to the administration of justice. The
DEC recommended that Kornreich receive a six-month suspension for her violations.
After conducting a de novo review of the record, a majority of the DRB made the same factual
findings and reached the same legal conclusions as the DEC. The DRB rejected Kornreich's version of
events, referring to her as “unworthy of belief,” among other things. It determined that she should be
suspended for one year for her ethics violations. In reaching that conclusion, the DRB placed great
significance on Kornreich's youth and inexperience at the time of her infractions.
After denying Kornreich's petition for review, the Supreme Court issued an Order to Show Cause
why Kornreich should not be disbarred or otherwise disciplined.
HELD: Kornreich's multiple ethics infractions, which included undermining the integrity of the
administration of justice, warrants her suspension from the practice of law in New Jersey for a period of
three years.
1. Kornreich violated RPC 3.3(a)(1) and (4), by offering, through her attorney, false statements and
evidence to mislead the municipal court. (pp. 15-20)
2. Kornreich violated RPC 3.4(f), by her misrepresentations implicating Franson as the driver responsible
for the accident. (pp.20-22)
3. Kornreich violated RPC 8.4(c), by engaging in a continuing course of dishonesty, deceit, and
misrepresentation. (pp. 23-24)
4. Kornreich violated RPC 8.4(b), by engaging in the commission of crimes that reflect adversely on a
lawyer's honesty and fitness. (pp.24-25)
5. Kornreich violated RPC 8.4(d), by engaging in conduct prejudicial to the administration of justice. (p. 25)
6. Disbarment is normally the appropriate discipline for attorney misconduct that undermines the integrity
of the administration of justice, even if the attorney is not acting in his or her capacity as an attorney. (pp.
25-29)
7. The gravity of an attorney's offense cannot be measured solely by the monetary nature of the harm to
the victims. (p. 30)
8. Although Kornreich never directly made a misrepresentation to the court and although she had the right
as a criminal defendant to remain silent, she had no right to falsely accuse another individual and to feed her
attorney false information for the purpose of misleading the municipal court. (p. 31)
9. Although youth and inexperience have been viewed as mitigating factors even as related to serious ethics
violations, certain ethics transgressions import a full measure of blameworthiness without regard to maturity
and experience. (pp. 31-32)
10. Kornreich should not be excused in any sense because she was caught in a “web of lies.” (pp. 32-33)
11. Although Kornreich's lack of sound judgment, clear thinking, and independence cannot in any way
diminish her professional responsibility or excuse her misconduct, because of her youth and inexperience, the
influence of her more experienced husband may have clouded her judgment and weakened her resolve to act
responsibly. (pp.33-34)
JUSTICE COLEMAN filed a separate opinion concurring in part and dissenting in part in which
CHIEF JUSTICE PORITZ joins. Although Justice Coleman agreed with the Court's findings, he believed
that Kornreich's conduct was so egregious and so inimical to the integrity of the judicial system that any
sanction short of disbarment would fail to protect the public.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in the Court's
opinion. JUSTICE COLEMAN filed a separate opinion concurring in part and dissenting in part in which
CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
D-
16 September Term 1996
IN THE MATTER OF
CHEN KORNREICH,
An Attorney at Law.
Argued December 2, 1996 -- Decided May 23, 1997
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Walton W. Kingsbery, III, Deputy Ethics
Counsel, argued the cause on behalf of the
Office of Attorney Ethics.
Brian J. Neary argued the cause for
respondent (Mr. Neary, attorney; Mr. Neary
and Yung-Mi Lee, on the brief).
PER CURIAM
This is an attorney-disciplinary case. Respondent Chen
Kornreich was charged with motor-vehicular offenses arising from
a car accident with another motorist. Thereafter, respondent
misled the municipal court, as well as her own attorney, into
believing that her full-time babysitter had been the driver of
the car at the time of the accident. As a result of those
misrepresentations, the charges against respondent were dismissed
and respondent's employee was charged with the motor-vehicle
offenses. At that point, respondent unsuccessfully attempted to
arrange for her employee not to appear at trial to defend against
those charges. When respondent's scheme came to light, the
charges against the employee were dismissed.
The matter was referred to the county prosecutor, who
charged respondent with criminal offenses based on her conduct.
The criminal charges eventually were dismissed after respondent
completed the pretrial-intervention program.
The Office of Attorney Ethics also investigated the matter
and initiated disciplinary proceedings with the filing of a
formal ethics complaint against respondent. She was charged with
violations of RPC 3.3(a)(1) (knowingly making a false statement
of material fact to a tribunal); RPC 3.3(a)(4) (knowingly
offering false evidence); RPC 3.3(a)(5) (failing to disclose to a
tribunal a material fact with knowledge that the tribunal may
tend to be misled by such failure); RPC 3.4(b) (falsifying
evidence, counseling, or assisting a witness to testify falsely,
or offering an inducement to a witness that is prohibited by
law); RPC 3.4(f) (requesting a person other than a client to
refrain from voluntarily giving relevant information to another
party); RPC 8.4(b) (committing a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness, or fitness as
a lawyer in other respects); RPC 8.4(c) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation); and
RPC 8.4(d) (engaging in conduct prejudicial to the administration
of justice).
The District Ethics Committee found respondent guilty of
ethics violations and recommended imposition of a six-month
suspension. The Disciplinary Review Board also determined that
respondent was guilty of ethics violations, but it recommended a
suspension of one year.
Following respondent's petition to review the DRB's
determination, this Court ordered respondent to show cause why
she should not be disbarred or otherwise suspended from practice.
We recite in detail the facts that we have found by clear and convincing evidence based upon our independent review of the record. That detail is provided to dissipate any possible doubt concerning the factual basis for the Court's ultimate determination that respondent is guilty of serious ethics violations and that severe discipline is warranted.
On March 16, 1989, at approximately 5:37 p.m., respondent's leased car (a 1989 maroon Mazda) was involved in a car accident with Susan Yezzi, who was driving a 1988 Chrysler New Yorker. The accident, which involved minor dents and scrapes, occurred in the parking lot of Marlboro Plaza, a shopping center in Marlboro. At the time, respondent, who had been admitted to the New Jersey and New York bars in 1985 when she was twenty-three years of age,
was twenty-six years old and a sole practitioner in Manalapan,
Monmouth County.
According to Yezzi, after the accident, she exited her car
and walked toward respondent's car, encouraging respondent to get
out of her car to exchange information. Respondent then left the
scene of the accident without getting out of her car or
exchanging information with Yezzi. Before respondent drove away,
Yezzi was able to write down the Mazda's license number and to
see respondent clearly for about two minutes.
After respondent drove away, Yezzi completed her errands at
Marlboro Plaza and went home. Once at home, she called the
police and provided details of her version of the accident.
Officer Martin Smith of the Marlboro Township Police Department
was assigned to the case and wrote the accident report that same
day. Yezzi provided him with the license plate number of the
other car, and, after some investigation, he obtained the
identity of the car's owner, namely, respondent.
After discovering respondent's identity and address, Smith
proceeded to her house, which was in the same development as
Yezzi's. He was greeted by Angelique Franson, respondent's live-in babysitter, who informed him that respondent and her husband
were on vacation. He asked her who normally drove the Mazda, and
she answered that respondent was the primary driver. Smith then
inspected the car, took some pictures, and compared the damage to
that done to Yezzi's vehicle. His inspection revealed almost
identical damage to the two cars, thus leaving little doubt that
they had been in the same accident.
Several days after his conversation with Franson and his
inspection of the Mazda, Smith returned to respondent's home and
spoke with her. He asked her if she had been involved in an
accident on March 16, to which she answered that she had not
been. He then asked her if she had been in Marlboro Plaza on
that date and, if she had been, if anything had happened. She
responded that she had been in the parking lot and that a woman
had chased her. (Smith's recounting of this statement by
respondent was essentially identical in both his police report
and his in-court testimony.) Smith returned to respondent's home
on April 11, 1989 to investigate further. Respondent again
denied having been involved in the accident. Her husband,
Anderson D. Harkov, who was also an attorney, was present, and
he, with respondent's backing, threatened to sue Smith if he
continued with the investigation. Harkov also stated that he was
respondent's attorney and that Smith was therefore not to speak
with her.
Shortly thereafter, Smith caused summonses to issue,
charging respondent with failing to report an accident, in
violation of N.J.S.A. 39:4-130, and leaving the scene of an
accident, in violation of N.J.S.A. 39:4-129. The first hearing
on the matter was scheduled for July 24, 1989 in municipal court.
Before the hearing, respondent engaged Charles Brodsky, the
father of one of her friends, as her attorney. Respondent and
Brodsky have very different accounts of what occurred during
their meeting prior to the July 24 court date. Brodsky claims
that respondent completely denied involvement in the accident,
although she told him that she had had a dispute with a woman
about a parking spot, resulting in the woman chasing her with a
pocketbook. Brodsky then examined the two cars and concluded, as
had Smith, that the two had been involved in the same accident.
When Brodsky confronted respondent with the results of his
investigation, she continued to deny involvement. However, she
provided Brodsky with an alibi, namely, that she had not driven
the Mazda on that day, that she had been driven around by others,
and that she had been in a meeting with a private investigator
(regarding a case) between 5:15 p.m. and 5:45 p.m. She later
provided Brodsky with an affidavit to that effect from the
investigator. She also told Brodsky that at about 6:00 p.m., she
and her husband had picked up their Toyota from an auto-repair
shop. She stated that the incident at Marlboro Plaza regarding
the parking space had occurred at 8:00 p.m.
According to Brodsky, respondent then implicated Franson.
She stated that Franson had a bank account at the Columbia
Savings Bank, which is located at Marlboro Plaza, that the bank
had been open until 7:00 p.m. on the day of the accident, and
that Franson had been paid on the day of the accident, thus
requiring her to deposit the money in her account. She stated
that she knew that Franson had made the deposit because Franson
had asked to borrow the Mazda to do so. Later, however, after
the second municipal-court hearing on September 14, 1989, Brodsky
obtained a document from Franson's bank showing that no
transactions had been posted to her account on either the day of
the accident, March 16, 1989, or the following day. Respondent
also provided Brodsky with a photo of Franson (to demonstrate
that respondent and Franson had similar appearances) and a copy
of the family's auto-insurance policy, which listed Franson as an
insured driver of the car. Brodsky never spoke with Franson
because Franson had left the State and was living in Oregon.
On July 24, Smith, respondent, respondent's husband,
Brodsky, and Yezzi were all in court. Before the hearing on the
matter, the judge met with Brodsky, Brodsky's daughter (who is
also an attorney), and the municipal prosecutor in chambers.
Respondent was not present. Brodsky informed the court and Smith
that he would present evidence that Franson, not respondent, had
been the driver of the car. He later testified that he had made
this representation to the court based on the evidence that
respondent provided him, namely, the affidavit from the private
investigator and the information about Franson's bank account and
her use of the car to make a deposit. The court then indicated
that it would dismiss the charges against respondent. Smith was
called into chambers and informed of the disposition and
Franson's implication in the offenses; he later issued summonses
against Franson, charging her with the same violations with which
respondent initially had been charged.
After the conference in chambers, the municipal prosecutor
informed Yezzi, who had not seen respondent in court, that she
could go home, although he did not inform her at that time that
the case against respondent would be dismissed. At the same
time, Brodsky approached respondent and her husband and informed
them of what had occurred. He also asked them if they would be
willing to testify against Franson, to which they responded that
they would.
Soon thereafter, the judge went on the bench. In the course
of the proceeding, Brodsky repeated in open court the allegations
that Franson had been the driver of the car. Respondent was in
court during Brodsky's representations. The court then formally
dismissed the case against respondent. Sometime after the July
24 hearing, respondent called Brodsky and asked him what would
happen if Franson did not show up for her court date, to which he
responded that she would lose her driving privileges.
On September 14, 1989 at 9:00 a.m., a hearing was held
regarding the charges against Franson, who had been issued a
summons arising out of the accident with Yezzi. Franson, who had
flown in from Oregon, Smith, and Yezzi were present at the
hearing. Although she had been subpoenaed, respondent was not in
court when the hearing began. She did, however, appear shortly
thereafter. At the hearing, Yezzi observed Franson, whom she
never had seen previously. She was adamant that Franson had not
driven the Mazda. Franson also denied any involvement, claiming
that she had been at home with respondent's children at the time
of the accident; she further testified that, on the day of the
accident, respondent had arrived home and told her that she had
been involved in an accident and had left the scene with the
other driver yelling at her for not getting out of her car.
Finally, she testified that respondent had encouraged her not to
return to New Jersey for the hearing.
The court then ordered respondent to attend the hearing.
When respondent arrived at about noon, she went over to speak
with Franson. At that point, Yezzi spotted respondent and
immediately informed Smith that respondent had been the driver of
the car. Yezzi again identified respondent in her testimony to
the court. As a result, the court dismissed the charges against
Franson.
Brodsky claims that the court later called him a "liar"
because of his representations during the July 24 hearing. No
ethics charges were ever filed against him, although the
prosecutor's office investigated his conduct (presumably no
charges were filed).
After the September 14 hearing, the municipal court judge
referred the matter to the Monmouth County Prosecutor's Office
and the Office of Attorney Ethics ("OAE"). The Prosecutor's
Office charged respondent with providing false information to a
police officer with the purpose of implicating another, in
violation of N.J.S.A. 2C:28-4(a); purposely obstructing the
administration of law, in violation of N.J.S.A. 2C:29-1; and
purposely or knowingly obstructing the exercise of jurisdiction
over her person by a court, in violation of N.J.S.A. 2C:29-9.
Respondent and the Prosecutor's Office entered into a plea
agreement under which respondent would enter the pretrial
intervention program ("PTI"), thus allowing her not to admit
guilt; she asserts that she entered the program to avoid the
adverse publicity of an indictment. She completed PTI
successfully on December 21, 1990, and the charges against her
were dismissed.
In the course of the ethics investigations, respondent
completely denied involvement in the accident. She maintained
her alibi of meeting with the private investigator between 5:15
p.m and 5:45 p.m., after which she had gone with her husband to
pick up their Toyota from the shop at about 6:00 p.m., had gone
to her bank, and finally had arrived at Marlboro Plaza to go
shopping at 8:00 p.m. She produced a receipt showing that she
had made a purchase at Caldor (located at Marlboro Plaza) at 7:54
p.m. Respondent also produced the receipt from the auto shop;
the receipt, however, showed that she and her husband had picked
up the car at 5:05 p.m., not 6:00 p.m., thus providing ample
opportunity for respondent to have arrived at the scene of the
accident by 5:37 p.m.
Respondent denied having told Smith that, on the day of the
accident, she had been chased in the Marlboro Plaza parking lot
by a woman with a pocketbook. Instead, she claimed that she had
simply seen a woman running with a pocketbook, that she may have
seen the woman on a day other than the day of the accident, that
the woman was not Yezzi, and that she never had told Smith that
the woman had chased her car. She further alleged that, when
Smith had come to her house to question her, he immediately had
confronted her with the claim that he had three witnesses who
could place her at the scene of the accident.
Regarding her accusation against Franson during the July 24
hearing, respondent denied ever having told Brodsky that Franson
actually had been driving the car at that time. Instead, she
claimed that she had informed him that Franson had borrowed the
car at some time during the day of the accident and that, by
process of elimination, she may have been the only person who
could have been driving the car at the time of the accident; she
stated that she had provided him with this information for the
sole purpose of casting a reasonable doubt on her own
participation in the accident.
According to respondent, Brodsky, without informing her and
outside of her presence (she was not in the judge's chambers),
fabricated the story about Franson and then, without mentioning
the accusations that had been made against Franson, simply
informed respondent that his presentation of the alibi defense
had convinced the prosecutor that respondent had not been driving
the car. Regarding Brodsky's repetition of the allegation in
open court (in respondent's presence), she asserted that she had
been unable to hear what was occurring because she had been
seated about two-thirds of the way back in the courtroom.
However, Brodsky contradicted that assertion by testifying that,
when he had been seated next to respondent, he could hear exactly
what was occurring in the front of the courtroom. Respondent
further claimed that she had not found out about Brodsky's
representation to the municipal court concerning Franson until
she had ordered the transcripts from the July 24 hearing, which
she had not done until after the September 14 hearing. She
testified that when she had realized what Brodsky had done, she
had concluded that he had done so because of overzealousness and
a desire to impress his daughter.
Respondent claimed that, in August 1989, Franson had called
her from Oregon and informed her that she had received two
summonses from the municipal court regarding the accident.
Franson asked her to pay for her airfare and legal fees, to which
respondent answered that she would call her back. According to
respondent, she then spoke with Brodsky, who informed her that
Franson would not be extradited because she had not been served
properly. Respondent claimed that she then had called Franson
and told her that she would not pay for her airfare and legal
fees. She also claimed that she had told Franson that Franson
would not be extradited and had done so not for the purpose of
obstructing justice, but rather to allay Franson's fear of being
arrested and jailed. However, Franson had testified at the
September 14 hearing that respondent explicitly told her not to
worry about coming back to New Jersey because no one would "come
after" her and because it was "no big deal."
Respondent testified that, at the September 14 hearing,
Yezzi had identified her only after the court called respondent
up to the bench, thus informing Yezzi who she was. Respondent
placed significance on that sequence of events because she
imputed to Yezzi a motive of desiring to sue respondent instead
of Franson in order to obtain a larger monetary settlement. The
record of the proceeding, however, demonstrates that the court
did not summon respondent to the bench until after Yezzi
independently had identified her to the prosecutor and the
prosecutor had relayed that information to the court.
Harkov, respondent's husband (a public defender at the time
of the accident and in private practice with respondent today),
largely corroborated respondent's version of events, especially
regarding the timing of the day of the accident, respondent's
alibi, Franson's use of the Mazda on that day, their dealings
with Brodsky, and their inability to hear what Brodsky was saying
to the judge in open court. However, Harkov testified that he
and possibly respondent had spoken with Brodsky afterward, who
had informed them that Franson would be charged as a result of
the July 24 hearing. Harkov felt that this was "odd," even
though he claimed to believe that Franson had been involved in
the accident.
The OAE investigated and presented the case to the District IX Ethics Committee ("DEC"), recommending a six-month suspension.
The DEC held hearings on the matter, during which respondent,
Harkov, Brodsky, Yezzi, Judge Newman (the municipal court judge),
and Smith testified. Franson could not be located, so the
transcript of her municipal court testimony, which respondent had
had an opportunity to cross examine, was entered into evidence.
The DEC credited the testimony of Brodsky, Smith, Yezzi, and
Franson; it refused to credit the testimony of respondent and
Harkov. Its factual determinations correspond with the foregoing
factual recitation and were based on clear and convincing
evidence. It made these specific important factual findings:
that respondent and Harkov had picked up the Toyota from the shop
at 5:05 p.m. (not at 6:00 p.m.); that respondent, not Franson,
had driven the Mazda in the accident with Yezzi; that respondent
had made representations and presented documentation for the
purpose of misleading the prosecutor and the court about the
identity of the driver; that respondent had known that Brodsky,
the prosecutor, and the court, were being misled; that respondent
had known, on July 24, that false charges were being filed
against Franson; that respondent improperly had attempted to
persuade Franson not to appear in court for the September 14
hearing; that respondent had shown no remorse for falsely
accusing Franson; that respondent consistently had refused to
admit that she was the driver of the car; and that respondent had
failed to show candor throughout the disciplinary process.
After making those findings, the DEC concluded that
respondent had violated RPC 3.3(a)(4), by offering evidence to
mislead the municipal court; RPC 3.4(f), by attempting to
dissuade Franson from attending court; RPC 8.4(c), by engaging in
dishonesty, fraud, deceit, or misrepresentation; and RPC 8.4(d),
by engaging in conduct prejudicial to the administration of
justice. The DEC adopted the OAE's recommendation of a six-month
suspension.
The Disciplinary Review Board ("DRB"), after conducting a de
novo review of the record, made the same factual findings and
reached the same legal conclusions as the DEC by a five-to-two
majority.See footnote 1 The DRB majority further stressed the consistency of
the testimony of Yezzi, Smith, Brodsky, and Franson; Franson's
purchase of a ticket to New Jersey to defend herself despite the
ease with which she could have avoided sanction by remaining in
Oregon; the inconsistencies between respondent's testimony and
her prior statements; and the physical evidence (especially the
credit-card receipt from the repair shop). In rejecting
respondent's version of events, the DRB repeatedly referred to
her as "disingenuous," "unworthy of belief," and "not credible."
It determined that she was guilty of ethics violations and
recommended a suspension of one year.
We conclude that respondent violated RPC 3.3(a)(1) and (4), by offering false statements and evidence to mislead the
municipal court; RPC 3.4(f), by attempting to dissuade Franson
from attending court; RPC 8.4(b) by committing crimes by falsely
implicating Franson, by attempting to interfere with the hearing
on the charges against her, and by obstructing the enforcement of
the criminal laws, crimes that reflect adversely on an attorney's
honesty and fitness; RPC 8.4(c), by engaging in a continuing
course of conduct based on dishonesty, fraud, deceit, or
misrepresentation; and RPC 8.4(d), by engaging in conduct
prejudicial to the administration of justice.
We deal first with the ethics violations established by
clear and convincing evidence that respondent knowingly made
false statements of material fact and knowingly offered false
evidence that misled the court, in violation of RPC 3.3(a)(1) and
RPC 3.3(a)(4).
The fact that it was respondent, and not Franson, who was
the driver of the car involved in the accident constitutes the
basis for the determination that respondent knowingly made false
statements of fact and offered false evidence that were intended
to mislead a tribunal. The DRB fully explained its reasons for
reaching that critical factual determination based on clear and
convincing evidence. It related the details of Yezzi's account
of the critical events that underscore the accuracy of her
identification of respondent as the driver, viz:
Mrs. Yezzi testified (1) that March 16, 1989
was a bright, sunny day and that, at the time
of the accident, 5:37 P.M., she could see
very clearly; (2) that she stared at the
driver for two full minutes, waiting for her
to exit the car to exchange insurance
information; (3) that she was not in the
courtroom on the night of respondent's trial,
July 24, 1989; (4) that, on July 24, 1989,
the prosecutor had taken her outside of the
building and had told her that she could go
home; (5) that, therefore, she was not in the
courtroom at the time that the judge
dismissed the case against respondent on the
basis of mistaken identity; (6) that she was
not aware until later that summonses would be
issued against Ms. Franson as the driver of
the car; (7) that she had never seen
Ms. Franson before September 14, 1989, the
day of Ms. Franson's trial; and (8) that,
before the proceedings of September 14, 1989
started, when respondent walked into the
courtroom and began to speak with Ms.
Franson, Ms. Yezzi called Officer Smith over
to her side and told him that respondent was
the driver of the car.
The DRB stressed that Yezzi's testimony flatly contradicted
respondent's version of the basis for Yezzi's identification of
respondent as the driver:
Contrary to respondent's contention, hence,
Mrs. Yezzi's identification of respondent as
the driver of the car did not take place
after the judge called the case and after the
judge instructed respondent to come up. Mrs.
Yezzi testified that she recognized
respondent as soon as she walked into the
courtroom and went over to speak to Ms.
Franson and that, in fact, she, Mrs. Yezzi,
pointed respondent out to Officer Smith. In
addition, the transcript of the September 14,
1989 proceeding makes it clear that, only
after the prosecutor informed the judge that
Officer Smith and Mrs. Yezzi had told him
that the driver of the car was the witness on
the list and not Ms. Franson, did the judge
ask who that witness might be. Following the
prosecutor's identification of the witness as
respondent the judge asked respondent to come
up.
The DRB further emphasized that "[t]he testimonies of Mrs. Yezzi, Officer Smith and Ms. Franson were consistent with each other and
with other competent evidence." The DRB then carefully analyzed
the testimony of the police officer, as well as that of Brodsky.
It found respondent's explanation that she had not been involved
in the car accident but had been involved in another incident
later that evening at the mall to be "confusing" and that "the
meaning of her statement to Officer Smith leads to no other
conclusion but that it was contrived."
Further, the DRB found that Franson was a credible witness,
whose testimony confirmed that she had not been the driver of the
car and that she had been falsely charged:
There is also Ms. Franson's testimony at the
September 14, 1989 proceeding that, when
respondent arrived home on the evening of
March 16, 1989, at approximately 6:00,
respondent had told Ms. Franson that she had
been involved in an accident and that she had
been frightened because a woman had yelled at
her for failure to exchange information.
Very significant, too, was that Ms. Franson,
who seemingly could ill afford to make the
trip back to New Jersey to defend herself and
to retain a lawyer, did exactly that,
notwithstanding respondent's assurances to
her that the only consequence from her
absence would be the suspension of her
driving privileges in New Jersey. No other
conclusion can be drawn from Ms. Franson's
return to New Jersey but that, having been
falsely accused of criminal offenses, she was
bent on clearing her name at all costs. Had
she been guilty, she probably would not have
returned to New Jersey to attend her trial.
The evidence also clearly and convincingly establishes that
respondent fabricated her alibi. The DRB concentrated on that
evidence:
More significantly, the credit card receipt
unambiguously shows that respondent and her
husband picked up the Toyota at about 5:00
P.M. Neither respondent nor her husband
offered any explanation tending to show that
the 5:05 P.M. time on the credit card receipt
was either not accurate or not the actual
time when the car was picked up. In light of
this overwhelming piece of evidence,
respondent could not have met with the
investigator until 5:45 P.M., could not have
been picked up by her husband at
approximately 6:00 P.M., could not have
picked up the Toyota at 6:10 P.M., could not
have arrived at Marlboro Plaza at 6:30 P.M.
and, in fact, was at the Plaza at the time of
the accident because she testified that,
right after she switched cars with her
husband at the Toyota dealership, she headed
straight to the mall, a distance of fifteen
minutes from the Toyota dealer.
The DRB further explained why it disbelieved respondent and
determined that her alibi was false:
Respondent argued that it would be
preposterous for her to be involved in an
accident, to go home immediately thereafter,
at about 6:00 P.M., to confide to her nanny
that she had had an accident that had
frightened her and to turn around back to the
mall to pick up the passports at the bank at
6:30 P.M. Considering, however, that
respondent was not injured, that she
presumably did not perceive Mrs. Yezzi to
have been hurt, that the damage to both cars
had been insignificant, and that she had
worked all day and, therefore, had little
spare time to get ready for her upcoming trip
to Israel, it is plausible that she would
have returned to the mall after the minor
accident.
The DRB opinion pays scant attention to respondent's having given Brodsky a false affidavit from a private investigator, Robert Kantor, that purported to confirm respondent's alibi. That conduct is particularly disturbing, and, also, directly supports the conclusion that respondent gave false statements and
evidence. Brodsky had asked respondent to provide him with an
affidavit from Kantor confirming that respondent and Kantor had
been in a meeting at respondent's office when the accident took
place. That affidavit encouraged Brodsky to believe that Franson
had been operating the vehicle when the accident occurred.
Respondent herself testified that Brodsky had told her that
Kantor's affidavit, as well as the store receipt, convinced the
prosecutor that she had not been the driver and that the charges
would be dismissed. It appears that Kantor was present the day
that the municipal court dismissed the charges.
In sum, respondent lied to her attorney about her
involvement in the accident and by blaming her employee for the
accident and concocting an alibi about her activities on the date
and at the time of the accident. Those representations by
respondent were the basis for her attorney's false statements and
proffering of false evidence to the municipal court. The false
statements and evidence were clearly and knowingly intended by
respondent to mislead the municipal court. Her representations,
in fact, did mislead the court -- they constituted the basis both
for the dismissal of the charges against respondent and the
issuance of charges against her employee.
We conclude that respondent violated RPC 3.3(a)(1) and (4).
In addition to the clear and convincing evidence that
demonstrates that respondent misrepresented her own involvement
in the accident, respondent's misrepresentations implicated
Franson as the driver responsible for the accident, in violation
of RPC 3.4(f).
The dismissal of the charges against respondent and the
filing of charges against Franson were inextricably tied
together. The DRB stated:
Respondent also knowingly allowed the case
against her to be dismissed. Her testimony
that she was not aware, prior to the
dismissal of the charges against her on July
24, 1989, that the central reason why the
charges were being dismissed was that the
prosecutor believed that Ms. Franson, not
she, had been driving the car is unworthy of
belief. Mr. Brodsky testified that, after
his conference with the prosecutor and
Officer Smith, he explained to respondent and
her husband why the case was going to be
dismissed and that summonses would be issued
against Ms. Franson. Mr. Brodsky added that
he had asked respondent and her husband if
they would be willing to testify against Ms.
Franson and that they had agreed. Moreover,
respondent's husband admitted that they knew,
after the dismissal of respondent's
complaint, that charges would be filed
against Ms. Franson. Mr. Harkov testified
that he thought it odd that they were signing
tickets against Ms. Franson and that he did
not expect that she would be charged.
The DRB painstakingly analyzed the evidence of respondent's
role in and motives for implicating Franson:
Respondent knew that she was the driver of
the car and consciously lied that she was
not. Respondent purposely pointed the finger
at an innocent party, who by then had left
the state, had moved to a place some 3,000
miles away and in all likelihood would not or
could not return to New Jersey to exonerate
herself. That respondent might not have told
Mr. Brodsky that she, respondent, had
personal knowledge of Ms. Franson's use of
the car at the time of the accident but that,
instead, that fact had been relayed to her by
her husband, does not save her from a finding
that she purposely implicated Ms. Franson.
Respondent knew that she was the driver of
the car; she knew that her husband was
mistaken that Ms. Franson had used the car at
that time; and she knew that Ms. Franson was
innocent. Yet, she told Mr. Brodsky about
her husband's statement, gave Mr. Brodsky a
copy of the insurance policy showing that
Ms. Franson was insured under the policy and
gave Mr. Brodsky a picture of Ms. Franson to
show a possible resemblance between them.
Our own independent analysis and assessment of this evidence
lead us to the conclusions that respondent herself created the
unmistakable impression with Brodsky that Franson in fact had
been the driver of the car and that her husband's representation
to Brodsky that Franson had been the driver of the car was
neither "mistaken" nor independent of respondent's
representation.
The DRB further explained why it disbelieved respondent's
claim that she had been unaware of the reasons why the charges
against her were dismissed and the charges against Franson were
made:
Respondent's further testimony that she
had been unable to hear what Mr. Brodsky had
placed on the record about the dismissal and
about the charges against Ms. Franson is not
credible. Mr. Brodsky testified that he was
sitting with respondent and with her husband
when her case was called by the judge and
that he had no trouble hearing. Moreover,
Judge Newman testified that, although the
courtroom acoustics in 1989 were not as good
as they are today, the amplification system
at the time consisted of six or seven
speakers placed along the walls on both sides
of the room from front to rear.
We conclude that respondent violated RPC 3.4(f).
Respondent was also guilty of violating RPC 8.4(c) by
engaging in a continuing course of dishonesty, deceit, and
misrepresentation. That dishonest course of conduct also
supports her guilt of violating RPC 3.4(f). That charge is based
essentially on the evidence that established that respondent was
the driver of the car, that she implicated Franson as the driver,
and that she then perpetuated versions of the facts that were
false. Thus, in analyzing and weighing all of the testimony and
evidence, the DRB concluded not only that respondent had been the
driver of the car, but that she repeatedly and consistently had
lied about it:
The proofs, thus, clearly and convincingly
establish that respondent was the driver of
the Mazda on the date in question. That
obviously means that she was untruthful to
Mr. Brodsky, to Officer Smith, to the
municipal court on July 24, 1989, to the
prosecutor's office and to the DEC.See footnote 2
As part of that deception, the DRB found respondent's account of
her conversation with Franson about Franson's defense against the
charges to be untruthful:
In light of respondent's overall deceitful
conduct, the conclusion that she also
attempted to dissuade Ms. Franson to come to
New Jersey to defend herself is inevitable.
The only logical inference is that
respondent's so-called assurances to Ms.
Franson that no grave consequences would
befall her if she did not appear in court
were prompted not by any altruistic motive on
her part to allay Ms. Franson's fears but,
instead, by her intent to let an innocent
party take the fall for her criminal
offenses.
Respondent's series of lies continued long after she falsely
implicated her employee. She was clearly guilty of violating RPC
8.4(c). Moreover, her dishonesty and deceit extended to her
attempt to dissuade Franson from appearing in court to defend the
charges that had been brought against her, with the purpose of
avoiding her own exposure as the driver of the car.
Respondent's misconduct violated RPC 8.4(b) because she
engaged in the commission of crimes that reflect adversely on a
lawyer's honesty and fitness. As a result of the municipal court
judge's referral of the matter to the county prosecutor,
respondent was charged with giving false information to a law
enforcement officer with the purpose of implicating another, in
violation of N.J.S.A. 2C:28-4(a); obstructing the administration
of law, in violation of N.J.S.A. 2C:29-1; and criminal contempt,
in violation of N.J.S.A. 2C:29-9. We conclude that there was
clear and convincing evidence to support those criminal charges.
Respondent's implication of Franson in part was based on the
version of events that she related to Officer Smith. In
addition, respondent implicated her own attorney by first
suggesting that he had made statements to the prosecutor and the
court without her knowledge or consent. Later, respondent
engaged in further deception by suggesting a reason why her
lawyer had engaged in that unethical conduct: "he was just
trying to dismiss this and be a hero so that his daughter would
see what a good job he did for his daughter's friend." The DRB
concluded that respondent, not her lawyer, had committed the
ethical improprieties:
Finally, in a last attempt to rid herself
of charges of fabrication, deceit and
obstruction of justice, respondent attempted
to escape responsibility by blaming her
former attorney, Mr. Brodsky. Mr. Brodsky's
testimony at the DEC hearing, however, which
the DEC found credible, was consistent with
that of the other witnesses.
Indeed, her conduct exposed Brodsky to criminal jeopardy; because
of the municipal court's initial belief that he had lied. As
pointed out by the DRB, however, "the prosecutor's investigation
disclosed no wrongdoing on Mr. Brodsky's part."
We conclude that respondent violated RPC 8.4(b).
The evidence finally demonstrates that respondent violated
RPC 8.4(d) by engaging in conduct prejudicial to the
administration of justice. We agree with the DRB's conclusion
that respondent's conduct undermined the administration of
justice by "fabricat[ing] a defense," "pointing the finger at Ms.
Franson," "dissuad[ing] Ms. Franson," "let[ting] an innocent
party take the fall," and displaying "deceitful conduct" that
seriously misled the court and subverted the enforcement of the
criminal laws.
Disbarment is normally the appropriate discipline for attorney misconduct that undermines the integrity of the administration of justice. E.g., In re Giordano, 123 N.J. 362,
367 (1991); In re Stier,
108 N.J. 455, 457-58 (1987); In re
DiBiasi,
102 N.J. 152, 156 (1986). In In re Verdiramo,
96 N.J. 183 (1984), the Court stated that
[p]rofessional misconduct that takes deadly
aim at the public-at-large is as grave as the
misconduct that victimizes a lawyer's
individual clients. Because such a
transgression directly subverts and corrupts
the administration of justice, it must be
ranked among the most egregious of ethical
violations. . . . We believe that ethical
misconduct . . . involving the commission of
crimes that directly poison the well of
justice . . . is deserving of severe
sanctions and would ordinarily require
disbarment.
Attorney misconduct that undermines the administration of justice is no less serious because it occurs in the municipal courts. E.g., In re Edson, 108 N.J. 464 (1987); In re Yaccarino, 117 N.J 175, 201 (1989) (involving judicial discipline).
Moreover, disbarment may be warranted even if the attorney is not acting in his or her capacity as an attorney. See In re Rigolosi, 107 N.J. 192 (1987) (ordering disbarment for interfering with administration of justice through bribery, despite respondent's nonlawyer role). The DRB correctly discounted respondent's claim that she had been acting only in her capacity as a defendant legitimately trying to defend herself, viz:
The evidence is equally clear and convincing that respondent knowingly implicated an innocent party, Ms. Franson, in the matter. The Board rejected respondent's argument that her statements to Mr. Brodsky
were designed to raise a reasonable doubt as
to her own guilt.
Respondent's ethical misconduct in violation of RPC 8.4(b)
involved the commission of crimes that not only reflect adversely
on a lawyer's honesty and fitness but also directly poison the
well of justice. In fact, as a result of the municipal court's
referral to the county prosecutor, respondent was charged with
the crimes of giving false information to a law enforcement
officer with the purpose of implicating another, obstructing the
administration of law, and criminal contempt. Those crimes
directly involved conduct that subverted the justice system. We
note that respondent was permitted to enter the PTI program and
that after she completed the program, the charges against her
were dismissed. Nevertheless, we find by clear and convincing
evidence that respondent was in fact guilty of those charges.
See, e.g., In re Yaccarino, supra, 117 N.J. at 200 (finding that
evidence established criminal charges in judicial disciplinary
proceedings, even though respondent had not been indicted); In re
Edson, supra, 108 N.J. at 472 (finding basis for disbarment even
in absence of conviction); In re Rigolosi, supra, 107 N.J. at
206-07 (stating that, even though criminal charges had not
resulted in guilty verdict, guilt had been established by clear
and convincing evidence in disciplinary proceedings).
Respondent's misconduct involved giving false statements and
false evidence designed to mislead the municipal court in
violation of RPC 3.3(a)(1) and (4), which subverted the
administration of justice. Cf. In re La Rosee,
122 N.J. 298,
312-13 (stating that dishonesty in the practice of law undermines
the administration of justice and disbarring attorney for, among
other misconduct, encouraging former client to present false
testimony in a criminal prosecution). That conduct was
exacerbated because it placed innocent people in serious
jeopardy; her attempt to frame Franson for the accident and then
to blame her attorney for the accusations against Franson and the
fabrication of the alibi defense added to the seriousness of her
actions.
The tribunals below did not believe that disbarment or even
an extended suspension was warranted. We disagree with their
perception of the gravity of respondent's violations and their
reasons for imposing lesser discipline.
Respondent's offense is worse than that presented in In re
Lunn,
118 N.J. 163 (1990). In that case, we suspended an
attorney for three years for lying to a court by submitting a
false document in relation to a personal-injury suit that the
attorney was pursuing. There, however, soon after the action was
referred to a prosecutor for investigation, the attorney admitted
his complicity in writing the document and signing someone else's
name to it. Although the attorney had lied about the document
during a deposition, he had not falsely accused another person
and had not implicated an innocent party in criminal acts. The
attorney admitted his guilt to the ethics committee even before
he became involved. Respondent, however, has not taken that
step. Even at the DRB hearing, respondent "displayed a steadfast
refusal to admit her wrongdoing and to show any morsel of
contrition."
This case is more like In re Conway,
107 N.J. 168 (1987),
and In re Rigolosi, supra,
107 N.J. 192. In those cases, the
attorneys involved sought to obstruct justice by bribing a
policeman and tampering with a witness in order to obtain the
dismissal of criminal charges against a defendant. We found the
conduct in those cases so egregious that we ordered disbarment.
What made those cases so extraordinary was not the underlying
subject matter, charges arising out of an altercation between a
police officer and the defendant, but rather the perversion of
the justice system by the attorneys. We have precisely that set
of facts here. The accident and the flight from the scene of the
accident were minor infractions. Here, the gravity of the
offense, however, is based on respondent's attempt to avoid
prosecution by framing an innocent person for violations of law
and her subsequent attempt to eliminate any possibility that the
innocent person would contest her guilt and thereby implicate
respondent.
We now consider whether there are mitigating factors militating against severe discipline.
Respondent has submitted a substantial number of letters from friends, colleagues, and relatives praising her character and integrity. She also relies on her charity and pro-bono work,
which we have recognized as mitigating. E.g., In re Alcantara,
144 N.J. 257, 268 (1995). That evidence is relevant in several
respects, including whether the conduct was aberrational, whether
she can be rehabilitated, and whether failure to disbar her will
substantially harm the image of the legal profession.
Respondent also claims that her offense resulted from panic.
That factor is not particularly weighty because respondent
persisted in an unethical course of conduct, greatly undermining
her contention that panic can explain her actions. She also
claims that she reimbursed Yezzi and Franson and that no
permanent harm was suffered. However, the gravity of the offense
cannot be measured solely by the monetary nature of the harm to
the victims.
Respondent points to her lack of personal or financial gain.
She notes that because Franson was listed on the auto-insurance
policy, Franson's being charged with the accident would have
caused respondent's insurance rates to rise just as much as if
respondent were charged with the accident. Still, respondent
sought to gain a personal benefit by shifting the blame to
Franson in order to escape prosecution and to avoid embarrassment
and adverse publicity.
Respondent further alleges that this whole affair has caused
her a number of hardships, including negative publicity, high
legal fees, a criminal prosecution, use of the incident by her
courtroom adversaries, and emotional anxiety. She also notes
that she provides sixty-five percent of the family's income and
that she and her husband have two young children. Those facts
are relevant, but they are not entitled to much weight in that
they involve the foreseeable consequences of her own wrongdoing.
Respondent asserts that her case is one of first impression
in that she made no direct representations to the court and never
affirmed her attorney's representations. Specifically she points
to her status as a criminal defendant and her right to present a
defense casting a reasonable doubt on her guilt. That position
in part persuaded two members of the DRB to minimize the
existence of the ethics violations. Respondent does, of course,
acknowledge that as an attorney she had an ethical obligation to
correct the falsehood when it arose. Moreover, respondent's own
lies to Brodsky began the process of misrepresentations and the
perversion of justice. Although respondent never directly made a
misrepresentation to the court and although respondent had the
right to remain silent, she had no right falsely to accuse
another individual and to feed her attorney false information for
the purpose of misleading the municipal court.
Respondent stresses that she was young (twenty-six) at the
time of the incident and that although she had been admitted to
the bar for more than three years, she had only opened her law
practice five months earlier. She urges the Court to consider
those facts in mitigation.
We have viewed youth and inexperience as mitigating factors,
even as related to serious ethics violations. E.g., In re Farr,
115 N.J. 231, 236 (1989); In re Stier, supra, 108 N.J. at 459; In
re DiBiasi, supra, 102 N.J. at 155. Certain ethics transgressions, however, import a full measure of blameworthiness without regard to maturity and experience. In In re Edson, supra, 108 N.J. 464, the respondent's youth and brief experience in the practice of law did not factor into the Court's decision to order disbarment. The Court disbarred him without taking any particular notice of the fact that his first infraction had occurred before his thirtieth birthday and little more than four years after he had been admitted to the practice of law in New Jersey and that the second incident had occurred fourteen months later. Thus, youth and inexperience, as such, cannot exonerate respondent. Indeed, if respondent were seeking admission to the bar, it is possible, indeed likely, that she would be denied admission unconditionally based on her conduct, despite her youth and lack of professional experience. The applicants whom we previously