(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 March 15, 1994 -- Decided May 13, 1994
PER CURIAM
Samuel Asbell was Camden County Prosecutor from December 17, 1984 until January 5, 1990, the day
he resigned the position. From December 1989, Asbell, a Republican, was a holdover prosecutor, because
his term of office had expired. He was extremely concerned about his chances of reappointment by
Governor-elect Florio, a Democrat.
On January 1, 1990, using his own firearms, Asbell feigned an assassination attempt on his own life by
shooting at his county-owned car. Asbell reported the shooting to the police and an investigation
commenced. It was not until the third day of the investigation that the police were convinced that Asbell had
staged a hoax. When confronted, Asbell continued to mislead the police until he learned that a search
warrant of his home had been requested. Only then did Asbell admit that he had staged the assassination
attempt.
Immediately thereafter, Asbell went to Carrier Clinic for treatment. He was treated for nineteen days
and was diagnosed as suffering from an "adjustment disorder with mixed disturbance of emotions and
conduct," and "mixed personality disorder with histrionic and narcissistic features." On his release from
Carrier, Asbell voluntarily agreed not to practice law pending the determination of his mental fitness to
practice law. He continued to treat with a psychiatrist in Philadelphia. After approximately seventy
treatment sessions, the psychiatrist concluded that Asbell was mentally fit to practice law.
Asbell advised the Office of Attorney Ethics (OAE) that he intended to resume the practice of law.
The OAE objected and filed a motion for Asbell's temporary suspension. By order dated December 20,
1990, the Court denied the OAE's application and permitted Asbell to resume the practice of law under
proctorship, so long as he did not practice in the public sector. Since then, Asbell has been practicing
law in Collingswood.
The Attorney General charged Asbell with the fourth-degree crime of filing a false police report.
Pursuant to a plea agreement, on April 24, 1990, Asbell admitted his guilt, agreed to make restitution,
and agreed to refrain from possessing or using firearms for a period of three years. In exchange for the
admission of guilt, the Attorney General's Office agreed not to object to Asbell's application for
admission into the pre-trial intervention program (PTI). On September 17, 1990, Asbell was admitted into
PTI for a three-year probationary period.
The OAE filed an ethics complaint against Asbell claiming violations of Rule of Professional Conduct
(RPC) 8.4 (b), (c) and (d). An ethics hearing was held before Special Master A. Jerome Moore. Asbell
asserted insanity and/or diminished capacity as an affirmative defense. Asbell also contended that: 1)
the OAE was estopped from alleging any violations of criminal or quasi-criminal laws by virtue of his plea
agreement; and 2) once the affirmative defense of insanity and/or diminished capacity is raised, the
burden shifts to the OAE to show that Asbell was mentally responsible for the acts requiring disciplinary
action.
After ten days of hearings that included testimony from three psychiatrists, the Special Master
granted the OAE's motion to strike the insanity defense. The Special Master also found that Asbell's
admission of guilt was an admission of the events that occurred January 1st and was, thus, a violation of
the RPCs set forth in the OAE's complaint. In addition, the Special Master concluded that in an attorney
disciplinary matter, an unconditional plea of guilty resulting in admission to PTI has the same effect as a
criminal conviction. The Special Master noted that public confidence in the bar would be greatly
undermined if a member of the bar were permitted to enter an unconditional guilty plea to a criminal
charge in open court and later argue that the plea cannot be used in a disciplinary proceeding. The
Special Master withheld consideration of the issue of the burden of proof. Nonetheless, he did rule that
if the burden rests with the OAE, it had met its burden; however, if the burden rests with Mr. Asbell, then
he had not met that burden. Finally, the Special Master found that, if the guilty plea did not have the
effect of an admission of all charges, the record supported the finding that Asbell's conduct was clearly
unethical and that he had consciously and knowingly violated the RPCs. The Special Master
recommended the imposition of public discipline in order to maintain public confidence in the legal
profession and the judicial system.
The DRB affirmed the Special Master's findings and conclusions. It agreed with the Special Master
that Asbell's misconduct was particularly egregious because of his position as County Prosecutor. A
four member majority of the DRB recommend a suspended two-year suspension with proctorship and
psychiatric treatment. To support its recommendation, the majority referred to the mitigating
circumstances, including Asbell's lengthy and prior unblemished legal career, his service and dedication
to the profession, his excellent reputation and good moral character, his extreme commitment and
attachment to his position as Prosecutor, and the aberrational nature of the incident. Three members of
the DRB favored the imposition of a one-year active suspension.
HELD: To maintain confidence in the disciplinary system and the integrity of the bar, Samuel Asbell
must be suspended from the practice of law for a period of two years.
1. Mitigating evidence that includes evidence of mental or emotional weakness during a time of
extreme stress does not preclude a suspension when the facts demonstrate serious ethical infractions.
The evidence clearly and convincingly establishes misconduct, dishonesty, fraud, deceit,
misrepresentation, and conduct prejudicial to the administration of justice in violation of RPC 8.4(b), (c)
and (d). Balanced against an otherwise unblemished record, that misconduct, although aberrational,
requires an extended period of suspension. (pp. 16-18)
2. A suspension can be appropriate even though the offense does not directly touch on the practice
of law. Asbell's conduct reflects adversely on all prosecutors and adversely affected the public interest.
Further, involuntary suspension is not considered a mitigating factor unless imposed by order of this
Court. Therefore, the period of time that Asbell voluntarily suspended himself cannot be considered as a
form of discipline. Finally, based on the circumstances of this case, an extended period of suspension is
not disproportionate. (pp. 19-22)
So Ordered.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN,
GARIBALDI and STEIN join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
102 September Term 1993
IN THE MATTER OF
SAMUEL ASBELL,
AN ATTORNEY-AT-LAW
Argued March 15, 1994 -- Decided May 13, 1994
On an order to show cause why respondent
should not be disbarred or otherwise
disciplined
William Wood, Assistant Ethics Counsel,
argued the cause on behalf of Office of
Attorney Ethics.
Carl Poplar argued the cause for respondent
(Poplar & Eastlack and Koslov, Seaton,
Romanini & Brooks, attorneys; Teri S. Lodge,
on the brief).
PER CURIAM
Respondent, Samuel Asbell, is a former Camden County
Prosecutor who staged an assassination attempt on his own life.
He pleaded guilty to knowingly filing a false police report
contrary to N.J.S.A. 2C:28-4a. In this proceeding, respondent,
notwithstanding his guilty plea and admitted violation of several
ethical rules, asserted the defense of insanity. He voluntarily
withdrew from the practice of law until psychiatrists could
evaluate his mental capacity. We permitted him to resume
practicing law under the supervision of a proctor, provided that
he not practice in the public sector. The District XIV Ethics
Committee (Committee) recommended a public reprimand, and the
Disciplinary Review Board (DRB) recommended a suspended two-year
suspension. A minority of the DRB recommended an unqualified
one-year suspension.
In light of respondent's serious ethical misconduct, we
conclude that the appropriate discipline is a two-year suspension
from the practice of law. Contrary to the recommendation of the
DRB, the suspension is not to be suspended.
Our reading of the record is substantially similar to that of the DRB. Respondent was admitted as a member of the New Jersey Bar in 1969. On December 17, 1984, he was appointed Camden County Prosecutor, a position in which he served until his resignation on January 5, 1990.
During his tenure as county prosecutor, respondent developed
a reputation as a colorful prosecutor who enjoyed his position.
Basking in the media limelight, respondent deeply enjoyed his
job.
At the time of the relevant events, December 1989 and January 1990, respondent was a holdover prosecutor, his term of office
having expired. A Republican, respondent hoped that he might be
reappointed by then Governor-elect Jim Florio, a Democrat. In
the alternative, respondent hoped that a new statewide position
might be created for him as a "drug czar" -- an official in
charge of overseeing all narcotics operations in New Jersey. His
hopes were unfounded: respondent conceded that he had never been
told that he would either be reappointed as prosecutor or
appointed as drug czar.
For one week during the December 1989 holidays, respondent
and his family vacationed in Vail, Colorado. Throughout that
vacation, respondent experienced considerable stress and anxiety
for having absented himself from New Jersey at such a crucial
time in his career. According to respondent, those feelings
lasted "[f]rom the day I left until the day I got back." He
explained that he "was afraid to leave for fear somebody --something would come up that would have something to do with my
position and that I wanted to be there." Asked at the ethics
hearing how much he had thought about his future while in Vail,
respondent replied: "I would -- I was calling the office, I was
calling various people, I was calling the freeholders, I was
constantly on the phone, whenever I would come to a place where
there was a phone I was making telephone calls."
On December 30, 1989, respondent and his family returned to
New Jersey. The next day, December 31, 1989, respondent and his
wife attended a New Year's Eve party at a friend's home in Cherry
Hill. Respondent knew that Governor-elect Florio, whom
respondent had met when both practiced law in Camden County,
would be one of the guests. According to respondent, he
"perceived that this would be an opportunity for the [G]overnor
elect and I to talk and get my future straightened out."
Nevertheless, despite respondent's hopes and expectations, his
contact with Florio on that night did not extend beyond
salutations and congratulatory remarks on the election.
Florio left the party shortly after midnight. Respondent
stayed on until 3:00 a.m. He then went home, slept until 7:00
a.m., and at 8:00 a.m. went jogging with two of his friends.
Thereafter, respondent and his wife attended a brunch at a
friend's house. After the brunch, respondent took his wife home
and drove to his Camden office to inspect his mail. Respondent
explained, "[w]henever I was out of the office for any period of
time I always wanted to go through my mail and I knew I had to be
places that week so I planned to go to do my mail and then I
wouldn't have to worry about it." Arriving at his office at 3:00
or 3:30 p.m., respondent opened his mail and dictated several
letters to his secretary.
Respondent left the office between 4:00 and 4:30 p.m.,
carrying two service weapons: a .380-caliber automatic pistol
and a .12-gauge shotgun. In addition, he had placed in his
briefcase an unregistered .45-caliber pistol with two clips
containing six shots each. He left another, registered,
.45-caliber pistol at his office. The pistols were part of
respondent's extensive private collection of firearms.
Respondent had removed the unregistered pistol from a cardboard
box located in the crawl space of the basement in his house,
where he also kept eight other pistols.
Once in his automobile, respondent telephoned his wife to let
her know that he would be home in ten or fifteen minutes.
Respondent then drove to a deserted area in South Camden on Front
Street, near the intersection of Kaighn Avenue. According to
respondent, he had driven impulsively to that area, after having
made a right turn on Route 676 instead of his customary left
turn. He explained that he had "just [driven] down there" and
said "gee, this looks like a nice spot." He then grabbed the
.45-caliber pistol from his briefcase, left the car, walked
across the street until he was standing fifteen or twenty feet
from his car, and fired seven rounds into the county-owned
Lincoln Town car. The incident caused $6,500 in damages.
After shooting his automobile, respondent re-entered the car,
grabbed his .380-caliber service pistol and fired it into the
ground. He then drove for approximately one mile, stopped the
car for a moment on a main street, took out the .12-gauge shotgun
from the car trunk and fired it into the ground. He returned the
shotgun to the trunk, drove to the Camden City Police Station,
and sat in the parking lot for an indeterminate period of time.
After knocking on the back door, he was admitted into the police
station. He was clutching his briefcase, in which he had placed
the .45-caliber pistol. He refused offers of the police officers
to hold the briefcase for him.
Over the next three days, respondent gave the police
misleading accounts of the shooting incident. In his statements,
respondent recounted how, on leaving the Parkade Building where
his office was located, he had noticed a green Toyota station
wagon parked nearby with two occupants. When respondent
approached the intersection of Federal and Fifth Streets, the
Toyota accelerated toward respondent's car and proceeded to chase
it to the Camden waterfront at a high rate of speed. When
respondent neared Second Street, the assailants shot out the rear
window of the car, sending flying glass onto the dashboard. At
that point, respondent entered Front Street and accelerated, but
slid on the ice on the railroad tracks. It was then that he
heard the burst of the automatic weapon which
just sounded like a burp and all hell broke
loose in my car and glass was flying all over
the place and the car pulled up along side
and I saw the passenger raise his weapon; I
just stuck the sawed off shotgun out the
window and let go. I saw the passenger go
forward and it appeared to me as if a mellon
[sic] was exploding. I thought I saw glass
shatter * * * but it was possible that there
was not glass shattering it was just the
charge of the 12 gauge shotgun hitting the
passenger. I couldn't get my finger into my
rear trigger to take another shot and the car
was beginning to accelerate towards Kaighn
Avenue. I pulled my 380, I remember hitting
the door with my shoulder and glass coming on
top of my arm and then I opened the door and
began and continued to fire as the car
proceeded around Front and Kaighn and I must
have gone back because I remember running up
to the corner and firing a shot at the
corner, pulling the trigger and my slide was
back and I saw the car driving eastbound on
Kaighn Avenue way up passed [sic] Second
* * *.
Respondent also told police that, in the course of the prior
several years, he had received numerous death threats and that
a mere ten days before, on December 21, 1989, an attempt had been
made on his life when he was driving out of the Parkade Building
and turning left onto Fifth Street. That incident had left two
bullet holes in his car.
Based on respondent's version of the events, the New Jersey State Police, Camden City Police, and investigators from the Camden County Prosecutor's Office began a massive investigation. According to the testimony of several of those officers and
investigators, however, respondent's tale rang false from the
start. Police investigators uncovered physical evidence of the
position of the .45-caliber shell casings at the scene of the
incident that were inconsistent with respondent's description.
Police investigators also obtained a statement by an eyewitness,
Ronald Moorer, who had seen a large, dark automobile -- not two
cars -- operated by a white male drive up at a normal speed onto
Front Street close to where he was standing. When Moorer heard
shots, he yelled, fearing for his safety. He then saw the same
vehicle speed away with the rear window shot out.
While the investigation was being conducted, respondent
proceeded with his normal official functions, albeit with police
protection. He also spoke about the incident at a press
conference, despite urging to the contrary by Lieutenant Robert
Dunlop of the Major Crimes Unit of the New Jersey State Police
and by Dennis Wixted, Esq., the county's first assistant
prosecutor.
By the third day of investigations, January 4, 1990, the police were convinced that respondent had staged a hoax. They asked him to go to the Bellmawr Barracks, New Jersey State Police Intelligence Office. Present were Lieutenant Dunlop and Major Olindo Tezo, an investigations officer. When confronted with overwhelming evidence against him, respondent at first denied any
wrongdoing. He continued his denial even when informed that the
police had located an eyewitness, Mr. Moorer. When he learned,
however, that the police had prepared an application for a
warrant to search his house for the .45-caliber pistol,
respondent confessed. He admitted that he had staged an
assassination hoax.
In his statement to the police, respondent gave the following
account of the incident:
On December 21, 1989, there was an attempt on
my life when I was operating my motor
vehicle, when I was exiting the Parkade
Building and, making a left on Fifth Street.
Subsequent to that situation, I went on
vacation and when I came home, I just thought
about doing this on New Year's Day. So I
took a 45 automatic, and loaded it, and
proceeded to drive down to Front Street, and
I got out of the car and I walked across the
street, and I got back into the car and I
drove to the police station. It was as
simple as that. * * * If you were to ask me
why, or what was the reason, I don't have
any. I honestly don't have any.
Respondent stated that he had intended to confess the truth about the incident when he gave his initial statement to the Camden City police and on every day following that evening, but he did not know how to do it. After completing his statement to the police, respondent left the room and walked up to William Latham, a long-time associate, shook his hand, and apologized for the
embarrassment he had caused him and others in the Prosecutor's
Office. Investigator Latham stated that respondent had said to
him that "he just wanted his job so bad."
Directly from the Bellmawr Barracks, respondent went to the
Carrier Clinic for treatment. In his progress notes, Dr. Michael
L. Kropsky, a psychiatrist at the Carrier Clinic, wrote the
following:
The patient indicated that on December 21st
his car had apparently been shot at as he
discovered what seemed to be a bullet in it.
He said that he does not think he was in the
car at the time and if he was he would have
thought it was just a stone. He said that
this gave him the idea which eventually led
to the incident on January 1st. When he
initially had the idea he said that he
thought to himself how crazy it was. He then
thought about it again when he was on a ski
vacation in Colorado and said that the second
time he thought about it it did not seem so
crazy. * * * He says that he realizes that
there was no chance that his story would be
believed but at the time he did not think
about that.
Respondent spent nineteen days at the Carrier Clinic, nine days fewer than the average twenty-eight-day stay for patients. He was released on January 24, 1990. Dr. Kropsky's final diagnosis was "adjustment disorder with mixed disturbance of emotions and conduct," and "mixed personality disorder with histrionic and narcissistic features." Dr. Kropsky's final diagnosis also
included the following language: "[r]ule out brief reactive
psychosis."
On his release, respondent voluntarily agreed not to practice
law pending a determination of his mental capacity to practice
law. Dr. Kropsky referred him to Dr. H. Charles Fishman, a
clinical psychiatrist in Philadelphia, for therapy. Dr. Fishman
conducted approximately seventy sessions with respondent, some of
which included respondent's family. Dr. Fishman ultimately
concluded that respondent was mentally fit to practice law.
Respondent advised the Office of Attorney Ethics (OAE) that
he intended to resume his practice. The OAE objected and filed a
motion for respondent's temporary suspension on June 6, 1990. On
July 11, 1990, after respondent had consented to his continued
withdrawal, this Court deferred the OAE's application for ninety
days, during which time the OAE was to finish its investigation
and file a supplemental report. By order dated December 20,
1990, the Court denied the OAE's application and allowed
respondent to resume his practice of law under proctorship. The
order also contained a restriction against respondent's legal
employment in the public sector. Since then, respondent has
practiced law in Collingswood, Camden County.
In an accusation, the Attorney General's office charged
respondent with the fourth-degree crime of filing a false police
report in violation of N.J.S.A. 2C:28-4a. Pursuant to a plea
agreement, on April 24, 1990, respondent admitted his guilt and
agreed to make restitution of $12,000 in partial compensation for
the cost of the police investigation and the damage to his
county-owned automobile. Respondent also agreed to refrain from
possessing or using firearms for a period of three years. In
exchange for respondent's admission of guilt, the Attorney
General's Office agreed not to object to respondent's application
for admission into the pre-trial intervention program (PTI).
When entering his guilty plea, respondent admitted that he
had knowingly given or caused to be given false information to a
law-enforcement officer -- Lieutenant Dunlop -- with the purpose
of implicating two fictitious persons in the assassination
attempt on his life. Specifically, respondent acknowledged that
[d]uring the first few days of January [1990] I
reported to the Camden City and New Jersey State Police
that I was shot at by unknown individuals. This
information was not accurate and led to my filing a
false police report. I deeply regret that this
happened and I am truly sorry for the anguish that
these events have caused my family, friends and
colleagues. Through medical help I now realize that my
actions were as a result of a combination of many
factors not known to me at the time. Through
counseling and guidance I have come to understand the
causes and reasons for my actions and believe that no
such conduct will ever occur again.
When the court asked respondent if he was entering a plea of
guilty because he was guilty, respondent replied, "yes, sir."
On September 17, 1990, the court admitted respondent into PTI,
with a three-year probationary period.
The OAE's complaint charged respondent with official
misconduct in violation of N.J.S.A. 2C:30-2a, 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") (count one); possession of a weapon for an unlawful
purpose, in violation of N.J.S.A. 2C:39-4a, RPC 8.4(b), RPC
8.4(c), and RPC 8.4(d) (count two); criminal mischief in
violation of N.J.S.A. 2C:17-3a(1), RPC 8.4(b), RPC 8.4(c), and
RPC 8.4(d) (count three); and the filing of a false report to
law-enforcement authorities in violation of N.J.S.A. 2C:28-4a,
RPC 8.4(b), RPC 8.4(c), and RPC 8.4(d) (count four).
At the ethics hearings before Special Master A. Jerome Moore, respondent admitted all of the factual allegations contained in the complaint except the allegation that he had hidden a .45-caliber semi-automatic pistol in the crawl space of the basement in his house. Respondent admitted only that he had
placed the pistol there. Additionally, respondent denied all
allegations that he had knowingly staged an assassination attempt
on his life, and asserted insanity and diminished capacity as an
affirmative defense. Respondent also contended that the OAE was
estopped from alleging any violations of criminal or quasi-criminal laws by virtue of his plea agreement. Finally,
respondent argued that "constitutionally, once the affirmative
defense of insanity and/or diminished responsibility is raised,
and has been proven by [a] preponderance of the evidence, the
burden of proof then shifts to the Complainant to show that the
Respondent was mentally responsible for the acts alleged to
warrant disciplinary action."
After ten days of hearings, during which he heard testimony
from three psychiatrists, the Special Master granted the OAE's
motion to strike the insanity defense. The basis for granting
the motion was that the defense was inconsistent with
respondent's guilty plea, in which he admitted filing a false
report with law-enforcement authorities, an offense that requires
knowledge. Additionally, the Special Master also found that
respondent's admission of guilt was, in effect, "an admission of
all the events of January 1, 1990 and thus a violation of the
Rules of Professional Conduct set forth in the formal complaint,
Counts One, Two, Three and Four, RPC 8.4(b)(c)(d)."
The Special Master also concluded that in an attorney
disciplinary matter, an unconditional plea of guilty resulting in
the defendant's admission to PTI has the same effect as a
criminal conviction. As noted by the Special Master:
The Supreme Court has on numerous occasions emphasized
that one of the central goals of attorney discipline is
to maintain public confidence in the bar, the
professionalism of its members, the judiciary, and the
Court. I find that the public confidence in the bar
would be greatly undermined if a member of the bar were
permitted to enter an unconditional guilty plea to a
criminal charge in open court and then turn around and
argue that the plea cannot be used in a disciplinary
proceeding.
Concerning respondent's argument that the burden of proof
remained with the OAE to establish by clear and convincing
evidence culpability of a respondent who raises insanity as an
affirmative defense, the Special Master withheld consideration as
mandated by Rule 1:20-3(i). The Special Master ruled, however,
that
[f]or the purpose of this report, I
specifically find, based on the testimony of
the doctors and the evidence, that if the
burden of proof rests with the OAE, then they
have met their burden. If the burden of
proof rests upon Mr. Asbell, then he has not
met that burden, thus the affirmative defense
of insanity and/or diminished responsibility
must fail for lack of believable medical
testimony.
Finally, the Special Master found that, if the guilty plea
did not have the effect of an admission of all charges, the
record supported the finding that respondent's conduct was
clearly unethical and that respondent had consciously and
knowingly violated the Rules of Professional Conduct. The
Special Master recommended the imposition of public discipline.
As stated in the Special Master's Report:
The conduct alone requires such a
recommendation and the additional factor that
Mr. Asbell was [a] prosecutor at the time
almost demands such treatment. Mr. Asbell's
prior excellent conduct must be set aside and
public discipline recommended in order to
attempt to maintain public confidence in the
profession and the court.
The DRB affirmed the Special Master's findings and conclusions. It agreed with the Special Master that respondent's misconduct was particularly egregious because of his status as a county prosecutor, the chief law-enforcement officer in Camden County. His actions embarrassed all public officeholders, particularly county prosecutors, and betrayed the public trust. The DRB stated that "[i]n order to preserve the public faith in the profession and in the judicial system, stern discipline must be imposed." We agree.
The DRB, however, did not recommend that respondent be
disbarred. Nor did it recommend that respondent be suspended
from practicing law. Instead, a four-member majority of the DRB
recommended a suspended two-year suspension with a proctorship
and psychiatric treatment. To support its conclusion, the DRB
majority referred to mitigating circumstances, including
respondent's lengthy and prior unblemished legal career, his
service and dedication to the profession, his excellent
reputation and good moral character, his extreme commitment and
attachment to his position as prosecutor, the aberrational nature
of the incident -- a product of psychological impairment and poor
judgment, and the ignominy he has suffered as a result of his
transgressions.
Three members of the DRB would have imposed a one-year active
suspension to preserve the public confidence in the bar and in
the judicial system and to avoid the perception that respondent
was being favored with an "overdose of judicial indulgence."
Those three members also would recommend a one-year proctorship
and concurrent psychiatric care.
Like the DRB, we are persuaded by the evidence that respondent should not be disbarred. Notwithstanding his bizarre conduct in staging an attempted assassination on his own life,
respondent remains a respected member of the bar. Before the
event that gives rise to this proceeding, he was an active member
in the Camden County Bar Association and served as its president.
Several witnesses, including fellow county prosecutors and other
colleagues, testified to respondent's excellent character and
high standard of honesty and integrity. The incident at issue,
which apparently transpired during a time of great stress, was an
aberration in respondent's twenty-five-year career. Considerable
testimony revealed that respondent may have suffered a
psychological disorder. Although that testimony does not support
a defense of insanity, it suggests that respondent's conduct was
aberrant. As we reasoned in In re Farr,
115 N.J. 231 (1989),
when the cause of ethical transgressions seems to be "'some
mental, emotional, or psychological state or medical condition
that is not obvious and * * * could be corrected through
treatment'", the respondent "need not be disbarred to preserve
confidence in the bar or to protect the public." Id. at 237
(quoting In re Templeton,
99 N.J. 365, 374 (1985)). That
exception, however, does not apply to the knowing
misappropriation of funds. In re Skevin,
104 N.J. 476 (1986).
To maintain public confidence in the profession and the court, however, we must balance respondent's record with the gravity of his ethical misconduct. See In re Bock, 128 N.J. 270, 275 (1992). As in Farr, mitigating evidence that includes
evidence of mental or emotional weakness during a time of extreme stress does not preclude a suspension when the facts as presented demonstrate serious ethical infractions. See also Bock, supra, 128 N.J. at 274 (stating that stress-induced anxiety unravels in light of calculated acts of misconduct). Here, respondent planned a fictitious assassination attempt on his own life for his own personal gain. He meticulously prepared for the incident by retrieving an unregistered .45-caliber pistol, loading it, and taking it with him to the Parkade Building. Then, he fired seven rounds of his weapon into his county-owned car, causing $6,500 in damages. He knowingly gave erroneous information to police investigators and filed a false report, a fourth-degree crime in violation of N.J.S.A. 2C:28-4a, with the purpose to implicate others and with the effect of instigating a costly investigation. He called a press conference, at which he related the fabricated events to the media with the vain hope of winning public sympathy in an attempt to encourage his reappointment as a county prosecutor. As evidence mounted against him, he adhered to his fabricated story, finally revealing the truth only when the police informed him that they had a search warrant for his home. This evidence clearly and convincingly establishes misconduct, dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration of justice in violation of RPC 8.4(b), (c), and (d). Balanced against respondent's otherwise
unblemished record, his misconduct, although aberrational,
requires an extended period of suspension.
Respondent argues that his conduct did not put the public at
risk and did not directly relate to the practice of law. In
Bock, however, we faced a similar situation. There, a municipal
court judge faked his own death. We concluded that a suspension
was appropriate although the offense did not directly touch on
the practice of law. 128 N.J. at 275. Because Bock's
misrepresentation had occurred while he was a member of the
bench, we concluded that it adversely reflected on his judicial
role. Id. at 277. So here, respondent's faked assassination
attempt reflects adversely on all prosecutors.
Respondent's misrepresentations, like Bock's, adversely
affected the public interest. Respondent, like Bock, caused
uncertainty resulting in a massive investigation. In Bock, we
stated that we could not "agree that partners, clients, and the
public are not injured when the conduct of a lawyer and part-time
municipal court judge" caused such disruption through his lack of
candor. Id. at 276. Here, respondent caused the same kind of
disruption. In the face of mounting evidence, he constantly
misrepresented facts during the investigation. We cannot
countenance his continued deception of the public and
law-enforcement authorities.
Respondent further argues that he has already been
disciplined adequately for his admitted transgressions because of
his voluntary withdrawal from the practice of law. We reject
this argument. In Farr, we expressly noted that a voluntary
suspension would not be considered a mitigating factor unless
imposed by order of this Court. See Farr, supra, 115 N.J. at
238. Respondent's voluntary suspension was not pursuant to an
order by this Court. Therefore, the period of time that
respondent voluntarily suspended himself cannot be considered as
a form of discipline.
Finally, respondent argues that compared to similar cases, an
extended period of suspension for his misconduct would be
disproportionate. He bases his argument on the mitigating
evidence of his past conduct, his dedication to the bar and to
his office, and on the psychiatric evidence indicating a mental
impairment during extreme stress. We believe, however, that an
extended period of suspension is not disproportionate.
In Farr, we imposed a six-month suspension on an assistant prosecutor because of a bizarre incident in which he removed from the prosecutor's evidence room drugs that he used himself and provided to others for their use. Infatuated with a woman who was a criminal defendant, Farr committed various acts of misconduct to ingratiate himself with her. Finally, he falsely
introduced her as an employee of the prosecutor's office and
allowed her to accompany him on a narcotics investigation. 115
N.J. at 237-38. We were persuaded, however, that Farr's naive,
immature character rendered him susceptible to manipulation
during a time of extreme personal stress. Id. at 233, 237.
Most recently, in In re Hoerst, ___ N.J. ___ (1994), we
imposed a six-month suspension on a Salem County prosecutor who
pleaded guilty to theft of forfeiture funds to finance a trip to
California for himself and his female companion. The record did
not indicate that Hoerst suffered from any stress at the time of
his infraction. Hoerst, unlike Farr, was "mature, experienced,
seasoned." We would have imposed an extended period of
suspension on Hoerst if at the time of his offense the Attorney
General had provided guidelines to prosecutors on the
implementation of the forfeiture statute.
Like Farr, this respondent suffered stress concerning his
career, and like Farr, respondent participated in aberrational
behavior. But unlike Farr, respondent is not a young, naive
lawyer. He is a seasoned attorney, like Hoerst. Furthermore,
although respondent was obsessed with continuing as the county
prosecutor, the record indicates that at the time of the feigned
assassination attempt, he conducted himself rationally in
professional and social situations. The psychiatric testimony
was contradictory with regard to respondent's claim of insanity.
Neither the Special Master nor the DRB was persuaded by the
testimony of respondent's doctors. Finally, unlike in Hoerst,
respondent did not need guidelines to know that his conduct was
dead wrong. Under these circumstances, we believe that a two-year suspension is appropriate.
We recognize that a suspension will disrupt respondent's
professional life and his ability to serve his clients. At first
glance, our refusal to suspend him during the pendency of this
proceeding may seem inconsistent with the suspension that we now
order. We granted respondent permission to resume his practice,
however, at a time when his ethical violations had not been fully
investigated. Now, we are better informed. To maintain
confidence in the disciplinary system and the integrity of the
bar, the Court must suspend respondent from practicing law for
two years.
Respondent also shall reimburse the Ethics Financial
Committee for appropriate administrative costs, including the
costs of transcripts.
So ordered.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.