(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 May 1, 1995 -- Decided June 30, 1995
PER CURIAM
An attorney-ethics complaint was filed against Stephen Pepe, a former Judge of the Superior Court.
The complaint was based on a presentment filed by the Advisory Committee on Judicial Conduct of the
Supreme Court of New Jersey (ACJC), which recommended the Court initiate proceedings to remove Pepe
from judicial office. The Court removed Pepe as a Judge of the Superior Court and barred him from
holding any future judicial office.
The ethics complaint charged Pepe as an attorney with violation of the Rules of Professional
Conduct in that he committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects, and he engaged in conduct prejudicial to the administration of justice.
The ACJC presentment provides the relevant facts. Pepe and a confidential informant for the
Division of Criminal Justice had known each other for about 16 years. In 1986, the informant lived with
Pepe for two weeks, during which time the two smoked marijuana on many occasions each day. The
informant later moved out of the area. Pepe did not see the informant between 1987 and 1990. In May
1990, while fishing with his son, Pepe saw the informant. Pepe told the informant that he was now a
Superior Court Judge in Ocean County. The informant came to Pepe's judicial chambers on June 25, 1990,
seeking Pepe's assistance in securing employment. Pepe introduced the informant to a litigant who was
waiting in Pepe's chambers. The litigant had known Pepe for many years. The litigant and the informant
discussed job possibilities and made arrangements to meet the following day.
On the evening of June 26, 1990, Pepe went to the informant's apartment where he, the informant,
and the informant's wife smoked marijuana provided by Pepe. The informant also suggested that he and
Pepe in the near future have a party with some women where they would all smoke marijuana.
The informant contacted law enforcement authorities and eventually was put in touch with the
Division of Criminal Justice. He agreed to serve as a confidential informant and to have all conversations
between he and Pepe recorded. The informant asked that, in return, the United States Drug Enforcement
Administration be notified of his cooperation. Thereafter, the informant taped several conversations wherein
Pepe discussed the possibility of future meetings to smoke marijuana.
The ACJC found that Pepe had used marijuana in the company of the informant and the
informant's wife on June 26, 1990, and that he supplied the drug used on that date. The ACJC also found
that Pepe "improperly lent the prestige of his office to advance the private interests of the [i]nformant" when
he arranged an introduction with a litigant in a matter before him, for the purpose of getting the informant a
job.
In the ethics proceedings, the special master found that Pepe's conduct was unethical and recommended a public reprimand. In its review, the Disciplinary Review Board (DRB) noted that: Pepe engaged in unethical conduct on several occasions; his misconduct was not limited to mere personal use of marijuana; he provided the illegal substance to third parties when he was a member of the bench and bar; he engaged in not only past illegal conduct, but also planned, from his chambers, to engage in future illegal
conduct; and, he committed this misconduct while a Judge of the Superior Court. In mitigation, the DRB
considered Pepe's cooperation with the disciplinary authorities, his past and continuing unblemished career,
and the indignation and extreme public and professional humiliation he had suffered. A majority of the
DRB recommended a public reprimand; one member would have imposed a three-month suspension; and
two members would have imposed a private reprimand.
HELD: Stephen A. Pepe is suspended from the practice of law for three months, effective July 24, 1995.
1. Determinations made in judicial-removal proceedings are conclusive and binding in subsequent attorney-disciplinary proceedings. Thus, the ACJC's findings, substantially accepted by this Court in the removal
proceedings, are binding in these ethics proceedings. The only issue to be determined is the appropriate
measure of discipline. (p. 8)
2. Attorneys who occupy positions of public trust are held to higher ethical standards. A criminal conviction
is conclusive evidence of an attorney's guilt in an ethical proceeding. That same principle applies in respect
of the determination or admission of judicial misconduct for which discipline has been imposed. (p. 9)
3. Transgressions by attorneys that bespeak indifference to the law and the legal system destroy public
confidence in the integrity of the bar. Discipline is warranted even if the conduct does not directly implicate
the practice of law or damage the client's interests. (pp. 9-10)
4. Pepe's involvement with the marijuana was not innocuous. He was guilty of sharing or distributing
marijuana; he used it on more than one occasion; he conspired to continue to use marijuana and involve
others in its use; and he had engaged in the use and possession of marijuana in the past. Thus, in terms of
gravity, Pepe's conduct is comparable to those cases in which this Court has consistently imposed a three-month suspension. Moreover, Pepe committed these drug offenses while he was a judge and illicit activity
occurred in the court house. Such conduct directly compromises the judiciary as an institution. (pp. 10-12)
5. The Court acknowledges Pepe's good record and is aware of Pepe's painful embarrassment and deep
remorse. Nonetheless, contrition and mortification alone cannot repair and restore public confidence in the
profession. Only adequate discipline can accomplish that task. (pp. 12-13)
So ordered.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
D-
111 September Term 1994
IN THE MATTER OF
STEPHEN A. PEPE,
An Attorney at Law.
Argued May 1, 1995 -- Decided June 30, 1995
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Nitza I. Blasini, Deputy Ethics Counsel,
argued the cause on behalf of Office of
Attorney Ethics.
George L. Schneider argued the cause for
respondent (Lorber, Schneider, Nuzzi,
Vichness & Bilinkas, attorneys).
PER CURIAM.
An attorney-ethics complaint was filed against respondent,
Stephen A. Pepe, a former Judge of the Superior Court. The
complaint was based on a presentment filed by the Advisory
Committee on Judicial Conduct of the Supreme Court of New Jersey
(ACJC or Committee), which recommended that the Court initiate
proceedings to remove respondent from judicial office, pursuant
to N.J.S.A. 2A:1B-1 to -11 (repealed by L. 1991, c. 119, § 4;
replaced by N.J.S.A. 2B:2A-1 to -11). The Court removed
respondent as a judge of the Superior Court and barred him from
holding any future judicial office.
The ethics complaint charged respondent as an attorney with
violation of Rules of Professional Conduct (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) and RPC 8.4(d) (engaging in conduct prejudicial to the
administration of justice). A special master heard the matter
and recommended the imposition of a public reprimand. Following
its review of the matter, a majority of the Disciplinary Review
Board (DRB) recommended a public reprimand. We, however, reject
the recommendation and order respondent suspended from the
practice of law for three months.
The facts that give rise to the complaint are contained in the ACJC presentment:
Respondent and [a confidential informant for the Division of Criminal Justice] had known each other for about 16 years. In 1986, the Informant lived with Respondent for two weeks, during which time the two smoked marijuana on many occasions each day. The Respondent furnished this marijuana. The Informant moved away from the area in 1987 and had no contact with the Respondent for several years.
In May 1990, Respondent was fishing with his son on the Toms River when he was approached by the Informant, whom he had not seen since before his appointment to the bench. During their brief conversation, Respondent mentioned that he had become a Judge of the Superior Court and that his
chambers were in the Ocean County Court
House. After that conversation, Respondent
and the Informant did not see one another
again until the early morning of June 25,
1990, when the Informant visited Respondent
at his chambers to ask for Respondent's help
in getting a job. Respondent had the
Informant wait outside his office and
subsequently brought him back in and
introduced him to a litigant in a matter that
had been before Respondent for a calendar
call and that was in the process of being
settled. This litigant had known Respondent
for many years and had built Respondent's
house for him. The litigant and the
Informant discussed the possibilities of
employment, and they made arrangements to
meet the following morning. Respondent and
the Informant also agreed to meet the
following day at the latter's apartment.
Respondent played a minimal role in the
case involving the aforementioned litigant.
When the case came before him at calendar
call, the attorneys informed him that they
were working out a settlement in the case.
Respondent replied that any settlement would
have to be put on the record before a
different judge because he was recusing
himself from any participation in the case on
the basis of his knowledge of one of the
parties, namely the litigant referred to
above. The case was subsequently settled and
the settlement was put on the record before a
different judge.
Sometime between 5:00 and 5:30 p.m. on
June 26, 1990, Respondent left the court
house and went to the apartment rented by the
Informant and his wife. There, the three of
them smoked marijuana provided by the
Respondent. They had used marijuana together
in the past, prior to Respondent's
appointment to the bench, as Respondent had
admitted. At one point during the visit,
when the Informant's wife was out of the
room, the Informant suggested to Respondent
that the two of them get together in the near
future with some women known to the Informant
and have a party at which all would smoke
marijuana.
Subsequently, the Informant contacted law
enforcement authorities and was put in touch
with the New Jersey Division of Criminal
Justice. He reported that Respondent had not
only used marijuana but also used and
distributed other drugs. He agreed to serve
as a confidential informant and to have all
conversations between Respondent and him
recorded. He informed the Division that the
United States Drug Enforcement Administration
had seized over 200 pounds of marijuana that
he was transporting earlier that year, and he
further advised that he was cooperating in
the DEA's investigation. The Division of
Criminal Justice agreed, inter alia, to
inform the DEA of the Informant's cooperation
with it in the present matter.
On July 2, 1990, the Informant visited
Respondent in his chambers. Unbeknownst to
Respondent, the Informant was wearing
recording equipment, and their conversation
was being recorded by Detectives of the State
Police. During this conversation, the
Informant and Respondent discussed the
possibility of future meetings at which they
would smoke marijuana. Respondent stated
that there would be no problem in his finding
marijuana.
On July 3, July 9, and July 10, the
Informant placed telephone calls to
Respondent at his chambers. During the
conversations on July 3, the Informant
arranged for a meeting with Respondent and
two women for anytime after 12:30 p.m. on the
following Tuesday. The two women were
undercover officers of the State Police. On
July 10, Respondent told the Informant that
he was very busy and would not be able to
attend the meeting that Respondent had
arranged for that day.
On July 12, 1990, the Informant went to Respondent's chambers, again wearing a concealed recording device. When he entered chambers, Respondent wrote out and handed him a note reading "Don't mention drugs" (Exhibit P-6). When the Informant said that the two women had been disappointed when Respondent did not show up for their meeting, Respondent wrote out another note reading "I didn't like
the idea that we had to have pot 1st -- made
me nervous!" (Exhibit P-7). The Informant
asked Respondent to visit his apartment the
following week and to bring marijuana with
him. After some discussion, Respondent
replied that he had none. When the Informant
asked about the marijuana that Respondent had
brought to his apartment on June 26,
Respondent replied that the marijuana in
question was old and that he had no more.
After the conversation in Respondent's
chambers, the Informant returned to the
detectives who had been recording the
conversation. The detectives reported what
had occurred to the Division of Criminal
Justice, and an application was made for a
search warrant and for an order to compel
Respondent to give a urine sample to the
detectives. The application was granted, and
the detectives went to Respondent's chambers
shortly after noon. They informed him that
he was under suspicion of possession and
distribution of controlled dangerous
substances and that both a search warrant and
an order to produce a urine sample had been
obtained. Respondent refused to permit a
search until the warrant was physically
delivered to him. When the warrant and the
order arrived at Respondent's chambers, the
detectives conducted a search and discovered
the two notes mentioned above crumpled up in
Respondent's wastebasket. The writing on
both notes had been crossed out but was still
legible. Respondent also received the order
to produce a urine sample, but he claimed to
be unable to produce one even though he had
attempted to use a rest room when the
detectives first arrived in his chambers. As
the afternoon wore on, Respondent claimed to
be unable to produce the required sample, and
an extension of the order was obtained. The
issuing judge also directed that Respondent
compress his bladder in an effort to produce
a sample and that the detectives physically
assist him if he were unable to produce one
after a certain amount of time. One of the
detectives subsequently pressed respondent's
abdomen but without result. The detectives
remained until after 7:00 p.m. and eventually
left without a sample.
The ACJC found that respondent had used marijuana in the
company of the informant and the informant's wife on June 26,
1990, and that he supplied the marijuana used on that date. The
ACJC also found that respondent "improperly lent the prestige of
his office to advance the private interests of the Informant"
when he arranged an introduction with a litigant in a matter
before him, for the purpose of obtaining a job for the informant.
The Committee was unable to conclude that respondent possessed or
distributed controlled dangerous substances other than marijuana,
that respondent had falsified his time reports to reflect that he
was working when he was not, or that other court personnel
participated with him in the use of marijuana.
In the attorney-ethics proceedings, the special master
characterized respondent's misconduct as both "deplorable and
unbecoming a judge and an attorney at law." In considering the
appropriate discipline, the special master noted that respondent
had exhibited great remorse over his actions and that he had
suffered great public humiliation. Under all of the
circumstances, including respondent's past and continuing
unblemished history, the special master recommended the
imposition of a public reprimand. In his view, such discipline,
"coupled by the well-known and publicly reported circumstances
which [led] to his removal from the bench will . . . protect the
public interest and maintain confidence in the integrity of our
bar."
The DRB noted that respondent engaged in misconduct on
several occasions -- once on June 26, 1990, while a Superior
Court judge, and many times, years earlier, in 1986, over a two-week period, when respondent's friend lived in respondent's home.
In addition, respondent's misconduct was not limited to mere
personal use of marijuana; he provided the illegal substance to
third persons. Although the DRB acknowledged that respondent did
not financially enrich himself, but rather, as had been noted by
the special master, was "sharing" the substance with friends,
that conduct "technically" constitutes "distribution" under the
Criminal Code and, further, respondent involved third persons in
an illegal activity while he was a member of the bench and bar.
The DRB also noted the finding of the ACJC that, while in
his chambers, respondent met with the informant on one occasion
and spoke with him by telephone on another in order to arrange
for future meetings during which they planned to smoke marijuana.
Therefore, not only did respondent engage in past illegal conduct
and involve third persons in that conduct, but he also planned,
from his chambers, to engage in future illegal activity.
Finally, and most significantly, according to the DRB,
respondent committed the misconduct while he held the position of
Judge of the Superior Court, and therefore was subject to a
higher ethical standard.
In mitigation, however, the Board considered respondent's
cooperation with the disciplinary authorities, his past and
continuing unblemished career, and the indignation and extreme
public and professional humiliation he suffered. In light of
those mitigating circumstances, a four-member majority of the
Board recommended a public reprimand as sufficient discipline for
respondent's transgressions; one member would have imposed a
three-month suspension, while two members would have imposed a
private reprimand.
Determinations made in judicial-removal proceedings are conclusive and binding in subsequent attorney-disciplinary proceedings. In re Yaccarino, 117 N.J. 175, 183 (1989). Because the ACJC findings, which this Court substantially accepted in the removal proceedings, are binding in a subsequent ethics proceeding, the only issue to be determined is the appropriate quantum of discipline for respondent's misconduct. Ibid.; see In re Hasbrouck, __ N.J. __, __ (1995) (noting that when ethics violations are admitted, focus of the disciplinary proceeding is on extent of discipline). Determining the appropriate measure of discipline, however, is extremely fact-sensitive. In re Kinnear, 105 N.J. 391, 395 (1987); In re Litwin, 104 N.J. 362, 366 (1986).
The privilege to practice law is founded on high moral character. In re La Duca, 62 N.J. 133, 140 (1973); In re Pennica, 36 N.J. 401, 433-34 (1962); In re Gavel, 22 N.J. 248, 266 (1956). Further, attorneys who occupy positions of public trust are held to higher ethical standards. See, e.g., In re
Hoerst,
135 N.J. 98 (1994); In re Bock,
128 N.J. 270 (1992); In
re Kotok,
108 N.J. 314 (1987).
Criminal conduct by an attorney is a particularly egregious
form of unethical behavior. In addition to evidencing
professional unfitness and lack of good character, the commission
of a crime demonstrates a fundamental disrespect for the law and,
when criminal conduct is confirmed by an admission or conviction,
it is conclusive evidence of an attorney's guilt in disciplinary
proceedings, R. 1:20-6(b)(1); In re Hasbrouck, supra, __ N.J. at
__; In re Kinnear, supra, 105 N.J. at 395. That principle
applies with equal force with respect to the effect of a
determination or admission of judicial misconduct for which
judicial discipline has been imposed. E.g., In re Yaccarino,
supra, 117 N.J. at 183.
Misconduct by an attorney, whether private or professional
in nature, that evidences a want of the good character and
integrity that are essential for a person to engage in the
practice of law constitutes a basis for discipline. In re
Franklin,
71 N.J. 425, 429 (1976); In re La Duca, supra, 62 N.J.
at 140; In re Gavel, supra, 22 N.J. at 266. The obligation of an
attorney to maintain the high standard of conduct required by a
member of the bar applies even to activities that may not
directly involve the practice of law or affect the attorney's
clients. In re Rutledge,
101 N.J. 493, 498 (1986); In re Huber,
101 N.J. 1, 4 (1985); In re Suchanoff,
93 N.J. 226, 230 (1983);
In re Franklin, supra, 71 N.J. at 429. The Court's central
concern in the administration of attorney discipline is not to
punish the attorney, but, more broadly, to promote public
confidence in the integrity of the bar. In re Kinnear, supra,
105 N.J. at 397; In re Kaufman,
104 N.J. 509, 513 (1986); In re
Kushner, supra, 101 N.J. at 400. Transgressions by attorneys
that bespeak indifference to the law and the legal system destroy
public confidence in the integrity of the bar. Hence, they
warrant correction and discipline, even though they may not
directly implicate the practice of law or hurt a client's
interests.
The DRB observed that while the Court and the Board have had
several occasions to address drug-related offenses in the
attorney disciplinary context, only one of those cases, In re
Echevarria,
119 N.J. 272 (1990), involved the use and possession
of a small amount of marijuana, as opposed to a differently
scheduled drug, such as cocaine. The DRB further commented that
in that case, the Court imposed a public reprimand and although
the DRB had also recommended the imposition of a public
reprimand, it would have recommended the imposition of a private
reprimand if the matter were not aggravated by the fact that the
attorney had, years earlier, received a conditional discharge for
similar conduct.
We do not equate respondent's derelictions in this case with
that presented in Echevarria. Although the drug was marijuana,
respondent's involvement with the drug was not innocuous.
Respondent was guilty of "sharing" or distributing marijuana; he
used the marijuana on more than one occasion; he conspired to
continue the use of marijuana and to involve other persons in
that use; and he had engaged in the possession and use of
marijuana in the past.
We find, therefore, that, in terms of gravity, respondent's
conduct is comparable to those cases in which this Court has
consistently ordered a three-month suspension. See, e.g., In re
Benjamin,
135 N.J. 461 (1994) (three-month suspension for
unlawful possession of 0.26 grams of cocaine and under 50 grams
of marijuana); In re Sheppard,
126 N.J. 210 (1991) (three-month
suspension for possession of under 50 grams of marijuana and for
failure to deliver a controlled dangerous substance (cocaine) to
a law enforcement officer); In re Nixon, supra,
122 N.J. 290
(three-month suspension for possession of less than 50 grams of
marijuana and 126 grams of cocaine).
Of greater import is the fact that respondent, in effect,
committed these drug offenses under the cover of his judicial
position. Respondent's illicit activity occurred within the
court house, thus not only symbolically, but actually and
visually, traducing the cause and image of justice. That conduct
expresses not simply a disrespect for the law but an effrontery
bordering on contempt for the administration of justice. Even
though respondent's conduct did not directly involve the
discharge of judicial duties, it did directly compromise the
judiciary as an institution. The actions of respondent reflect
an attitude that is diametrically antagonistic to the values
inherent in the Canons of Judicial Conduct, and is intolerable in
a judge. That attitude is equally unacceptable in a lawyer.
E.g., In re Kinnear, supra.
We continue to believe that an attorney who breaks the
criminal laws relating to the possession of controlled dangerous
substances thereby commits ethical infractions that demonstrate a
disrespect for law, denigrate the entire profession and destroy
public confidence in the practicing bar. In re Schaffer, __ N.J.
__ (1995). Effective and meaningful discipline is clearly
warranted.
We consider in mitigation respondent's good record. We are
not unmindful of his undoubted painful embarrassment and deep
remorse. However, those genuine personal consequences do not
obviate appropriate discipline. Contrition and mortification
alone cannot repair and restore public confidence in the
profession. Only adequate discipline can accomplish that because
it enables the public to realize that the judiciary will not
tolerate or excuse such conduct by attorneys and will vigilantly
act to rectify and prevent such conduct. That reasoning applies
with similar force to the fact that respondent has been
disciplined as a judge by his removal from judicial office.
Judicial discipline deals directly with the need to preserve the
integrity of the judiciary. It does not, however, deal directly
with a respondent's professional responsibility as an attorney
and it cannot alone renew the public's confidence in the
practicing bar.
This Court has long recognized that there
is a duality of professional responsibility
on the part of lawyers who serve in the
judiciary. Their professional loyalty runs
both to the judicial office in which they
serve and the profession of which they are
members. Indeed, the status of an attorney
as a member of the legal profession is a
condition for the holding of judicial office.
N.J. Const. art. VI, § 6, par. 2 (1947).
Thus, if misconduct affects both the judicial
office and the professional status of a
lawyer, the public interest in both judicial
and professional integrity can be implicated
by the lawyer's conduct in judicial office.
[In re Yaccarino, supra, 117 N.J.
at 179.]
[W]e recognize that an attorney who has
engaged in ethical misconduct while serving
as a judge may be exposed to professional
discipline in his or her capacity as a
lawyer. Judicial discipline for such
misconduct neither obviates nor forecloses
professional discipline.
We thus reaffirm the reasons that have prompted us to
discipline attorneys who have also been subject to judicial
discipline, e.g., In re Bock, supra; In re Yaccarino, supra.
Respondent is suspended from the practice of law for three
months. In addition, respondent is to reimburse the Disciplinary
Oversight Committee for costs, including but not limited to the
cost of producing transcripts.
So ordered.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
D-
111 September Term 1994
IN THE MATTER OF :
STEPHEN A. PEPE, : ORDER
AN ATTORNEY AT LAW :
It is ORDERED that STEPHEN A. PEPE of TUCKERTON, who was
admitted to the bar of this State in 1971, is hereby suspended
from the practice of law for a period of three months, effective
July 24, 1995, and until the further Order of the Court; and it
is further
ORDERED that respondent be restrained and enjoined from
practicing law during the period of his suspension and that he
comply with Rule 1:20-20, which governs suspended attorneys; and
it is further
ORDERED that respondent reimburse the Disciplinary Oversight
Committee for appropriate administrative costs incurred in the
prosecution of this matter.
WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at
Trenton, this 30th day of June, 1995.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-111 SEPTEMBER TERM 1994
Application for
Disposition Suspend
Decided June 30, 1995
Order returnable
Opinion by PER CURIAM