(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
IN THE MATTER OF STEVEN M. SCHAFFER, AN ATTORNEY AT LAW (D-11-94)
Argued January 4, 1995 -- Decided May 12, 1995
PER CURIAM
Steven M. Schaffer, an attorney at law from Fort Lee, New Jersey, was arrested on August 5, 1991, and
charged with the unlawful possession of cocaine and drug paraphernalia, as well as being under the influence
of cocaine. In March of 1992, Schaffer was accepted into the Pre-Trial Intervention Program (PTI). After
Schaffer satisfied the terms and conditions of the PTI program, the complaints against him were dismissed.
Schaffer waived the filing of a formal ethics complaint against him. He admitted that his conduct
constituted a violation of the Rules of Professional Conduct and that it reflected adversely on his fitness to
practice law. The ethics proceedings went before the Disciplinary Review Board (DRB) on stipulated facts.
The DRB noted that Schaffer had been admitted to outpatient treatment for his drug use within twelve
days of his arrest. Between August 18, 1991, and January 1, 1993, Schaffer attended group treatment twice a
week, as well as individual sessions in Regent Hospital's substance abuse treatment program. He also attended
AA meetings during the same period. At the request of the DRB, Schaffer certified that he had maintained a
drug-free state from August 18, 1991, to date.
The Office of Attorney Ethics recommended that Schaffer be suspended from the practice of law for
three months. The DRB concluded that Schaffer should receive a suspended three-month suspension. Among
the mitigating factors found by the DRB were Schaffer's sincere expression of deep regret for his actions, his
prompt and extensive remedial action after his arrest, and his ability to turn around his life in the three years
since his arrest.
HELD: In the future, an addicted attorney who is guilty of a possessory drug offense may seek to serve an
appropriate period of suspension on an accelerated basis while undertaking rehabilitation.
1. Offenses attributable to drug addiction may warrant strong disciplinary measures. Drug addiction that gives
rise to criminal and ethics offenses should not be considered mitigation. (pp. 7-8)
2. The Court adheres to the view that a "suspended suspension" is an exceptional form of discipline. It is
appropriate only under very specific circumstances that are not present in matters that are based on the
possession and use of illegal drugs. (pp. 9-10)
3. An attorney who breaks the criminal laws relating to the possession of drugs commits ethical infractions that
demonstrate a disrespect for the law, denigrate the entire legal profession, and destroy public confidence in the
practicing bar. (p. 10)
4. The Court notes, however, that there is a special hardship that befalls an attorney who is suspended several
years after the occurrence of the criminal offenses and after the attorney has confronted an addiction and
achieved recovery. A suspension from the practice of law after rehabilitation has been achieved may itself
jeopardize the recovery, undermine rehabilitation, and incite relapse. (p. 11)
5. An attorney whose drug addiction has contributed to his or her commission of a possessory drug offense, but
who has conscientiously, promptly, and successfully achieved rehabilitation, can be fairly accommodated by a
process that permits the service of an appropriate suspension on an accelerated basis. To the extent possible,
the suspension would coincide with any rehabilitation and recovery efforts undertaken by the attorney. This form
of discipline is not authorized for drug cases that involve egregious and aggravating circumstances. (pp. 11-12)
6. Attorneys who otherwise qualify for an accelerated suspension must initiate the process by applying to the
Office of Attorney Ethics for an immediate suspension pending disposition of a Motion for Final Discipline by
Consent. The processing of such cases before the DRB and the Court will be expedited. (pp. 12-13)
7. Attorney Schaffer cannot obtain the benefit of the new procedures adopted by the Court in this opinion. As
a matter of fairness and in light of the specific circumstances of this case, the Court has decided to impose a
suspended suspension of three months. (p. 13)
So Ordered.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN,
and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
11 September Term 1994
IN THE MATTER OF
STEVEN M. SCHAFFER,
An Attorney at Law.
Argued January 4, 1995 -- Decided May 12, 1995
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
John McGill, III, Deputy Ethics Counsel,
argued the cause on behalf of Office of
Attorney Ethics.
Steven M. Schaffer argued the cause pro se.
PER CURIAM.
In this attorney-disciplinary case, respondent, Steven M. Schaffer, was arrested and charged for the unlawful possession of cocaine, the unlawful possession of drug paraphernalia, and being under the influence of cocaine. He ultimately admitted that he had committed those offenses. He also admitted that his conduct constitutes a violation of the Rules of Professional Conduct, specifically RPC 8.4(b), in that his knowing and intentional possession and use of illegal drugs was a criminal act that reflects adversely on his fitness to practice law. Respondent waived the filing of a formal ethics complaint and waived a
formal hearing before the District Ethics Committee. He agreed
that the matter should proceed directly before the Disciplinary
Review Board (Board or DRB) for its review, for the sole purpose
of determining the extent of final discipline to be imposed. The
matter was presented to the DRB on a stipulation between
respondent and the Office of Attorney Ethics (OAE).
Because the ethics violations are admitted, the focus of this disciplinary proceeding is on the extent of discipline. In re Goldberg, 105 N.J. 278, 280 (1987); In re Kaufman, 104 N.J. 509, 510 (1986); In re Kushner, 101 N.J. 397, 400 (1986). 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).
Respondent was admitted to the New Jersey Bar in 1986. He had an office in Fort Lee, Bergen County, New Jersey. The DRB recites the details of respondent's offenses according to the stipulation, viz:
On August 5, 1991, at approximately 11:50 p.m., Fort Lee police officers observed an automobile being operated at a speed lower than that of the surrounding traffic. The automobile was operated by respondent. After disregarding a stop sign and making a right turn without signaling, the automobile came to a stop. Respondent exited the automobile and entered the office of the Toll Gate Motel. One of the police officers parked his car next to respondent's and observed him in the motel office. Respondent did not register at the motel. When he came out, the
police officers stopped him and identified
themselves.
It was immediately apparent to the police
officers that respondent was under the
influence of a controlled dangerous substance
(CDS). Respondent was advised that he was
being placed under arrest for being
unlawfully under the influence of a CDS and
was also advised of his rights. Respondent
then began to back up, at which time the
officers grabbed his shirt to prevent him
from fleeing. At this juncture, two small
plastic vials fell to the floor. One of the
police officers seized the two items. The
officer suspected them to be CDS. Respondent
told one of the officers to wait a minute,
placed his right hand in the pocket of his
pants and retrieved a glass crack (cocaine)
pipe, which he handed to one of the officers.
Respondent then stated to the police officers
that, if they arrested him, they would be
ruining his life. He assured them that, if
they let him go, in the morning he would
admit himself into an in-patient program for
his drug dependency. He further stated to
the officers that he was an attorney and
asked that the officers release him from
custody. His requests were denied. At that
point, respondent admitted that he had been
using crack cocaine all night and had left
his apartment to prevent a problem with his
mother. He further stated that he was
beginning to feel the full effects of the
cocaine. His face became pale and he
requested that he be permitted to sit down
because he feared that he would pass out.
The police Command Center was called and
medical assistance was requested. Respondent
was transported to Englewood Hospital for
observation and for medical treatment for his
admitted abuse of the CDS crack cocaine.
While at Englewood Hospital, one of the police officers located a plastic transparent vial on the hospital bed on which respondent was lying. The vial contained a whitish chalk substance, which the officer suspected to be CDS. The officer had observed the item lying on top of the bed sheets, while in the process of escorting respondent to the bathroom. During the time that respondent
was observed on the hospital bed, the officer
saw him go into his pants several times, near
his groin area. The officer also took a
urine sample from respondent at the hospital.
Respondent was charged with unlawful possession of cocaine,
in violation of N.J.S.A. 2C:35-10a(1), a third degree crime. He
was also charged with unlawful possession of drug paraphernalia,
in violation of N.J.S.A. 2C:36-2, and with being unlawfully under
the influence of a controlled dangerous substance, in violation
of N.J.S.A. 2C:35-10b, both disorderly persons offenses. In
addition, respondent was charged with the motor vehicle offense
of possession of a CDS in a motor vehicle, in violation of
N.J.S.A. 39:4-49.1.
On February 20, 1992, respondent appeared before the
municipal court and applied for a conditional discharge under
N.J.S.A. 2C:36A-1. The municipal court placed respondent on
probation for a period of six months. On March 20, 1992,
respondent was accepted into the Pre-Trial Intervention Program
(PTI). On October 6, 1992, after respondent satisfied the terms
and conditions of the PTI program, the complaints against
respondent were dismissed, pursuant to N.J.S.A. 2C:36A-1. As
noted, respondent admitted the commission of the offenses,
seeking only to preserve his right to be heard with respect to
the extent of discipline.
On the issue of discipline respondent submitted evidence
relating to his rehabilitation. The DRB noted the Certification
and Medical Report of Arthur Greenberg, a certified psychiatric
social worker and a clinician and supervisor at Metropolitan
Medical Group, P.C., and the Director of Treatment for Adult and
Adolescent Dual Diagnosis Units at Regent Hospital, in New York.
According to Mr. Greenberg's certification, respondent was
admitted to the Metropolitan Medical Group Outpatient Treatment
Center at Regent Hospital on August 18, 1991, twelve days after
his arrest. Mr. Greenberg stated:
Mr. Schaffer understood that his conduct,
substance abuse, and arrest, had brought him
to a point where he was about to lose all
that he had worked for his entire life,
including but not limited to, his license to
practice law and career. Mr. Schaffer
expressed clearly that he desired to engage
in a program for treatment of alcohol and
substance abuse to take the steps and action
necessary to save his life and career.
The DRB found that from August 18, 1991 through January 1,
1993, respondent attended regularly scheduled group treatment
twice a week, as well as an individual session in the hospital's
substance abuse treatment program. Respondent also provided
urine specimens two to three times a week as part of the
treatment program. Further, he tested free from alcohol and all
mood-altering substance during the treatment program. In
addition, the urinalysis test results from the hospital's
treatment program were provided to the supervisor of the Bergen
County PTI program before the entry of the March 20, 1992 order
of dismissal, as well as on April 27, 1992 and August 6, 1992.
Respondent, according to Mr. Greenberg's certification, also
attended regular Alcoholics Anonymous ("AA") meetings from August
18, 1991 through January 1, 1993. Respondent, at the request of
the DRB, submitted a certification stating that he has been drug-free from August 18, 1991 to date.
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). Indeed, this requirement inheres in our paramount concern in the administration of attorney discipline for the maintenance of public confidence in the integrity of the bar. In re Kaufman, supra, 104 N.J. at 513. A criminal conviction evidences a fundamental disrespect for law and is conclusive evidence of an attorney's guilt in disciplinary proceedings, R. 1:20-6(b)(1); In re Kinnear, supra, 105 N.J. at 395.
Discipline for ethics transgressions is not obviated or lessened because an attorney's conduct did not involve the practice of law or arise from a lawyer/client relationship. Offenses that evidence ethical shortcomings, though not committed in the attorney's professional capacity, may, nevertheless, warrant discipline. In re Hasbrouck, __ N.J. __ (1995) (slip op. at 5) (citing In re Suchanoff, 93 N.J. 226, 230 (1983); In re Kinnear, supra, 105 N.J. at 395). Misconduct, 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 his or her
clients. In re Suchanoff, supra, 93 N.J. at 230; In re Rutledge,
101 N.J. 493, 498 (1986); In re Huber,
101 N.J. 1, 4 (1985); 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 Kushner, supra, 101 N.J. at 400.
We have determined that offenses attributable to drug
addiction may warrant strong disciplinary measures, see In re
Hasbrouck, supra, __ N.J. __ (imposing one year suspension on
attorney for pleading guilty to criminal charges involving false
prescriptions for CDS); In re Kaufman, supra,
104 N.J. 509
(imposing six month suspension on attorney for pleading guilty to
two criminal indictments for possession of controlled dangerous
substances); In re Orlando,
104 N.J. 344 (1986) (suspending
attorney who pleaded guilty to one count indictment for
possession of cocaine until such time as could demonstrate
fitness). We continue to hold that drug addiction that gives
rise to criminal and ethics offenses should not be considered
mitigation. In re Goldberg, supra,
105 N.J. 278 (disbarring
attorney for participation in criminal narcotics conspiracy
notwithstanding drug addiction); In re Romano,
104 N.J. 306
(1986) (disbarring attorney for misappropriating client's funds
to support drug habit). In In re Zauber, the Court considered
whether drug addiction can serve as a mitigating factor in a
disciplinary case. We held that,
[a]lthough mitigating factors are relevant to
the severity of discipline, . . . drug
addiction is generally not such a factor. . .
Moreover, drug addiction, whether to legal or
illegal drugs, may not mitigate serious
ethical infractions such as misappropriation
or crimes involving dishonesty, fraud, deceit
or misrepresentation.
[
122 N.J. 87, 94 (1991) (citations
omitted).]
The OAE requested that respondent be suspended for a period
of three months, relying on In re Nixon,
122 N.J. 290 (1991).
However, the DRB was "convinced that to impose a three-month
suspension would serve no other purpose but to punish
respondent." Accordingly, a majority of the Board recommended
that respondent receive a suspended three-month suspension.
The reasons that persuaded a majority of the Board to impose
a suspended suspension were:
Numerous compelling mitigating
circumstances have persuaded the Board that
respondent should not be actively suspended
for three months. At the Board hearing,
respondent sincerely expressed his deep
regret for the shame he has brought on his
professional colleagues and his family, for
which he sincerely apologized. Respondent
explained that, at the time of his
misconduct, he did not recognize how ill he
was and did not understand the seriousness of
his offenses. Respondent pointed to the
prompt and extensive remedial action that he
undertook immediately after his arrest,
including participation in a drug and alcohol
rehabilitation program for one and one-half
years, and regular attendance at AA meetings.
To this date, respondent participates in AA
meetings three or four times a week.
Moreover, respondent's conduct occurred three
years ago and, according to him, has
completely changed his life. Respondent
contended that, without this change, he would
probably have died. He also informed the
Board that his work and productivity have
increased greatly since his recovery and that
his career as an attorney is his whole life.
The DRB believed that a suspended sentence
would accomplish the purpose of continued
notice to the bar that this type of conduct
will be met with a suspension in all but the
most compelling cases and, at the same time,
give recognition to respondent's heroic
efforts to rehabilitate himself. It would
also permit him to continue to serve the
profession without unnecessary disruption.
We disagree with the approach taken by the DRB in this case.
This Court has authorized the suspension of a disciplinary
suspension of an attorney in only one situation. That is where
the infractions of the attorney themselves did not warrant
discipline more severe than a suspension; the infractions were
committed when the attorney was relatively young and
inexperienced, and the misconduct was attributable in large
measure to that inexperience and lack of supervision; and, most
importantly, a very extended period of time had elapsed between
the commission of the infractions and the imposition of
discipline, and, during that time, the attorney had gained in
experience and knowledge and had engaged in the practice of law
in good repute and without any ethical blemish or transgression.
E.g., In re Kotok,
108 N.J. 314 (1987); see In re Stier,
108 N.J. 455 (1987). We adhere to the view that a suspended suspension
constitutes an exceptional form of discipline and is not
appropriate in any other kind of disciplinary case.
We do not believe a case in which an attorney has been
convicted of a possessory crime relating to controlled dangerous
substances merits a suspended suspension even when, prior to the
imposition of discipline, the underlying addiction has been
zealously addressed by the attorney and rehabilitation has been
accomplished. This Court has consistently ordered a three-month
suspension for violations similar to those committed by this
respondent. 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); and
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).
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. Those offenses cannot
be countenanced. We thus reaffirm the reasons that have prompted
us to impose suspensions on attorneys for violating our laws
relating to controlled dangerous substances.
We are not, however, unmindful of the special hardship that
befalls an attorney who is suspended from the practice of law
several years after the occurrence of the criminal and ethics
offenses, and after he or she has confronted the underlying
addiction that gave rise to the offenses, and has achieved
recovery. However, the special hardship in imposing a suspension
on such an attorney after successful rehabilitation is not that
the suspension from the practice of law is disproportionate to
the offense. It is not. E.g. In re Nixon, supra. Rather, it is
the suspension from the practice of law that is imposed after
rehabilitation has been achieved that can engender special
hardship because it may itself jeopardize that recovery,
undermine rehabilitation and incite relapse.
That concern, therefore, prompts us to fashion a
disciplinary measure that may appropriately and fairly
accommodate any attorney whose drug addiction has contributed to
his or her commission of a possessory CDS offense, but who has
conscientiously, promptly and successfully achieved
rehabilitation, and has recognized the continuing need to remain
drug-free and maintain sobriety. We, accordingly, determine that
a suspension for a possessory CDS offense remains a proper
measure of discipline but that, if at all possible, it should be
imposed immediately following the commission of the offense so
that it may coincide with any rehabilitation program and recovery
efforts that are undertaken by the attorney following the
commission of the underlying offense. In that way, the public
confidence will be vindicated by the exaction of strict
discipline commensurate with the commission of a criminal
offense, and, the attorney will not be confronted by a delayed
suspension that may serve to undermine the rehabilitation that he
or she has achieved. We, therefore, now authorize a form of
discipline -- an accelerated suspension -- for this class of
cases. We do not authorize this form of discipline in cases
involving controlled dangerous substances in which there are
egregious and aggravating circumstances. E.g., In re Hasbrouck,
supra.
This form of discipline can be imposed only on the
initiative and with the agreement of the attorney charged with
CDS possessory offenses, who determines to admit or plead guilty
to the commission of those offenses and to seek a prompt
suspension to coincide with entry into a rehabilitation program.
The attorney shall apply to the Office of Attorney Ethics for a
Motion for Discipline by Consent under Rule 1:20-10(b) and for an
immediate suspension pending the disposition of the Motion for
Final Discipline by Consent. The consent to be suspended should
be for a period of time that will not exceed the amount of time
the attorney would be suspended were the matter processed in the
normal course. Thus, if possession of cocaine usually warrants a
six-month suspension, the attorney may consent to an immediate
suspension for that period of time. In those cases, the standard
appellate process shall be accelerated so that the DRB may review
the Motion for Discipline by Consent and issue a decision to the
Court within a period to coincide with the period of suspension.
If the DRB denies the Motion for Final Discipline by Consent the
respondent may move to vacate the temporary suspension. If final
discipline is a longer period of suspension respondent shall be
credited with the suspension already served.
In this case, obviously respondent cannot obtain the
discipline we now propose. He was arrested in 1991 when he
committed the CDS offenses. He promptly undertook to achieve
rehabilitation, which he has now accomplished and he has
successfully rebuilt his law practice. Those circumstances, we
repeat would not, in this kind of case, obviate the imposition of
an appropriate suspension for the underlying CDS offenses if the
attorney has not admitted the commission of the offenses,
undertaken drug rehabilitation and requested an accelerated
suspension. However, respondent could not have anticipated the
feasibility of obtaining, and never had a realistic opportunity
to seek, an early suspension, which we now authorize. Because
this case serves as the vehicle for our announcement of a rule
that would otherwise have benefitted respondent, fairness
dictates that we refrain from imposing a suspension on him at
this time. Accordingly, but only for the reasons expressed
herein, we adopt the recommendation of the DRB and impose on
respondent a three-month suspension from the practice of law and
direct that that suspension be suspended.
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 opinion.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
Garibaldi, Stein, and Coleman join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
11 September Term 1994
IN THE MATTER OF :
STEVEN M. SCHAFFER, : ORDER
AN ATTORNEY AT LAW :
It is ORDERED that STEVEN M. SCHAFFER of FORT LEE, who was
admitted to the bar of this State in 1986, be suspended from the
practice of law for a period of three months; and it is further
ORDERED that the suspension be suspended.
WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at
Trenton, this 12th day of May, 1995.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-11 SEPTEMBER TERM 1994
Application for
Disposition three-month suspension (suspended)
Decided May 12, 1995
Order returnable
Opinion by PER CURIAM