(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 October 21, 1997 -- Decided December 19, 1997
PER CURIAM
Victor Musto (respondent) is an attorney who was admitted to the bar in l983. He was the subject of a
motion for final discipline filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB)
pursuant to R. 1:20-13(c). The motion was based on respondent's guilty pleas in federal and state courts to conspiracy
to distribute cocaine; possession of methyl ecgonine; conspiracy to possess heroin and cocaine; and possession of heroin
and cocaine. The DRB concurred in the recommendation of the OAE that respondent be disbarred for his violation
of RPC 8.4(b) by virtue of his convictions. That rule states that it is professional misconduct for a lawyer to “commit
a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.”
Musto used drugs sporadically following his admission to the bar until l99l, when he began using heroin and
cocaine heavily. He attributed his drug use to stress related to work, marital problems, his son's cerebral palsy, and
his father's illness. At that time, Musto was practicing in Asbury Park. His partners were unaware of his drug use
and his firm later reported that nothing in his addictions caused any problems or difficulty to any clients. Ultimately,
Musto admitted his addiction to his partners and entered a rehabilitation facility, beginning a series of periods of
rehabilitation and relapse.
In l993, when respondent repeatedly missed deadlines and court appearances, his law firm accepted his
resignation. Later that year, the FBI had arranged for Musto's friend (CW) to make a drug buy from him. Ultimately,
after the passage of some time, Musto agreed to act as CW's contact and purchased cocaine for CW on three occasions
during the summer months of l993. Those purchases totaled $5,800, of which Musto kept approximately $200 to buy
heroin for himself. Following his arrest, Musto agreed to act as an informant for political corruption, fraud, and drug
operations in Monmouth County.
Thereafter, on two occasions in October 1993, Musto was arrested by local police and charged with possession
of cocaine and heroin. That same month, Musto entered a rehabilitation facility again and was discharged the following
month.
Following his arrests on the state possession charges, federal authorities indicted Musto for conspiracy to
distribute cocaine and for distribution of cocaine, all arising out of the transactions with CW. He pled guilty to the
conspiracy count. As part of the plea agreement, Musto again entered a rehabilitation facility where he remained from
February to May l994. He again relapsed in June l994 and re-entered the rehabilitation facility. Thereafter, in April
l995, a federal court sentenced Musto to a six-month custodial term and three years of supervised release. Because he
had cooperated with the FBI in its Monmouth County investigations, the court significantly reduced Musto's sentence
under the Federal Sentencing Guidelines.
Shortly after sentencing, Musto again relapsed. On April l9, l995, he was again arrested by local police when
he was observed purchasing drugs. When the police attempted to pull his vehicle over, Musto attempted to evade them
and instructed his passenger to throw the drugs (heroin) out the window. Later that month, he was indicted for
possession of cocaine and heroin, for eluding an officer, for tampering with physical evidence, and for hindering
apprehension or prosecution. That same day, he pled guilty to possession of methyl ecgonine, conspiracy to possess
heroin and cocaine, and possession of cocaine and heroin. The remaining charges were dismissed. The court sentenced
him to three concurrent four-year terms of imprisonment.
Musto served his state and federal sentences from May l995 to September 1996, during which time he
completed an intensive drug program and attended Alcoholics Anonymous (AA) meetings, as well as Narcotics
Anonymous (NA) meetings. He is currently on federal probation and will remain on that status until October l998.
He continues to attend both group and individual counseling several times weekly and has random urine drug screening
twice weekly. The results of his tests have been negative. He also attends AA meetings three times a week.
The Supreme Court ordered Musto to show cause why he should not be disbarred or otherwise disciplined.
HELD: Given the mitigating circumstances involved in this case, including Musto's efforts at rehabilitation, a three-year retroactive suspension, not disbarment, is the appropriate discipline for respondent on the federal conspiracy
charge.
1. A criminal conviction is conclusive evidence of guilt in a disciplinary proceeding and the sole issue is the extent of
discipline to be imposed. (p. 8)
2. 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. (p. 8)
3. Offenses attributable to drug addiction warrant strong disciplinary measures. (pp. 8-9)
4. Although a three-month suspension is a generally appropriate measure of discipline for possessory crimes related
to controlled dangerous substances, some offenses attributable to drug addiction may warrant stronger disciplinary
measures. (pp. 10-12)
5. Although disbarment of an attorney convicted of distribution of controlled dangerous substances would be
appropriate if the distribution were done for gain or profit, disbarment does not automatically result from a distribution
conviction. (pp. 13-15)
6. Unlike other attorneys who have been disbarred for drug distribution, Musto's misconduct did not relate to the
practice of law, nor did he use his professional status or skills as an attorney to assist in his criminal acts. (pp. 15-16)
7. Musto's misconduct was significantly different from the egregious conduct of other attorneys who have participated
in extensive criminal narcotics conspiracies in that he did not intend his sales to CW to result in public distribution.
Musto's sales were profit-related only to the extent that he used the $200 to feed his own heroin addiction. (pp. 16-17)
8. Although the use of illegal drugs by an attorney is unequivocally condemned, efforts at rehabilitation will be
considered in deciding the appropriate discipline. Had Musto's drug dependency led to theft of client funds or genuine
involvement in organized criminal distribution of drugs, he would be disbarred. (pp. 17-19)
10. To preserve the public's confidence in the legal profession, stringent conditions will be placed on Musto's return
to practice, including continued counseling and testing for as long as is necessary. In addition, Musto's readmission
will be contingent on his working in a supervised capacity until otherwise ordered by the DRB. (p. 20)
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
29 September Term 1997
IN THE MATTER OF
VICTOR M. MUSTO,
An Attorney at Law.
Argued October 21, 1997 -- Decided December 19, 1997
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Richard J. Engelhardt, Assistant Ethics
Counsel, argued the cause on behalf of the
Office of Attorney Ethics.
William B. Gallagher, Jr., argued the cause
for respondent (Klitzman & Gallagher,
attorneys; Victor M. Musto, pro se on the
brief).
PER CURIAM
This attorney disciplinary proceeding arises from a motion
for final discipline, based upon a criminal conviction, filed by
the Office of Attorney Ethics (OAE) before the Disciplinary
Review Board (DRB) pursuant to Rule 1:20-13(c). The DRB
concurred in the OAE recommendation that Victor M. Musto
(respondent) be disbarred from the practice of law. The motion
was based on respondent's guilty pleas in federal and state
courts to conspiracy to distribute cocaine; possession of methyl
ecgonine, a metabolite of cocaine; conspiracy to possess heroin
and cocaine; and possession of heroin and cocaine. RPC 8.4(b)
states that it is professional misconduct for a lawyer to “commit
a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects.” In
ethical proceedings, the conviction of a criminal offense
conclusively establishes guilt of the offense charged. In re
Lunetta,
118 N.J. 443, 445 (1989) (citing R. 1:20-6(b)(1)). In
assessing the measure of discipline to be imposed, we may
consider background facts and circumstances. In re Spina,
121 N.J. 378, 389 (1990). We draw those background facts and
circumstances from presentence reports, plea agreements, and
other reliable documentation surrounding the conviction.
From the record in this case, the following background facts emerge. Respondent was admitted to the bar in 1983. He used drugs sporadically until 1991, when he began using heroin and cocaine heavily. He attributes his drug use to stress related to work, marital problems, his son's cerebral palsy, and his father's sickness.
At the time, respondent was practicing law in Asbury Park, New Jersey. His law partners were reportedly unaware of his drug use. Ultimately, respondent admitted his addiction to his employer and entered Clear Brook Manor, in Pennsylvania, for rehabilitation. Although he completed the program, he did not participate in a recommended follow-up plan and relapsed in 1992.
In March 1993, when respondent increasingly missed deadlines and
court appearances, his law firm accepted his resignation. Yet,
despite his drug use, respondent was never the subject of any
ethics complaints. His former law firm reported that "nothing in
his addictions and his self infliction of harm [] caused any
problems or difficulty to any clients."
In 1993, the FBI arranged for respondent's friend (whom we
refer to as CW, the cooperating witness) to make a drug buy from
respondent. Allegedly, CW became an FBI informant after having
been arrested trying to import cocaine into the United States.
The DRB report recites that local law enforcement agents told the
FBI that respondent was selling cocaine and using the profits to
purchase heroin. However, respondent states that CW was the
source of any information concerning him. He claims that CW
untruthfully told the FBI that respondent was selling cocaine
because she had promised, as part of her arrangement, to produce
evidence of corruption in New Jersey among public officials and
learned professionals. Respondent contends that he was the only
person whom CW implicated.
Pursuant to plan, CW began calling respondent regularly and
stopping by his home. CW gained respondent's trust because CW
and respondent had previously used drugs together. CW told
respondent that she no longer had drug connections in New Jersey
and needed his help to get cocaine. Although he purchased and
used drugs for his own consumption, respondent was reluctant to
provide CW with drugs. As she became more insistent and his own
heroin addiction worsened, he agreed to act as her contact.
CW furnished the cash, and respondent purchased the
following amounts of cocaine for her on three occasions: one
ounce on June 29, 1993, four ounces on August 3, 1993, and two
ounces on August 12, 1993. Respondent's three purchases for CW
totalled $5,800. Respondent kept approximately $200 of the
monies furnished by CW to buy heroin for himself. At the plea
hearing for the federal charge, respondent gave the following
factual basis for his plea of conspiracy to sell cocaine:
Q. Now, Mr. Musto, did you agree with FNU -
I'm sure that means first name unknown -
Medina and others to distribute up to 7
ounces of cocaine between June 29, 1993 and
August 12, 1993 in Asbury Park, New Jersey
and elsewhere?
A. Yes.
Q. Did you agree to distribute cocaine
knowingly and intentionally?
A. Yes.
Q. Did you agree to distribute cocaine for
money?
A. . . . Originally I was hoping to make
some money on it and I think in my statement
eventually to the FBI it was very little
money involved, but the idea was that I was
going to make some money.
Q. That's what I mean, were you engaged in
this activity with the intention at the time
to try to profit from it?
A. Yes, I was.
The FBI conducted a surveillance of each of these transactions, recorded the conversations, and furnished the marked money used by CW to buy the cocaine. On August 12, 1993, the FBI seized respondent. He was questioned for five hours. He admitted selling cocaine. The FBI also asked him to act as an informant for political corruption, fraud, and drug operations in
Monmouth County.
Respondent relapsed again. On October 22, 1993, local
police found trace elements of cocaine in the pocket of
respondent's jacket while searching patrons at an Asbury Park
tavern incident to a search warrant. Respondent was arrested and
released.
On October 25, 1993, local police stopped and arrested
respondent while he was driving his car with two passengers. The
two passengers had purchased and were in possession of heroin and
cocaine that respondent intended to use. On October 27, 1993,
respondent entered the Jersey Shore Addiction Service for
rehabilitation. He was discharged on November 27, 1993.
After respondent's arrests on the state charges, federal
authorities indicted respondent on January 6, 1994. The four-count indictment charged him with one count of conspiracy to
distribute cocaine, in violation of
21 U.S.C.A.
§846, and three
counts of distribution of cocaine, in violation of
21 U.S.C.A.
§841(a)(1). He pled guilty to the one count of conspiracy.
On February 14, 1994, state authorities indicted respondent
for possession of methyl ecgonine, in violation of N.J.S.A.
2C:35-10a(1), for the October 22, 1993 tavern incident. On March
21, 1994, a Monmouth County Grand Jury indicted respondent for
conspiracy to possess heroin and cocaine, in violation of
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10, and possession of heroin
and cocaine, in violation of N.J.S.A. 2C:35-10a(1), for the
October 25, 1993 incident.
As part of pre-trial services on the federal indictment,
respondent entered Discovery House, a substance abuse facility in
Marlboro, New Jersey, for ninety days from February to May 1994.
Upon discharge, he entered aftercare with Prevention Specialists.
When respondent relapsed in June 1994, he re-entered Discovery
House for two weeks.
On September 23, 1994, pursuant to a plea agreement,
respondent pled guilty to the federal charge of conspiracy to
distribute cocaine. On April 7, 1995, a federal court sentenced
respondent to a six-month custodial term and three-years of
supervised release. Because respondent had cooperated with the
FBI in its Monmouth County investigations, the federal court
significantly reduced respondent's sentence under the Federal
Sentencing Guidelines.See footnote 1
Shortly after sentencing, respondent relapsed again. On
April 19, 1995, local police observed respondent purchasing
drugs. As respondent drove away with another man, the police
attempted to pull him over, and respondent attempted to evade the
police. The passenger threw the drugs (heroin) out of the window
at respondent's request.
On April 25, 1995, respondent was indicted for possession of
heroin and cocaine, eluding an officer, tampering with physical
evidence, and hindering apprehension or prosecution.
The same day, pursuant to a plea agreement, respondent pled
guilty to possession of methyl ecgonine, in violation of N.J.S.A.
2C:35-10a(1); conspiracy to possess heroin and cocaine, in
violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10; and
possession of heroin and cocaine, in violation of N.J.S.A. 2C:35-10a(1). The remaining charges were dismissed. On April 28,
1995, the court sentenced respondent to three concurrent four-year terms of imprisonment and ordered him to pay other penalties
and fees.
Respondent served his federal sentence from May 1995 to
October 27, 1995 during which time he completed an intensive drug
program and attended Alcoholics Anonymous (AA) meetings.
Respondent served his state sentence from October 27, 1995 until
September 11, 1996. He attended both AA and Narcotics Anonymous
(NA) meetings during that time.
Respondent is currently on federal probation and will remain
on that status until October 1998. Respondent has been attending
both group and individual counseling three times weekly with
Prevention Specialists. Likewise, respondent has random urine
drug screening twice weekly. The results of all of respondent's
tests have been negative. He also has an AA sponsor and attends
AA meetings at least three times a week.
Respondent did not notify OAE of the charges against him, as
required by Rule 1:20-13(a)(1). Respondent's arrest was
discovered through a newspaper article. On June 15, 1995,
respondent was temporarily suspended pursuant to Rule 1:20-13(b).
In re Musto,
140 N.J. 520 (1995). The suspension remains in
effect.
A criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-13(c)(1); In re Magid, 139 N.J. 449, 451 (1995); In re Principato, 139 N.J. 456, 460 (1995). Respondent's federal conviction for conspiracy to distribute cocaine and state convictions for conspiracy to possess heroin and cocaine, possession of methyl ecgonine, and possession of heroin and cocaine, therefore, establish his violation of RPC 8.4(b). Pursuant to RPC 8.4(b), it is professional misconduct for an attorney to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer." Hence, the sole issue is the extent of discipline to be imposed. R. 1:20-13(c)(2); Magid, supra, 139 N.J. at 451-52; Principato, supra, 139 N.J. at 460; Lunetta, supra, 118 N.J. at 445.
As we have indicated previously, "[i]n determining appropriate discipline, we consider the interests of the public, the bar, and the respondent. The primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar." Principato, supra, 139 N.J. at 460 (citations omitted). Fashioning the appropriate penalty
involves a consideration of many factors, including the "nature
and severity of the crime, whether the crime is related to the
practice of law, and any mitigating factors such as respondent's
reputation, his prior trustworthy conduct, and general good
conduct." Lunetta, supra, 118 N.J. at 445-46.
We will not excuse an ethics transgression or lessen the
degree of punishment because an attorney's conduct did not
involve the practice of law or arise from a client relationship.
In re Schaffer,
140 N.J. 148, 156 (1995). Offenses that evidence
ethical shortcomings, although not committed in the attorney's
professional capacity, may, nevertheless, warrant discipline. In
re Hasbrouck,
140 N.J. 162, 167 (1995). 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. Schaffer, supra, 140 N.J. at 156 (citing In re
Suchanoff,
93 N.J. 226, 230 (1983); In re Rutledge,
101 N.J. 493,
498 (1986); In re Huber,
101 N.J. 1, 4 (1985); In re Franklin,
71 N.J. 425, 429 (1976)).
An attorney who breaks criminal laws relating to controlled
dangerous substances commits ethical infractions that demonstrate
a disrespect for the law, denigrate the entire profession, and
destroy public confidence in the practicing bar. Id. at 159. We
have determined that offenses attributable to drug addiction
warrant strong disciplinary measures.
A three-month suspension is a generally appropriate measure of discipline for possessory crimes related to controlled dangerous substances (CDS). See id. at 161 (ordering a three-month suspension for unlawful possession of a CDS, unlawful possession of drug paraphernalia, being unlawfully under the influence of a CDS, and possession of a CDS in a motor vehicle); In re Benjamin, 135 N.J. 461, 462 (1994) (ordering a three-month suspension for unlawful possession of cocaine and marijuana); In re Karwell, 131 N.J. 396, 399 (1993) (ordering a three-month suspension for possession of 0.08 grams of marijuana, 0.13 grams of cocaine, and drug paraphernalia); In re Sheppard, 126 N.J. 210, 211 (1991) (ordering a three-month suspension for possession of under 50 grams of marijuana and for failure to deliver a CDS (cocaine) to a law enforcement officer); In re Nixon 122 N.J. 290, 290 (1991) (ordering a three-month suspension for possession of marijuana and cocaine).
Some offenses attributable to drug addiction may warrant stronger disciplinary measures. See In re Stanton, 110 N.J. 356, 357, 360 (1988) (ordering a six-month suspension for possession of cocaine where attorney had acknowledged ten years of drug abuse); In re Pleva, 106 N.J. 637, 647 (1987) (ordering a six-month suspension of attorney for pleading guilty to possession of nine and one-half grams of cocaine, eleven grams of hashish, and fifty-two grams of marijuana where attorney was regular drug user and had been arrested previously; three-month sentence warranted
for guilty plea to charge of giving false information about drug
use when completing certification required before purchasing
firearm); In re Kaufman,
104 N.J. 509, 514 (1986) (ordering a
six-month suspension of attorney for pleading guilty to two
separate criminal indictments for possession of cocaine and
methaqualude where attorney had prior drug-related incident and a
long history of drug abuse); In re Orlando,
104 N.J. 344, 352
(1986) (suspending attorney who pled guilty to one count
indictment for possession of cocaine until such time as could
demonstrate fitness where attorney was seeking psychological help
for depression).
The Court has imposed longer sentences in drug-related
offenses that also involved dishonest, fraudulent, and deceptive
conduct. Hasbrouck, supra, 140 N.J. at 172 (imposing one-year
suspension on attorney for pleading guilty to criminal charges
where the attorney was forging false prescriptions for darvocet
and vicodin for seven years); In re McCarthy,
119 N.J. 437 (1990)
(imposing suspension on attorney convicted of distribution of a
CDS and obtaining a CDS by misrepresentation, fraud, forgery,
deception, or subterfuge until attorney could demonstrate
fitness). A longer sentence is warranted under those
circumstances because dishonest conduct particularly "`impugns
the integrity of the legal system' and destroys 'public trust and
confidence' in the law and the legal system." Hasbrouck, supra,
140 N.J. at 168 (citations omitted).
Respondent's state convictions for possession of cocaine and
heroin, conspiracy to possess heroin and cocaine, and possession
of methyl ecgonine establish that he engaged in criminal acts
that reflected adversely on his fitness to practice law, in
violation of RPC 8.4(b). Because suspension is appropriate for
possessory crimes, standing alone, these convictions would
warrant a substantial period of suspension.See footnote 2 See Kaufman,
supra, 104 N.J. at 513 ("It is that fact - two offenses in four
months - that most strongly influences [the] conclusion that a
[six-month] period of suspension is warranted.").
Critical to our decision, then, are the circumstances that surround the federal conviction. "In most cases an attorney convicted of distribution of controlled dangerous substances would be disbarred. Disbarment would certainly be appropriate if
the distribution were done for gain or profit." In re Kinnear,
105 N.J. 391, 396 (1987). Accordingly, we have disbarred
attorneys who engaged in wide-ranging conspiracies to distribute
controlled dangerous substances for financial gain. In re
Goldberg,
105 N.J. 278, 283 (1987).
In Goldberg, the attorney knowingly participated in an
extensive narcotics conspiracy with a known drug dealer and
fugitive. Id. at 280. He took steps to invest and shield the
proceeds of the narcotics transactions. Id. at 281. The Court
disbarred him.
By his voluntary and knowing participation in
a conspiracy to distribute and to possess
with intent to distribute a controlled
narcotic substance, respondent has failed to
uphold the minimum standards of honesty,
uprightness, and fair dealing of a member of
the bar. The conspiracy evidenced continuing
and prolonged, rather than episodic,
involvement in crime. The object of the
conspiracy constituted a direct threat to
society, as well as the indirect, albeit
real, harm to persons who eventually would be
mired in drugs. The crime quite obviously
involved dishonesty, deceit and a contempt
for law. Moreover, respondent was motivated
by personal greed, and further, he used his
professional status and skills as a lawyer to
assist in the engineering of the criminal
scheme.
In In re McCann, 110 N.J. 496 (1988), the attorney participated in a large-scale and prolonged criminal narcotics conspiracy that involved the purchase of large quantities of cocaine in various South American countries. He arranged to smuggle the cocaine into the United States by truck, automobile,
ship or airplane. Id. at 498-99. He was sentenced to an
aggregate term of life imprisonment without parole. Id. at 499.
We disbarred him because he contrived and actively participated
in a large-scale conspiracy. His misconduct and convictions
established an involvement in dishonest, fraudulent, and
deceitful practices that adversely reflected on his fitness to
practice law. Id. at 501-02.
An attorney who sold more than a pound of cocaine to a
police informant for $11,500 was disbarred in New Jersey
following disbarment and incarceration in New York. In re
Valentin,
147 N.J. 499, 501 (1997). There, we agreed with the
DRB's recommendation because Valentin's distribution of
controlled substances for financial gain adversely reflected on
his ability to practice law. Id. at 503-04.
Nonetheless, disbarment does not automatically result from a
distribution conviction. In Kinnear, supra, 105 N.J. at 392, we
disciplined an attorney after he pleaded guilty to one count of
distribution of a CDS. The attorney "shared or gave" 1.35 grams
of cocaine to an undercover narcotics agent, his purported good
friend, who claimed he was unable to secure drugs. Ibid. As a
result of his plea, the attorney was placed on probation for
three years and was directed to continue outpatient treatment.
Id. at 393. In considering the discipline to impose, we weighed
the following factors: the nature and severity of the crime, the
relationship of the crime to the practice of law, the reputation
of the respondent, and his prior conduct and character. Ibid.
We imposed a one-year suspension because Kinnear was primarily an
addict whose misconduct was limited to one episode, was unrelated
to the practice of law, and was unlikely to recur. Id. at 396-97.
Obviously, respondent's case falls between Kinnear and
McCann. Respondent is not a one-time offender, nor is he a
kingpin in a drug cartel. His case, like every disciplinary
case, is fact-sensitive. Hasbrouck, supra, 140 N.J. at 167
(citing Kinnear, supra, 105 N.J. at 395; In re Litwin,
104 N.J. 362, 366 (1986)). Respondent's drug-related convictions are very
serious transgressions and "evidence[] a public judgment that
places in question the lawyer's integrity and respect for the
law." Kaufman, supra, 104 N.J. at 513-14.
The three state charges are for possession or conspiracy to possess small amounts of drugs for personal use. The last possession incident occurred when respondent relapsed days before he was scheduled to be imprisoned. These state charges would ordinarily not warrant disbarment. The decisive question is what discipline is required for the federal offense. Our independent review of the record leads us to conclude that suspension, not disbarment, is the appropriate discipline for respondent on the federal conspiracy charge. Respondent admitted that he distributed cocaine to CW on three occasions and consequently pled guilty to conspiracy to distribute cocaine.
We note that there has been no other ethical infraction in
his twelve-year legal career. Respondent's misconduct did not
harm his clients. He was able to meet his professional
obligations while he spiraled down the path of drug addiction.
Unlike the attorney in Goldberg, who used his skills as an
attorney to engineer a criminal scheme, respondent's misconduct
did not relate to the practice of law, nor did he use his
professional status or skills as an attorney to assist in his
criminal acts. He was not practicing law at the time of the
activities leading to his arrests.
Respondent's conduct was significantly different from the
egregious conduct of the attorneys in McCann and Goldberg, who
participated in extensive criminal narcotics conspiracies solely
for profit. Respondent did not intend his sales to CW to result
in public distribution because the cocaine was purportedly for
CW's personal use. CW used their former relationship to persuade
him to procure drugs for her when she was ostensibly unable to do
so. Moreover, while respondent's misconduct occurred over a
five-month period (except for the final 1995 arrest, which
followed his federal sentencing), his criminal activity was
episodic and not part of a prolonged enterprise. As in Kinnear,
we conclude that the circumstances leading to respondent's
federal conviction (the distribution of cocaine at the request of
his ex-friend) are unlikely to recur.
Respondent did distribute substantial amounts of cocaine on
the three separate occasions involving CW, and disbarment would
generally be appropriate if the distribution were for gain or
profit. Kinnear, supra, 105 N.J. at 396. As in Kinnear,
however, respondent was primarily a drug user. Respondent's
cocaine sales were profit-related only to the extent that he used
the $200 to feed his heroin addiction.
Obviously, respondent's conduct was more serious than that
in Kinnear because it occurred on several separate occasions and
involved a greater amount of drugs. Nonetheless, we are
influenced by the mitigating factors involved in this case. As
revealed at his federal sentencing hearing, respondent cooperated
with the FBI after his sales of cocaine, and his cooperation
provided information about the involvement of persons in the drug
trade.
We unequivocally condemn the use of illegal drugs by
attorneys. We do, however, consider bona fide efforts at
rehabilitation in deciding the appropriate discipline. In
Hasbrouck, supra, we noted:
We recognize the grave affliction that besets
those stricken by the disease of addiction
and acknowledge that lawyers are not
insulated from the expansive reach of this
illness. We appreciate also the difficult
path of treatment and self-deprivation that
must be traveled on the way to recovery.
This Court looks to aid attorneys who attempt
to better their lives by seeking help and
eventual recovery.
Accordingly, in Schaffer, supra, 140 N.J. at 157, 161, we considered as a mitigating factor the attorney's consistent attempts to address his addiction after his arrest, including
participation in a drug and alcohol rehabilitation program and
regular attendance at AA meetings. We also authorized a new form
of discipline, accelerated suspension, for attorneys whose drug
addiction contributed to the commission of a possessory drug
offense, but who have conscientiously, promptly, successfully
achieved rehabilitation. We have cooperated with the New Jersey
State Bar in its efforts to conduct a Lawyers Assistance Program
to help lawyers with substance abuse problems combat their
affliction.
Respondent twice attempted to address his addiction prior to
his arrests, first in 1991 when he voluntarily entered Clear
Brook Manor, and also in 1993 when he entered the Marwarth
Clinic. Respondent's own appreciation of his dependency, not the
threat of discipline, convinced him to seek help for his
addiction.
Respondent did address, albeit unsuccessfully, his addiction
after his arrests. In October 1993, respondent voluntarily
entered the Jersey Shore Addiction Service for a thirty-day
detoxification and rehabilitation program, from which he was
satisfactorily discharged. As part of pre-trial services on the
federal indictment, respondent entered the Discovery House, and
he continued with therapy post-discharge. When he relapsed in
August 1993, he re-entered Discovery House for two weeks. While
serving his prison terms, respondent completed an intensive drug
program and attended both AA and NA meetings. Like almost every
person addicted by compulsive disorder, respondent had to hit
bottom before he started up. Had his drug dependency led to
theft of client funds or genuine involvement in organized
criminal distribution of drugs, he would be disbarred.
Respondent has continued to address his addiction since his
release from prison. Respondent has been attending both group
and individual counseling three times weekly. Likewise,
respondent has random urine drug screening twice per week, all of
which have been negative. He also has an AA sponsor and attends
AA meetings at least three times a week. Respondent, who has
expressed deep remorse over the embarrassment he has caused his
family and the bar, has been substance-free since May 1995. His
former employer, who commendably undertook to represent
respondent in these ethical proceedings, represents to us that
respondent has remained drug-free.
We conclude that respondent was primarily a drug user;
that he did not seek to profit from his activities; that his
misconduct did not relate to the practice of law; that his act of
distribution is unlikely to recur; that he cooperated with
federal agents; and that respondent confronted his addiction
before and after he was arrested. Given his efforts to
rehabilitate himself, we are left short of the conclusion that
respondent's ethical violations reflect a defect in professional
character so grave as to require disbarment.
Respondent's misconduct warrants strong disciplinary
measures because it calls into question an attorney's respect for
the law.
We order that respondent be suspended from the practice of
law for a period of three years, effective June 15, 1995, the
date of his suspension. In order to preserve the public's
confidence in the legal profession, we affix stringent conditions
on respondent's return to practice. We require that respondent
continue in any course of counseling that is professionally
recommended as long as necessary, including any necessary
testing. Finally, respondent's readmission shall also be
contingent on his working in a supervised capacity until
otherwise ordered by the DRB on suitable application.
Respondent shall reimburse the Disciplinary Oversight
Committee for appropriate administrative costs.
So Ordered.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
29 September Term 1997
IN THE MATTER OF :
O R D E R
VICTOR M. MUSTO, :
AN ATTORNEY AT LAW :
It is ORDERED that VICTOR M. MUSTO of ASBURY PARK, who was
admitted to the bar of this State in 1983, be suspended from the
practice of law for three years and until further Order of the
Court, retroactive to June 15, 1995; and it is further
ORDERED that during his suspension, respondent shall
continue in a course of counseling that is professionally
recommended as long as necessary, including any necessary
testing; and it is further
ORDERED that on his reinstatement, respondent shall practice
law only under the supervision of a practicing attorney until
otherwise ordered by the Disciplinary Review Board on suitable
application; and it is further
ORDERED that the entire record of this matter be made a
permanent part of respondent's file as an attorney at law of this
State; and it is further
ORDERED that respondent be restrained and enjoined from
practicing law during the period of his suspension and that he
continue to comply with Rule 1:20-20; 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 Deborah T. Poritz, Chief Justice, at
Trenton, this 19th day of December, 1997.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-29 SEPTEMBER TERM 1996
Application for
Disposition Three-year suspension
Decided December 19, 1997
Order returnable
Opinion by PER CURIAM
Footnote: 1In support of the reduction motion, the Assistant U.S. Attorney said:
[T]he defendant has always made himself available whenever he has been
requested to. The defendant has undergone a number of things in his life
since the arrest which may be one of the better things that happened to
him . . . . But he has confronted his drug use problem and while there
have been a couple of slips, considering the length of time that drug use
has gone on, from our prospective [sic], . . . of receiving some information
and cooperation from someone, he has been everything that we could ask.
Footnote: 2Moreover, disbarment is appropriate where the attorney has misappropriated client
funds to fund the attorney's drug addiction. In those circumstances, the attorney's drug
or alcohol addiction will not constitute a mitigating factor to overcome the presumption
of disbarment. See In re Ryle,
105 N.J. 10, 12-13 (1987)(attorney disbarred for
appropriating approximately $2,240 of client funds notwithstanding defense of
alcoholism); In re Hein,
104 N.J. 297, 303-04 (1986)(attorney disbarred for neglect of
clients' matters, misrepresentation of status of matters, and misappropriating
approximately $1,400 of client funds notwithstanding defense of alcoholism); In re
Romano,
104 N.J. 306, 311 (1986)(attorney disbarred for misappropriating thousands of
dollars of client funds to support drug habit); In re Monaghan,
104 N.J. 312, 313
(1986)(disbarment for misappropriating client funds as result of alcohol use); In re
Canfield,
104 N.J. 314, 315 (1986)(disbarment for misappropriating client funds as result
of alcohol use); In re Jacob,
95 N.J. 132, 137-38 (1984)(alcoholism unavailing as a
mitigating factor so as to forestall disbarment in misappropriation case absent
“competent medical proofs that respondent suffered a loss of competency,
comprehension or will of a magnitude that could excuse egregious misconduct that was
clearly knowing, volitional and purposeful”).