(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 January 6, l997 -- Decided February 21, 1997
PER CURIAM
This is an attorney disciplinary case.
The Office of Attorney Ethics (“OAE”) filed a Motion for Reciprocal Discipline with the
Disciplinary Review Board (“DRB”) seeking the disbarment of Staten Island attorney, Frank Valentin, who
was admitted to practice in New Jersey in l988. The OAE's application was based on Valentin's disbarment
by the State of New York, which followed his l993 criminal conviction for the sale of more than one pound
of cocaine. On January 30, l995, as a result of his conviction, the Supreme Court entered an order
temporarily suspending Valentin. He remains suspended to date. In its report to the Supreme Court, the
DRB recommended that Valentin be disbarred.
The Supreme Court issued an Order to Show Cause pursuant to R. 1:20-16(a).
HELD: Valentin's disbarment in the State of New York for his criminal conviction for the sale of more
than one pound of cocaine warrants his disbarment from the practice of law in New Jersey for the reasons
expressed in the DRB's report.
JUSTICE O'HERN filed a separate dissenting opinion, in which JUSTICE STEIN joins, setting
forth the view that this case merits less severe treatment. Specifically, because of Valentin's difficult past
culminating in his drug addiction, the dissent would suspend him for a period of seven years (the period of
time after which a disbarred attorney in New York may apply for reinstatement) to allow Valentin an
opportunity to rehabilitate himself, after which he could reapply for admission to the New Jersey bar.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, GARIBALDI and COLEMAN
join in the Court's opinion. JUSTICE O'HERN has filed a separate dissenting opinion in which
JUSTICE STEIN joins.
SUPREME COURT OF NEW JERSEY
D-
37 September Term 1996
IN THE MATTER OF
FRANK VALENTIN
An Attorney at Law.
Argued January 6, 1997 -- Decided February 21, 1997
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Richard J. Engelhardt, Counsel to Director,
argued the cause on behalf of the Office of
Attorney Ethics.
Stephen J. Tafaro argued the cause for
respondent (Tafaro & Flynn, attorneys; Daniel
J. O' Connor, on the brief).
PER CURIAM
Pursuant to Rule 1:20-14(a)(4), the Office of Attorney
Ethics filed a Motion for Reciprocal Discipline with the
Disciplinary Review Board seeking the disbarment of respondent
Frank Valentin. The application was based on respondent's
disbarment by New York, which action followed his criminal
conviction for the sale of more than one pound of cocaine.
In a report that is appended to this opinion, the
Disciplinary Review Board recommended that respondent be
disbarred. The Court adopts the Board's report and directs that
respondent be disbarred.
So Ordered.
Chief Justice Poritz and Justices Handler, Pollock,
Garibaldi, and Coleman join in the Court's opinion. Justice
O'Hern has filed a separate dissenting opinion in which Justice
Stein joins.
SUPREME COURT OF NEW JERSEY
D-
37 September Term 1996
IN THE MATTER OF
FRANK VALENTIN,
An Attorney at Law.
O'HERN, J., dissenting.
We have ordinarily disbarred attorneys who have sold drugs.
This case requires special concern.
On July 6, 1969, Frank Valentin was drafted into the United
States Army. His service took him to a combat unit in the
central highlands of Vietnam. He received the Purple Heart and
other commendations for his service. Unfortunately, like so many
other veterans of that war, he became addicted to drugs and
suffered a profound mental disorder from the loss of close
comrades.
He resolved to live a life in emulation of one of his fallen
comrades. He returned to his community in the Bronx. He worked
full-time at night as a uniformed court officer while putting
himself through Seton Hall Law School and raising a family. In
1986, he was admitted to the New York bar and opened up a law
practice in the Bronx.
Unfortunately, he could never shed his addiction to heroin.
He led a double life. At once an admired member of his community
rendering counsel to others and at the same time living a life of
drug dependency. He has pled guilty in New York to a third-degree criminal sale of drugs charge involving the sale of a
pound of cocaine for $11,500. There are overtones of greater
involvement. These are disputed. Were we to premise discipline
on disputed facts, we would have to conduct a hearing to
establish the predicate for discipline. In re Spina,
121 N.J. 378 (1990).
On the occasion of respondent's sentencing, the court
described him thus:
He was a court officer for a number of years,
highly respected, received commendations,
went to law school, became an attorney, and
became a successful practitioner, and has
appeared before me on many occasions and has
done well for his clients. Apparently has a
drug problem which goes back many years. He
has a psychiatric history which also goes
back many years [for] which he has received
treatments as a result of the Vietnam War, at
different veterans' hospitals. He has a
family, a wife, children. He's worked hard
all his life and done the good things that
were supposed to be done by the people who
represent defendants, and people in public
office and public life. I can't go into the
motives in this matter because I really don't
know what the motives were.
Valentin's motives to make the drug sale were clouded by a dispute with an undercover agent over the sale of a car. We have the case on a motion for reciprocal discipline pursuant to Rule 1:20-14(a)(4). Under that Rule we would ordinarily impose the identical action or discipline taken by the other jurisdiction unless "the misconduct established warrants substantially different discipline." R. 1:20-14(a)(4)(E). Under New York
practice, a disbarred attorney may seek reinstatement seven years
after the effective date of disbarment. New Jersey disbarment is
final.
We have therefore ordinarily not disbarred attorneys unless
the attorney's conduct is so "immoral, venal, corrupt or criminal
as to destroy totally any vestige of confidence that the
individual could ever again practice in conformity with the
standards of the profession." In re Templeton,
99 N.J. 365, 376
(1985). We thus reasoned in In re Farr,
115 N.J. 231 (1989),
that when the cause of ethical transgressions seem to be "`some
mental, emotional, or psychological state or medical condition
that is not obvious and . . . could be corrected through
treatment,'" the respondent "need not be disbarred to preserve
confidence in the bar or to protect the public." 115 N.J. at 237
(quoting Templeton, supra, 99 N.J. at 374). (That exception,
however, does not apply to the knowing misappropriation of funds.
In re Skevin,
104 N.J. 476 (1986).) In this case, the
circumstances do not unerringly point to a conclusion that Frank
Valentin has an utterly "unsalvageable professional character,"
or is utterly "beyond the pale of professional rehabilitation,"
the traits that call for disbarment. Templeton, supra, 99 N.J.
at 376, 377.
Most of us can only learn second-hand how Valentin's service
experience in Vietnam could have affected his life. Were we to
offer him the hope of redemption through restoration to practice
upon a showing of a drug-free life for seven years, we might not
just salvage a lawyer, we might salvage a life. Is it wrong to
suggest that we might just owe him this?
Justice Stein joins in this opinion.
SUPREME COURT OF NEW JERSEY
Disciplinary Review Board
Docket No. DRB 92-261
:
IN THE MATTER OF :
:
FRANK VALENTIN :
:
AN ATTORNEY AT LAW :
:
Decision of the
Disciplinary Review Board
Argued: September 20, 1995
Decided: July 15, 1996
Richard J. Engelhardt appeared in behalf of the Office of Attorney
Ethics.
Respondent did not appear due to his incarceration in another
state.
To the Honorable Chief Justice and Associate Justices of the
Supreme Court of New Jersey.
This matter was before the Board on a Motion for Reciprocal
Discipline filed by the Office of Attorney Ethics (OAE), based upon
respondent's disbarment in the State of New York following his
criminal conviction for the sale of cocaine.
Respondent has been a member of the New Jersey bar since 1988
and the New York bar since 1986. On April 30, 1994, a three-count
indictment was filed in the Bronx County Court, State of New York,
charging respondent with criminal sale of a controlled substance in
the first degree [N.Y. Penal Law 220.43(1)], criminal possession of
a controlled substance in the first degree [N.Y. Penal Law 220.
21(1)] and resisting arrest [N.Y. Penal Law 205.30]. On
November 12, 1993, respondent entered a guilty plea to a reduced
charge of criminal sale of a controlled substance in the third
degree [N.Y. Penal Law 220.3a(1)], a class B felony. On January
21, 1994, respondent was sentenced to an indeterminate term of
imprisonment, ranging from fifty-two months to fourteen years.
The event underlying respondent's conviction occurred late at
night on April 26, 1993, when he sold more than a pound of cocaine
to a police informant for the sum of $11,500. Prior to the
transaction, respondent's name had arisen repeatedly in connection
with narcotics deals during a wiretap investigation. This matter
was not respondent's first contact with illegal drugs, as he had an
admitted history of drug addiction.
Based upon respondent's conviction, on August 4, 1994, the
Supreme Court of New York, Appellate Division, First Judicial
Department, ordered him disbarred from the practice of law in the
State of New York.
Respondent did not notify the OAE of either his criminal
conviction [R. 1:20-13(a)(1)] or his disbarment in New York [R.
1:20-14(a)(1)]. The OAE was so informed by the New York Department
Disciplinary Committee. On January 30, 1995, the New Jersey
Supreme Court, pursuant to R. 1:20-13(b)(1)], temporarily suspended
respondent for his conviction of a serious crime. In re Valentin,
139 N.J. 160 (1995). The suspension remains in effect as of this
date.
The OAE has requested the imposition of disbarment.
Upon review of the full record, the Board has determined to
grant the OAE's Motion for Reciprocal Discipline. Pursuant to R.
1:20-14(a)(5) (another jurisdiction's finding of misconduct shall
establish conclusively the facts on which the Board rests for
purposes of a disciplinary proceeding), the Board adopted the
findings of the New York Supreme Court, Appellate Division, First
Judicial Department. The Board also considered respondent's
failure to notify the OAE of his New York disbarment and criminal
conviction, in violation of R. 1:20-14(a)(1) and R. 1:20-13(a)(1).
In disciplinary proceedings, the existence of a criminal
conviction is conclusive evidence of respondent's guilt. R. 1:20-13(c)(1); In re Rosen,
88 N.J. 1, 3 (1981). Whenever an attorney
commits a crime, he or she violates his or her professional duty to
uphold and honor the law. In re Bricker,
90 N.J. 6, 11 (1982).
Respondent's criminal conviction clearly and convincingly
demonstrates that he committed a criminal act which adversely
reflects on his fitness as a lawyer. RPC 8.4(b).
Reciprocal disciplinary proceedings in New Jersey are governed
by R. 1:20-14(a)(4), which provides:
. . . [t]he Board shall recommend the imposition of the
identical action or discipline unless the respondent
demonstrates, or the Board finds on the face of the
record upon which the discipline in another jurisdiction
was predicated that it clearly appears that:
(A) the disciplinary...order of the foreign
jurisdiction was not entered;
(B) the disciplinary...order of the foreign
jurisdiction does not apply to the respondent;
(C) the disciplinary...order of the foreign
jurisdiction does not remain in full force and
effect as the result of appellate proceedings;
(D) the procedure followed in the foreign
disciplinary matter was so lacking in notice
or opportunity to be heard as to constitute a
deprivation of due process; or
(E) the misconduct established warrants
substantially different discipline.
A review of the record does not reveal any conditions that
would fall within the ambit of subparagraphs (A) through (D). As
to subparagraph (E), although respondent was disbarred in New York,
a disbarred New York attorney may seek reinstatement seven years
after the effective date of disbarment.
22 N.Y.C.R. 603.14. The
magnitude of respondent's crime, however, warrants more severe
discipline than a seven-year suspension in New Jersey. It warrants
disbarment.
Prior New Jersey cases involving attorneys who distributed
controlled substances for financial gain have resulted in
disbarment. In In re Goldberg,
105 N.J. 278 (1987), an attorney
was disbarred subsequent to his conviction of conspiracy to
distribute, and possession with the intent to distribute, phenyl
acetone ("speed"). In In re McCann,
110 N.J. 496 (1988), an
attorney was disbarred for convictions of large scale drug
distribution and income tax evasion. As the Court ruled in In re
Kinnear,
105 N.J. 391, 396 (1987), "in most cases an attorney
convicted of distribution of controlled dangerous substances [will]
be disbarred. Disbarment would certainly be appropriate if the
distribution were done for gain or profit."
In his brief to the Board, respondent advanced a claim of
post-traumatic stress disorder, not as a justification, but as an
explanation for his actions. No amount of mitigation, however,
will be sufficient to save respondent from disbarment in New
Jersey. As the Court stated in In re Goldberg, supra, 105 N.J. at
283-84;
[t]he public must be protected from
attorneys... who are unable to resist the
opportunities for dishonesty which the
practice of law often presents. That a
lawyer, a representative of the profession
sworn to honor and uphold our laws, would
participate and profit from the illicit drug
trade is unconscionable. Both the public and
the bar are entitled to be assured that such
an attorney will never return to the
profession. [Citation omitted].
Here, too, respondent's distribution of a controlled substance
for profit was unconscionable. It matters not that his criminal
activity was confined to one incident. It is the magnitude of the
crime that mandates disbarment. The Board unanimously so
recommends.
The Board further determined to require respondent to
reimburse the Disciplinary Oversight Committee for administrative
costs.
Dated: 7/15/96 By: /s/ Lee M. Hymerling
LEE M. HYMERLING,
Chair
Disciplinary Review Board
SUPREME COURT OF NEW JERSEY
D-
37 September Term 1996
IN THE MATTER OF :
FRANK VALENTIN, : O R D E R
AN ATTORNEY AT LAW :
It is ORDERED that FRANK VALENTIN of STATEN ISLAND, who was
admitted to the bar of this State in 1988, be disbarred and that
his name be stricken from the roll of attorneys of this State,
effective immediately; and it is further
ORDERED that FRANK VALENTIN be and hereby is permanently
restrained and enjoined from practicing law; and it is further
ORDERED that all funds, if any, currently existing in any
New Jersey financial institution maintained by FRANK VALENTIN,
pursuant to Rule 1:21-6, be restrained from disbursement except
upon application to this Court, for good cause shown, and shall
be transferred by the financial institution to the Clerk of the
Superior Court who is directed to deposit the funds in the
Superior Court Trust Fund, pending further Order of this Court;
and it is further
ORDERED that FRANK VALENTIN comply with Rule 1:20-20 dealing
with disbarred attorneys; and it is further
ORDERED that FRANK VALENTIN reimburse the Disciplinary
Oversight Committee for appropriate administrative costs.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at
Trenton, this 21st day of February, 1997.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-37 SEPTEMBER TERM 1996
Application for
Disposition Disbar
Decided February 21, 1997
Order returnable
Opinion by PER CURIAM
Dissenting Opinion by Justice O'Hern