(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 September 27, 1999 -- Decided January 28, 2000
PER CURIAM
This attorney disciplinary matter arises from a motion for final discipline filed by the Office of Attorney
Ethics (OAE) following respondent Tonzola's conviction for forgery and theft.
Respondent, Jude J. Tonzola, was admitted to the New Jersey bar in 1986. In March 1995, Tonzola was
charged with three counts of forgery and one count of theft after he forged the signatures of three separate Superior
Court judges to three separate documents in two client matters, and after he used $27,000 in client funds for his own
purposes and without his client's authorization in another unrelated client matter. In April 1995, he pled guilty to
one count of forgery and to the theft charge.
Following his conviction, and based on R. 1:20-13(c), the OAE filed a motion for final discipline with the
Disciplinary Review Board (DRB), recommending that respondent be disbarred. In its decision dated November
18, 1996, a majority of the DRB concurred in the OAE's recommendation and also recommended respondent's
disbarment. Two members of the DRB favored less severe discipline due to Tonzola's asserted manic-depressive
illness and underlying bipolar disorder. Following the Supreme Court's issuance of an Order to Show Cause, the
Court remanded the matter to the DRB to give the parties the opportunity to supplement the record in respect of
Tonzola's claim of the asserted medical condition as a mitigating factor.
On remand to the DRB, the parties chose to supplement the record by submitting expert reports and further
briefs. After reviewing those reports and the supplemental briefs submitted by the parties, on May 10, 1999, the
DRB submitted its supplemental decision, reaffirming its original decision to recommend Tonzola's disbarment. In
its decision, the DRB emphasized that Tonzola's medical expert was unable to state that Tonzola had lost all
appreciation of the wrongfulness of his actions, and that the OAE's medical expert observed that, despite the
asserted condition, Tonzola was able to function effectively and properly in other settings.
The matter is before the Supreme Court pursuant to R. 1:20-16(a).
HELD: Respondent Tonzola's is disbarred for his convictions for forgery and theft of client funds, his medical
proofs having failed to justify the imposition of a lesser sanction .
1. Disbarment is almost invariable in misappropriation cases unless there has been a demonstration by competent
medical proofs that a respondent has suffered a loss of competency, comprehension or will of a magnitude that
could excuse egregious misconduct that was clearly knowing, volitional and purposeful. (pp. 11-12)
2. Tonzola's mental illness, however severe, did not deprive him of the knowledge that he was taking his client's
funds, that the funds belonged to his client, or that his client had not authorized the taking. (pp. 12-18)
3. Tonzola's efforts in forging the signatures of three judges and producing phony court documents on various
dates perpetrated a fraud against his clients and further corrupted justice. Standing alone, these acts warrant stern
discipline. (p. 18)
JUSTICE COLEMAN filed a separate opinion, concurring in part with and dissenting in part from the
Court's PER CURIAM opinion. Although Justice Coleman agreed with the ultimate sanction of disbarment, he
disagreed with the Court's remand of the matter in the first instance for supplementation of the record on the issue
of mitigation. Rather, Justice Coleman believed that when Tonzola entered his unconditional guilty pleas to theft
and forgery, he admitted that his conduct was purposeful and that he was waiving any and all defenses to those
offenses, including any mental defect such as diminished capacity. He viewed the supplementary proceedings in
this case as a
an opportunity for Tonzola to collaterally attack his criminal convictions, in contravention of R. 1:20-13(c)(2). On a
more general level, Justice Coleman would prefer a bright line rule holding that the Jacob diminished capacity
standard has no application when the disciplinary proceedings are based on a judgment of conviction for theft of
client or law firm funds.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, LONG, and
VERNIERO join in this PER CURIAM opinion. JUSTICE COLEMAN filed a separate opinion, concurring
in part and dissenting in part from the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
44 September Term 1996
IN THE MATTER OF
JUDE J. TONZOLA,
AN ATTORNEY AT LAW.
Argued September 27, 1999 -- Decided January 28, 2000
On an Order to Show cause why respondent
should not be disbarred or otherwise
disciplined.
Michael J. Sweeney, Deputy Ethics Counsel,
argued the cause on behalf of the Office of
Attorney Ethics.
William R. Connelly argued the cause for
respondent (Connelly & Manfredi, attorneys).
PER CURIAM.
This is an attorney disciplinary matter. It arises from a
motion for final discipline filed by the Office of Attorney
Ethics (OAE) before the Disciplinary Review Board (DRB). The
motion is based on the criminal conviction of respondent, Jude J.
Tonzola, for forgery and theft. In a decision dated November 18,
1996, the DRB concurred in the OAE recommendation that respondent
be disbarred. We remanded the matter to permit the parties the
opportunity to supplement the record in respect of respondent's
claim of a medical condition (manic depression-bipolar disorder)
as a mitigating factor. On May 10, 1999, the DRB reaffirmed its
decision to disbar respondent.
We have conducted an independent review of the record as
provided by Rule 1:20-16(c). In so doing we have relied upon
Rule 1:20-13(c)(1), which provides that a criminal conviction is
conclusive evidence of respondent's guilt, and carefully
considered the asserted mitigating factors. We hold that
respondent should be disbarred.
A.
In December 1993, respondent, along with partners Richard S. Panitch and G. Daniel Nider, formed the firm of Tonzola, Panitch & Nider. The firm began doing business in February 1994. Respondent's partners encountered, in their words, “problems with Tonzola” early in their relationship. More specifically, in a joint statement submitted to the OAE, the partners claimed that respondent failed to submit his daily time sheets, failed to prepare file memoranda used by the firm's case management system, and failed to arrange for the delivery of certain client files promised by respondent as a basis for the initial formation of the firm. They also assert that respondent lied about his whereabouts (for example, he would claim to be in court on client business when he was not), charged personal expenses on the firm credit card, and was repeatedly absent from work.
Respondent's partners grew concerned. In early April 1994, they insisted that respondent see a psychiatrist as a condition of their continued association. Respondent agreed and Dr. Howard Gross was selected to conduct the evaluation. According to the partners, Dr. Gross informed them that respondent suffered from “depression with an obsessive-compulsive lying component.” That opinion was formed partly on the basis of three patient visits. The partners also indicated in their statement that Dr. Gross expressed the view that respondent's condition was “fully treatable with medication” and that he could continue to practice law with appropriate supervision.
On March 26, 1995, respondent was charged in an Essex County criminal accusation with three counts of forgery, in violation of N.J.S.A. 2C:21-1a(2), and one count of theft by unlawful taking, in violation of N.J.S.A. 2C:20-3. On April 3, 1995, respondent pled guilty to one count of forgery and the theft charge. At the plea hearing, respondent admitted to the facts underlying both charges. The State dismissed the other counts.
As contained in the trial court record, the following facts formed the basis of the charges against respondent and his conviction:
The Two Forgeries
Gregory Policastro retained respondent to represent him in an expungement matter. (The representation spanned respondent's tenure at two law firms.) In response to the client's inquiry about the status of his case, respondent falsely represented that the expungement had been granted and that he was awaiting the court's order to that effect. Respondent thereupon took an unrelated, legitimate order signed by Superior Court Judge Edward W. Beglin, Jr., excised the judge's name using white-out or some other material, and photocopied it onto a separate sheet of paper to make it appear as an official order. He then tailored the language as expungement language and forged the judge's signature without the court's authorization or knowledge. Respondent presented the forged order to the client. That conduct occurred on or about October 8, 1993. The record also reveals that respondent had previously forged the signature of another Superior Court Judge, Eugene J. Codey, Jr., in furtherance of the same scheme. The forgery of Judge Codey's signature occurred on or about July 6, 1992.
The Theft and Third Forgery
Harry Romeo retained respondent to represent him in connection with the purchase of real estate. In January 1994, the client gave respondent a power of attorney to close the transaction and, for that purpose, gave respondent $27,000. Rather than utilize the funds for the closing, respondent used approximately $24,000 for his capital contribution to the Tonzola, Panitch & Nider firm and used $3,000 for his additional, personal benefit. He delivered the check for his capital contribution to the firm on or about January 27, 1994.
Respondent also misrepresented to the client the status of civil litigation related to the purchase. In furtherance of the misrepresentation, respondent forged the signature of a third Superior Court Judge, Murray G. Simon. The forgery appears on a letter dated May 2, 1994, addressed to counsel of record, purportedly advising them of the status of the litigation. Although the record is imprecise as to exact dates, it appears that the client, unaware of respondent's misdeeds, continued to believe he was being properly represented until May 1994.
On May 22, 1995, the trial court sentenced respondent to a one-year term of probation. As special conditions, respondent was required to make restitution to the Lawyers' Fund for Client Protection in the amount of $27,000 and to write letters of apology to the three judges whose signatures he forged. After the OAE learned of the original allegations, respondent consented to a temporary suspension, which was ordered by this Court on May 26, 1994. In re Tonzola, 137 N.J. 1 (1994). The suspension has been in place since that date.
Although our remand order provided respondent and the OAE with the opportunity to request a full hearing before a special master, both declined to do so. Instead, the parties supplemented the record by submitting expert reports and relied on the briefs of counsel. On behalf of the OAE, Daniel P. Greenfield, M.D., a psychiatrist, submitted a November 25, 1998, report (the “Greenfield report”). The Greenfield report states in part:
With regard to the issue of Mr. Tonzola's mental states and psychiatric conditions in connection with the several incidents in question, while I accept and agree that an underlying Bipolar Disorder when not effectively treated can result in acute impulsive behaviors, also driven by very poor social and professional judgement and grandiosity, and while I also accept and agree with Dr. Gross'[s] formulation that Mr. Tonzola was actively symptomatic with regard to his Bipolar Disorder at the time, it is nevertheless my psychiatric opinion -- held with a degree of reasonable medical probability -- that even if this situation were the case with Mr. Tonzola during the several specific periods of time in question in relation to the several specifically unacceptable acts and behaviors in which he engaged as an attorney (i.e., the three forgeries and misappropriation of approximately $27,000), it did not determine his mental state, ability to plan in purposeful, sequential, and goal-directed behaviors, or otherwise to impair his ability to have engaged in the complex behaviors in which he did, to the point that he was unable to do so.
Put more simply, Mr. Tonzola was motivated in all of the instances of his forgeries to have engaged in complex, goal-directed, knowing, and purposeful behaviors in effecting these forgeries in order to accomplish the goal which he felt these forgeries would do at the time. His professional and social judgement were clearly wrong, and were influenced _- as described above -- by his grandiosity as a symptom of his Bipolar Disorder.
Nevertheless, he engaged in these behaviors knowing that they were wrong, but hoping that they would accomplish the goals of placating his clients . . . .
Taking this analysis beyond the four incidents at issue, however, I also note that Mr. Tonzola was involved in the practice of law in other ways, and involving other cases, during the periods of time in question of these four incidents. To my knowledge, he was able to manage these other cases effectively and in some cases very
well . . . .
. . . .
Using this analysis, these four situations
stand out as unusual and out of context with
the background of his otherwise competent and
acceptable work as an attorney. Such an
analysis does not permit symptomatology
attributable to Bipolar Disorder -- which,
presumably, was ongoing and constant during
the period of time in question -- to
selectively affect some parts of Mr.
Tonzola's work as an attorney, but not all.
Put more simply and concisely, if Mr.
Tonzola's Bipolar Disorder symptomatology
were so overbearing and uncontrollable during
the period of time in question, it should not
have affected only four out of many cases on
which he was working at the time.
. . . .
In summary . . . it is my psychiatric opinion
-- held with a degree of reasonable medical
probability -- that even though Mr. Tonzola's
judgement was unquestionable [sic] impaired
in doing what he did in connection with those
incidents, and even though this impairment
was a symptom of his underlying Bipolar
Disorder, his basic psychiatric conditions,
mental states, and abilities to engage in
high-level complex and cognitively driven and
determined behaviors was [sic] not.
In response to the Greenfield report, respondent's expert,
Dr. Gross, submitted a report dated February 5, 1998 (the “Gross
report”). Dr. Gross disputed Dr. Greenfield's assertions and
expressed the opinion that respondent's “manic depressive illness
so totally destroyed his will and volition that I would have been
surprised if he acted in any manner other than the way that he
did.” The expert also confirmed his earlier opinions expressed
to the sentencing court and the DRB. The Gross report states in
part:
In the final analysis, Mr. Tonzola's Manic
Depression so impaired his will that his
otherwise purposeful actions are excusable.
And though Mr. Tonzola may have been aware
that the funds misappropriated were client
funds and that the utilization of those funds
in the manner he did was unauthorized, his
cognitive and cerebral processes concerning
the nature, quality and, most significantly,
consequences of those acts were totally
impaired. Mr. Tonzola was totally deluded by
his Manic Depression into believing that his
actions would not ultimately harm his
clients, and were otherwise necessary to
preserve his mortal and psychic manic self,
his manic ventures into decadence, and his
existential notions of his place in the
world.
. . . Mr. Tonzola's cognitive abilities
and thought process during the times in
question were acutely infiltrated by
delusions, paranoia and grandiosity. Under
those circumstances, if the measure of a
person's sanity is the rudimentary ability to
appreciate the nature of his or her actions
and to be able to differentiate whether those
actions are right or wrong, then Mr. Tonzola
was not “insane” during the relevant times in
question. Conversely, if the measure of a
person's sanity is the totality and
juxtaposition of his or her thoughts and the
actions taken relative to those thoughts,
then Mr. Tonzola was “insane” during the
relevant times in question.
The record also includes Dr. Gross's opinion that a tumor on
respondent's spinal cord, “either caused, significantly
contributed to or acutely exacerbated the neurochemical imbalance
that, in turn, led to his manic depressive illness.” The Gross
report states: “[I]t is now accepted medical wisdom that
'individuals with SCI [spinal cord injuries] will likely have
significant histories of psychopathology, especially psychoactive
substance use disorders and major depressive disorder[.]'” Dr.
Gross theorized that the tumor, which had been removed in
November 1997, had been slow-growing since respondent's birth.
Although Dr. Gross stated that the tumor may have caused or
contributed to respondent's illness, the expert did not state
that the tumor, by itself, impaired respondent's will.
In a supplemental decision, the DRB affirmed its earlier
recommendation that respondent be disbarred. The DRB emphasized
that Dr. Gross was unable to state that respondent lost all
appreciation of the wrongfulness of his actions, and that Dr.
Greenfield observed that, despite the asserted condition,
respondent was able to function properly in other settings. The
matter is before us for our action pursuant to Rule 1:20-16(a).
For purposes of this disciplinary matter, we accept respondent's conviction as conclusively establishing the elements of the underlying offenses of forgery and theft of client funds. As we have noted:
A criminal conviction is conclusive evidence of respondent's guilt in disciplinary proceedings. No independent examination of the underlying facts is necessary to ascertain guilt. The only issue to be determined is the quantum of discipline to be imposed.
[In re Goldberg, 142 N.J. 557, 565 (1995) (citations omitted).]
Once the elements of an offense have been established, our analysis shifts to the appropriate discipline to be imposed. In that regard, we generally consider the nature and circumstances of the infraction, together with any mitigating factors. In re Spina, 121 N.J. 378, 389 (1990); In re Lunetta, 118 N.J. 443, 445-46 (1989). “[T]he Court's goal is to protect the interests of the public and the bar while giving due consideration to the interests of the individual involved.” In re Litwin, 104 N.J. 362, 365 (1986).
When the offense, however, involves misappropriation or theft of client funds, disbarment is “almost invariable.” In re Wilson, 81 N.J. 451, 453 (1979). Disbarment is all but certain in misappropriation cases unless there has been a “demonstration by 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.” In re Jacob, 95 N.J. 132, 137 (1984). We use the “Jacob standard” here to determine whether respondent has submitted proofs sufficient to justify a sanction less than disbarment.
The OAE argues that the analysis provided by respondent's expert, Dr. Gross, is flawed in that it does not account for respondent's continuing misconduct after the period in which he began treatment. The OAE also asserts that even accepting as fact that respondent suffered from some form of bipolar disorder or other condition during the periods in question, that circumstance does not satisfy the Jacob standard.
Consistent with the thrust of Dr. Gross's report, respondent argues that his illnesses so overcame and destroyed his will that he was unable to arrest his urges to misappropriate and forge.
Accordingly, respondent argues that he has satisfied the Jacob
standard and that the sanction should be short of disbarment.
After our independent review of the record, we are convinced
that respondent's medical evidence is insufficient to justify a
lighter sanction. We acknowledge that respondent's condition
makes this an atypical case. However, in other matters in which
a respondent has proffered a medical condition or compulsion as a
mitigating factor, we have concluded that disbarment is the
appropriate disposition.
In other cases, we have been unconvinced that
attorneys suffering from identifiable
compulsive disorders, mental illness, or
mental conditions could demonstrate “a loss
of competency, comprehension or will of a
magnitude that could excuse egregious
misconduct that was clearly knowing,
volitional and purposeful.” Jacob, supra, 95
N.J. at 137; see, e.g., [In re] Roth, 140
N.J. [430,] 448 [(1995)] (major depression);
In re Davis,
127 N.J. 118, 130-32 (1992)
(alcoholism); In re Spina,
121 N.J. 378, 390
91 (1990) (narcissistic personality
disorder); In re Steinhoff,
114 N.J. 268,
273-74 (1989) (drug dependency); In re Nitti,
110 N.J. 321, 325-26 (1988) (compulsive
gambling); Jacob, supra, 95 N.J. at 136-38
(thyrotoxicosis). In those cases we have
independently reviewed the record and
determined that the “medical facts” presented
did not provide a sufficient basis for “a
legal excuse or justification” in mitigation
of the respondents' acts of misappropriation.
Id. at 137. This result is consonant with
the Court's view, clearly expressed in
Wilson, that disbarment would “be almost
invariable” in misappropriation cases.
[In re Greenberg,
155 N.J. 138, 150 (1998),
cert. denied, ___ U.S. ___,
119 S. Ct. 1807,
143 L. Ed.2d 1101 (1999).]
In one case, In re Hein,
104 N.J. 297 (1986), the respondent
asserted alcoholism as a mitigating factor to the charge of
misappropriation. The respondent's expert described the effect
of the dependency: “there is a disruption eventually of the
normal critical thinking and in concern and judgment in his
perception of daily living and in the accomplishment of skills in
his particular profession.” Id. at 303. In ordering disbarment,
we explained:
These psychological states are extremely
difficult for us to resolve. We do not
purport here to determine definitively the
effect alcohol dependency can have upon the
volitional state of an individual. We have
only the legal standard to guide us. We wish
that we knew more.
Until we know more, perhaps until
science and society know more, we shall
continue to disbar in these cases. We
believe that to do less will inevitably erode
the Wilson rule and the confidence of the
public in the Bar and in this Court. We
believe that public attitudes toward
alcoholics and addicts have changed, that
they are much more compassionate, and almost
totally nonpunitive, and that the members of
the public have recognized more and more that
they are dealing more with a disease than
with a crime. Nevertheless, we do not
believe that that sympathy extends to the
point of lowering the barriers to the
protection we have attempted to give to that
portion of the public who are clients,
especially clients who entrust their money to
lawyers.
[Id. at 303-04.]
Similarly, in In re Greenberg, supra,
155 N.J. 138, in which
respondent was charged with misappropriating monies from his law
firm, it was asserted that the respondent suffered from major
depression. One expert stated that respondent “did not have the
requisite intent to steal from his law firm.” Id. at 146.
Another expert stated that the respondent “had no conscious
awareness of his actions when he misappropriated [the] funds.”
Id. at 156. In concluding disbarment was the appropriate
sanction, we stated:
Neither expert goes so far as to claim that
respondent was out of touch with reality or,
alternatively, that he did not know what he
was doing when he committed multiple acts of
misappropriation. Instead, [the respondent's
experts] opine that respondent's acts of
misappropriation were available to his
consciousness for only short periods of time
_- during and just after the acts took place
_- after which they were confined to his
subconscious. Rather than supporting
respondent's claim, this testimony indicates
that respondent did understand what he was
doing at the time he was doing it.
We are compelled to reach a similar conclusion regarding
respondent's condition. Although Dr. Gross discussed at length
the debilitating and overpowering effects of respondent's
illnesses, he also acknowledged that “Mr. Tonzola may have been
aware that the funds misappropriated were client funds and that
the utilization of those funds in the manner he did was
unauthorized . . . .” Dr. Gross further acknowledged, as noted
by the DRB, “if the measure of a person's sanity is the
rudimentary ability to appreciate the nature of his or her
actions and to be able to differentiate whether those actions are
right or wrong, then Mr. Tonzola was not 'insane' during the
relevant times in question.” Those acknowledgments, coupled with
the opinion of OAE's expert, lead us to conclude that,
“[r]espondent's mental illness, however severe, did not deprive
him of the knowledge that he was taking [his client's] funds,
that the funds belonged to his [client], or that his [client] had
not authorized the taking.” Id. at 158-59.
The OAE's suggestions notwithstanding, the record does not
clearly indicate that respondent continued his pattern of
improprieties while being actively treated by Dr. Gross. At
best, the record indicates some slight overlap: respondent first
sought Dr. Gross's treatment sometime in April 1994; the forgery
of Judge Simon's signature, the last significant act that formed
the basis of the charges brought against respondent, occurred on
or about May 2, 1994. Respondent committed the bulk of the
offenses between July 1992 and April 1994. Thus, we decline to
question the content or efficacy of the opinion expressed by Dr.
Gross to respondent's partners.
However, the fact that Dr. Gross was not actively treating
respondent during the period of misconduct raises a different
point. That fact essentially places Dr. Gross's opinion on a par
with that of the OAE's expert, Dr. Greenfield. Both opinions are
based on after-the-fact examinations of the patient; neither is
based on extensive contact with respondent at the time the
offenses were occurring. The evidence in the record, therefore,
is controverted: two experts, on equal footing, have reached
opposite conclusions as to the ultimate effect of respondent's
condition.
Nor can we overlook the fact, as emphasized by Dr.
Greenfield, that respondent was able to function properly and
well in other settings and in respect of other client matters,
despite his illnesses. Moreover, as noted, even respondent's
expert has admitted that respondent may have been able to
differentiate between right and wrong during the relevant time
periods. Viewed within the context of the entire record,
respondent's proofs are insufficient to satisfy the exacting
standard of Jacob. We cannot conclude with confidence that
respondent's mental condition influenced or motivated his
criminal conduct to the point of excusing it.
We emphasize that this matter involves not only the crime of
misappropriation, but also of forgery. The latter offense
involved respondent's efforts in forging the signatures of three
judges and producing phony court documents on assorted dates.
Not only do such acts perpetrate a fraud against the client, they
touch upon, indeed corrupt, the judicial process. Standing
alone, those acts warrant stern discipline. See In re Coruzzi,
98 N.J. 77, 79 (1984).
[M]aintenance of public confidence in this Court and in the bar as a whole requires the strictest discipline in misappropriation cases. That confidence is so important that mitigating factors will rarely override the requirement of disbarment. If public confidence is destroyed, the bench and bar will be crippled institutions. Functioning properly, however, in the best traditions of each and with full public confidence, they are the very institutions most likely to develop required reform in the public interest.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, LONG and VERNIERO join in the Court's opinion. JUSTICE COLEMAN filed a separate opinion, concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
D-
44 September Term 1996
IN THE MATTER OF
JUDE J. TONZOLA,
AN ATTORNEY AT LAW.
Coleman, J., concurring in part and dissenting in part.
I concur in the Court's judgment that respondent should be
disbarred. I write separately to explain why the Court's prior
order, requiring supplemental proceedings to determine whether
respondent's manic depression or bipolar disorder should mitigate
the quantum of discipline, was inappropriate in this case.
Respondent Tonzola pled guilty to theft by unlawful taking,
contrary to N.J.S.A. 2C:20-3, and forging a judge's signature,
contrary to N.J.S.A. 2C:21-1a(2). A person is guilty of theft of
movable property by unlawful taking or disposition “if he [or
she] unlawfully takes, or exercises unlawful control over,
movable property of another with purpose to deprive him [or her]
thereof.” N.J.S.A. 2C:20-3. Respondent also purposely forged
the signature of a Superior Court judge to a letter that falsely
informed other counsel of the status of civil litigation related
to the purchase of real estate by respondent's client.
When respondent entered his unconditional guilty pleas to
theft and forgery, he admitted that his conduct was purposeful
and that he was waiving any and all defenses to those offenses,
including any mental defect such as diminished capacity. See R.
3:9-2. The guilty plea to purposely stealing $27,000 from a
client satisfied the mental culpability requirement for a knowing
misappropriation of client funds explicated in In re Wilson,
81 N.J. 451 (1979). See N.J.S.A. 2C:2-2c(2). Respondent's criminal
convictions, based on his guilty pleas, are “conclusive evidence
of [his] guilt in disciplinary proceedings.” In re Goldberg,
142 N.J. 557, 565 (1995).
Our Court Rules provide that once a respondent has been
convicted of a criminal offense, whether by plea or verdict, and
disciplinary proceedings are based on the criminal conduct, the
sole issue to be decided in the attorney disciplinary proceeding
“shall be the extent of final discipline to be imposed.” R.
1:20-13(c)(2). To mitigate the quantum of disciple, a respondent
may present “evidence which does not dispute the crime but which
shows mitigating circumstances [relevant to] the issue of whether
the nature of the 'conviction merits discipline and, if so, the
extent thereof.'” In re Mischlich,
60 N.J. 590, 593 (1972)
(citation omitted). That principle has been codified in our
Court Rules: “The Board and Court may consider any relevant
evidence in mitigation that is not inconsistent with the
essential elements of the criminal matter for which the attorney
was convicted or has admitted guilt as determined by the statute
defining the criminal matter.” R. 1:20-13(c)(2) (emphasis
added).
Notwithstanding that respondent's guilty plea and criminal
conviction for knowing misappropriation of client funds triggered
the Wilson automatic disbarment rule, he has attempted to prove
in the mitigation proceeding that his manic depression/bipolar
disorder prevented him from being able to formulate the requisite
mental culpability for a knowing misappropriation of client
funds. Respondent also contends that although he pled guilty to
forgery, he suffered from a mental defect that prevented him from
being able to purposely commit forgery. I reject both of those
contentions as a matter of law. I am of the view that the
supplemental hearing afforded respondent should not have been
conducted and the outcome of those proceedings should have no
impact on the quantum of discipline to be imposed. Although such
a hearing was unwarranted, I am further persuaded that
respondent's proofs failed to establish any entitlement to
mitigation.
The supplemental proceedings were intended to afford
respondent an opportunity to collaterally attack his criminal
convictions. A quote from the report of Dr. Gross, who was
retained as respondent's expert, illustrates this point:
. . . Mr. Tonzola's Manic Depression so
impaired his will that his otherwise
purposeful actions are excusable. And though
Mr. Tonzola may have been aware that the
funds misappropriated were client funds and
that the utilization of those funds in the
manner he did was unauthorized, his cognitive
and cerebral processes concerning the nature,
quality and, most significantly, consequences
of those acts were totally impaired.
Respondent's reliance upon In re Greenberg,
155 N.J. 138
(1998), and In re Jacob,
95 N.J. 132 (1984), to support his
mitigation claim, is misplaced. The relevant statement in Jacob,
that competent medical proofs can demonstrate that a respondent
has “suffered a loss of competency, comprehension or will of a
magnitude that could excuse egregious misconduct that was clearly
knowing, volitional and purposeful,” Id. at 137, which was
repeated in Greenberg, supra, 155 N.J. at 150, arose in the
context of a respondent who had not been convicted of knowing
misappropriation of client or law firm funds. Even in those
cases, the Court did not find the respondents had met the Jacob
burden. Additionally, the disciplinary proceedings in those
cases were not based on Rule 1:20-13(c)(2), as in the present
case. More on point are In re Goldberg,
109 N.J. 163 (1988), and
In re Gipson,
103 N.J. 75 (1986), cases involving convictions for
theft of client funds where the criminal convictions formed the
basis for the disciplinary proceedings. There, too, the Jacob
mitigation defense was rejected. Indeed, no decision of this
Court ever afforded Jacob-type relief in a Wilson
misappropriation case. The misappropriations involved in In re
Cornisch,
98 N.J. 500, 501, 511 (1985), predated the decision in
Wilson and there was no criminal conviction for theft.
The inquiry contemplated by Jacob ordinarily is not
warranted after a criminal conviction for theft of client or law
firm funds that form the basis of disciplinary proceedings
because of the Wilson automatic disbarment rule. The purpose of
a mitigation inquiry is to “determine if circumstances exist that
would justify [the Court] in concluding that the attorney had
suffered such a loss of comprehension that 'he was unable to
comprehend the nature of his act or lacked the capacity to form
the requisite intent.'” In re Steinhoff,
114 N.J. 268, 272 (1989)
(citation omitted). A judgment of conviction forecloses further
consideration of mental culpability for the offense for which a
respondent stands convicted.
In a Wilson-type case, the purpose of the diminished
capacity evidence in a Jacob proceeding is to show the loss of
competency, comprehension, or will. That is simply another way
of attacking the essential mental culpability element of
purposeful theft of client funds contrary to Rule 1:20-13(c)(2).
Jacob and its progeny use a “M'Naghten-type” diminished capacity
standard.See footnote 11 I prefer a bright-line rule holding that Jacob has no
application when the disciplinary proceedings are based on a
judgment of conviction for theft of client or law firm funds.
The rule that I endorse adheres to the dictates of Rule 1:20
13(c)(2), disallowing mitigation evidence that is inconsistent
with one or more of the essential elements of the offenses for
which a respondent has been convicted. The requisite mental
states for theft and forgery were conceded by respondent when he
acknowledged that he purposely committed the offenses. Neither
of his guilty pleas nor the judgment of convictions has been
vacated. Consequently, I would invoke both judicial estoppel and
quasi-estoppel to enforce Rule 1:20-13(c)(2), thereby preventing
respondent from blowing both “hot and cold” by taking a position
in the disciplinary proceedings that is inconsistent with his
criminal convictions. In other words, I would simply enforce the
Court's own Rule 1:20-13(c)(2). I empathize with respondent
and his family's plight. But as the Disciplinary Review Board
observed:
[T]his matter arose by way of a motion for
final discipline following respondent's
guilty plea to forgery of a judge's signature
and a theft of client funds by unlawfully
taking. By virtue of the guilty plea,
respondent admitted that his conduct was
knowing and purposeful. To permit him now to
argue that he lacked the requisite cognitive
ability to commit those crimes would not only
violate R. 1:20-13(c), but would also cause
the public to question the integrity of the
attorney disciplinary system and its goal of
protecting the public. Rightfully, the
public would be unable to reconcile one
court's acceptance of respondent's guilty
plea and the factual basis for it, with a
subsequent finding in a disciplinary context
by a separate court system that he lacked the
requisite cognitive abilities to be held
responsible for his actions and would,
therefore, not be disbarred.
The record clearly and convincingly establishes that respondent knowingly misappropriated client funds, which triggers the Wilson automatic disbarment rule. He also poisoned the well of justice with the forgery. In re Verdiramo, 96 N.J. 183, 186 (1984). Hence, I join the Court's judgment to disbar respondent.
NO. D-44 SEPTEMBER TERM 1996
Application for
Disposition Disbar
Decided January 28, 2000
Order returnable
Opinion by PER CURIAM
Footnote: 1 1 The English common-law M'Naghten Rule evolved as our insanity rule. State v. White, 27 N.J. 158, 164 (1958). That rule was essentially codified in the New Jersey Code of Criminal Justice (Code), that currently defines insanity as “laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.” N.J.S.A. 2C:4-1. The Code also recognizes that, although a person may not have been insane at the time he or she committed a criminal act, that individual may have a diminished-capacity defense. N.J.S.A. 2C:4-2. It is a defense that will either excuse conduct otherwise criminal, by negating the essential mental culpability element of an offense defined in N.J.S.A. 2C:2-2, or reduce the degree of the offense charged. State v. Breakiron, 108 N.J. 591, 603 (1987).