In Re Convery

765 A.2d 724, 166 N.J. 298, 2001 N.J. LEXIS 23

• Court: Supreme Court of New Jersey
• Decided: February 2, 2001
• Status: Published

Opinions

PER CURIAM.

This 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”). The OAE moved for final discipline against respondent Samuel V. Convery, Jr. pursuant to Rule 1:20-13(c)(2). The OAE based its motion on respondent’s conviction for promising employment or other benefit as consideration for any “political activity” in violation of 18 U.S.C.A. § 600 (the Hatch Act). The conviction constitutes a violation of RPC 8.4(b), which 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.” Five out of seven participating members of the DRB recommended that respondent be reprimanded on the basis of his guilty plea to the federal misdemeanor of promising employment or other benefit for political activity. Two members dissented and voted to withhold decision and to require the OAE and respondent to submit supplemental briefs on the scope of respondent’s unethical conduct and the appropriate discipline.

Under the circumstances of this ease, we conclude that a six-month suspension is the appropriate sanction.

I

The limited record reveals the following facts. In 1969, respondent was admitted to the New Jersey bar. He has no prior disciplinary history. At the time that the ethics complaint was filed, respondent practiced with the law firm of Convery & Convery, P.C., together with his two sons. A Democrat, respondent had previously served as the Mayor of the Township of Edison from 1991 to 1993, and prior to his term as Mayor he had been counsel to the Board of Adjustment. In his capacity as Mayor, respondent was well acquainted with Robert F. Engel (Robert F.), a Republican member of the Edison Town Council. During respondent’s term as Mayor, a Freeholder had requested that respondent support the effort of Robert J. Engel (Robert J.), the son of Robert F., in obtaining employment with Middlesex County. Respondent agreed to do so. The County’s public-property division thereafter hired Robert J. as an at-will employee.

In July 1995, Shobna Patel retained respondent’s law firm to represent Pooja M., Inc. (“Pooja”) in connection with its purchase and development of real estate in Edison Township. Pooja needed to obtain zoning variances to develop what had been church property. Pooja intended to develop the property as a banquet hall, with a restaurant, a bar, offices, an art gallery and a retail store. The proposed uses required Pooja to obtain use and bulk zoning variances and approval of preliminary site plans from the Township of Edison Board of Adjustment. Respondent’s firm was to receive a $100,000 legal fee for the representation, regardless of the success or failure of the project. Respondent’s Pre-Sentence Investigation Report reveals that, because of Pooja’s financial difficulties, Pooja was unable to pay respondent’s entire fee until the project was approved and completed.

In February 1996, respondent filed an application with the Edison Board of Adjustment for variances and site plan approval on behalf of Pooja. There was considerable public opposition to Pooja’s project at the first public hearing on April 16,1996. In his guilty plea to the federal misdemeanor charge, respondent admitted that in August 1996 he promised Robert F. and his son, Robert J., that he would assist the son in obtaining permanent employment with Middlesex County in exchange for the Engels’ assistance in obtaining favorable votes for the Pooja project from two zoning board members. At that time, Robert J. worked for Middlesex county as an at-will employee. Respondent acknowledged that, for purposes of the federal charges, his actions in obtaining the Engels’ assistance and the members’ votes on the project constituted a form of political activity. However, respondent explained that he considered his actions to be permissible lobbying.

Respondent also admitted that after the April 1996 zoning board hearing, he became aware that Gerard Kenny, a member of the Edison Board of Adjustment, had been quoted in a local newspaper article commenting critically about the Pooja project and expressing an intention to vote against it. Kenny then worked as an ironworker out of Ironworkers’ Local Union 373 in Perth Amboy. At the time, John Wade was the business agent of Ironworkers’ Local Union 373, and usually determined which union members to send out on union jobs. Respondent admitted that he sent a facsimile of the newspaper article, quoting Kenny about the Pooja project, to John Wade, and that he spoke with Wade by telephone about the article. Respondent’s Pre-Sentence Investigation Report indicates that after speaking with respondent, Wade visited Kenny at a union job site and showed him a photocopy of the newspaper article. He told Kenny that he should reconsider his opposition to the project because he “was biting the hand that feeds him.” However, none of the facts relating to Wade’s visit to Kenny formed the basis of defendant’s federal plea and, in his objections to the pre-sentence report, respondent denied having asked Wade to make any such comments to Kenny.

Moreover, respondent’s Pre-Sentence Investigation Report reveals that, during the summer of 1996, Robert F. told Kenny that respondent would assist Kenny in obtaining a job with the County of Middlesex or the State of New Jersey if Kenny agreed to vote for the Pooja project. The Board of Adjustment’s final vote on the Pooja project was scheduled for August 20,1996, while Robert F. was at the Republican National Convention. As a result, Robert F. asked his son, Robert J., to meet with Kenny to confirm that he would vote for the Pooja project. During late August, while his father was at the Republican convention, Robert J. spoke to respondent and then met with Kenny to confirm that Kenny would vote for the Pooja project. On August 20, 1996 Kenny voted to approve the Pooja project.

In April 1998, respondent pled guilty to the federal misdemean- or of promising employment or other benefit for political activity in violation of 18 U.S.C.A. § 600. Respondent was sentenced to three years probation. As conditions of probation, he was confined to his home for three months, required to perform five hundred hours of community service and fined $5,000. Subsequently, the OAE filed its Motion For Final Discipline against respondent before the Disciplinary Review Board seeking to suspend respondent for six months based solely on his general-intent misdemeanor conviction under 18 U.S.C.A § 600. The DRB determined to grant the OAE’s motion for final discipline, but a majority concluded that respondent’s misdemeanor conviction warranted only a reprimand. The DRB acknowledged that in most federal misdemeanor cases the Court has imposed terms of suspension ranging from three to six months. However, the DRB relied on In re Rushfield, 142 N.J. 617, 667 A.2d 684 (1995), for the proposition that where compelling mitigating circumstances exist, a reprimand is sufficient punishment for an attorney who pleads guilty to a federal misdemeanor.

The majority of the DRB found that compelling mitigating circumstances were present in this case. The DRB noted that during his career respondent has been actively involved in professional, civic and charitable organizations. In addition, his family, friends and clients have attested to his good character and the fact that, except for this incident, he has led an exemplary life. The majority of the DRB also considered the fact that respondent has agreed to perform community service in excess of what the federal court had required and that he has shown genuine remorse for his misconduct. Accordingly, a majority of the DRB was convinced that a reprimand sufficiently addressed both the disciplinary system’s goals of protecting the public and the nature of respondent’s offense. Two members dissented, stressing that respondent’s misconduct, although a misdemeanor under federal law, would support a conviction of bribery under New Jersey law, a second-degree offense.

II

A criminal conviction of an attorney is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20 — 13(e)(1); In re Howard, 143 N.J. 526, 529, 673 A.2d 800 (1996); In re Kinnear, 105 N.J. 391, 393, 522 A.2d 414 (1987). Respondent’s guilty plea to the federal misdemeanor of promising employment or other benefit for political activity constituted a violation of RPC 8.4(b) because it relates to the commission of a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer.

Once an attorney is convicted of a crime, the sole issue to be considered is the extent of discipline to be imposed. R. 1:20-13(c)(2); In re Zauber, 122 N.J. 87, 92, 583 A.2d 1140 (1991); Kinnear, supra, 105 N.J. at 393, 522 A.2d 414; In re Goldberg, 105 N.J. 278, 280, 520 A.2d 1147 (1987). In assessing the measure of discipline to be imposed, the background facts and circumstances of the case drawn from pre-sentence reports, plea agreements, and other reliable documentation, are relevant. In re Spina, 121 N.J. 378, 389-90, 580 A.2d 262 (1990). Even a minor violation of the law by an attorney tends to lessen public confidence in the legal profession as a whole. In re Hasbrouck, 152 N.J. 366, 371, 705 A.2d 350 (1998) (citing In re Addonizio, 95 N.J. 121, 124, 469 A.2d 492 (1984)). The commission of a criminal act by an attorney also constitutes a violation of that attorney’s duty to uphold and honor the law. In re Bricker, 90 N.J. 6, 11, 446 A.2d 1195 (1982). Pursuant to RPC 8.4(b), for an attorney to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” constitutes professional misconduct.

Determining the appropriate discipline for criminal misconduct by an attorney requires 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 [or her] prior trustworthy conduct, and general good conduct.” In re Lunetta, 118 N.J. 443, 445-46, 572 A.2d 586 (1989). That respondent’s crime directly involved the practice of law is undisputed. He improperly attempted to influence a zoning board’s decision in favor of his client, Pooja, by promising Robert F. and his son, Robert J., that he would assist the son in obtaining permanent employment with Middlesex County in exchange for the Engels’ assistance in obtaining favorable votes from two zoning board members on the Pooja project. Respondent pled guilty to the Hatch Act offense of promising a benefit in exchange for political activity. Specifically, respondent admitted that he offered Robert J. a permanent job with Middle-sex County if Robert J. and his father, Robert F., would use their political influence to obtain the favorable votes of two zoning board members for respondent’s client’s project. The Hatch Act states in part as follows:

[w]hoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.

[18 U.S.C.A § 600.]

Respondent, as an experienced attorney and ex-counsel to the Edison Board of Adjustment, should have known that influencing two members of a zoning board, a quasi-judicial tribunal, through third parties (the Engels) to vote to grant a variance for the benefit of respondent’s client was highly improper.

Zoning boards receive their power directly from the Legislature by virtue of statutory grants of authority contained in the Municipal Land Use Law. N.J.S.A. 40:55D-70. New Jersey courts have recognized that Boards of Adjustment are discretionary governmental administrative agencies that exercise quasi-judicial functions. 165 Augusta Street, Inc. v. Collins, 9 N.J. 259, 266, 87 A.2d 889 (1952); Schmidt v. Board of Adjustment of Newark, 9 N.J. 405, 420, 88 A.2d 607 (1952); see also Siegel v. Board of Adjustment of Newark, 137 N.J.L. 423, 425, 60 A.2d 626 (1948) (stating that Board of Adjustment is quasi-judicial body whose action must not be arbitrary and uncontrolled). A Board of Adjustment’s decision is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable. New Brunswick Cellular Telephone Co. v. Borough of South Plainfield Bd. of Adjustment, 160 N.J. 1, 13, 733 A.2d 442 (1999) (citations omitted). Most importantly, New Jersey courts have also emphasized that in granting a zoning variance a Board of Adjustment may not base its decisions on facts that are not included in the record. Kramer v. Board of Adjustment of Sea Girt, 45 N.J. 268, 284, 212 A.2d 153 (1965); Russell v. Tenafly Bd. of Adjustment, 31 N.J. 58, 66, 155 A.2d 83 (1959) (stating that “[B]oard [of Adjustment] is not entitled to act on facts not part of the record”).

Before us respondent’s counsel contended that lobbying influential political or public officials in local, county or state government to solicit support for meritorious projects is an accepted practice, and that respondent assumed that his conduct in seeking Engel’s assistance with the Board of Adjustment fell within the parameters of permissible lobbying efforts. We reject that contention. Putting to one side the promise of a benefit to the Engels for their assistance, respondent attempted to influence members of the Edison Board of Adjustment to cast votes in the Pooja variance matter on the basis of their political relationship with the Engels, rather than on the basis of the evidence adduced at the hearing before the Board of Adjustment and the applicable legal principles that govern a Board of Adjustment’s exercise of its authority in variance matters. The attempt by respondent to compromise the standards that govern Board of Adjustment action in variance matters, and to inject political influence into the Board’s deliberative process, was manifestly improper.

We conclude that respondent must be subject to significant discipline for his conduct.

Ill

The principal goal of disciplinary proceedings is to foster and preserve public confidence in the bar, In re Hasbrouck, 152 N.J. 366, 371, 705 A.2d 350 (1998), and to protect the public from attorneys who do not meet the high standards of professional responsibility. In re Stout, 75 N.J. 321, 325, 382 A.2d 630 (1978). In determining the appropriate sanction in attorney disciplinary matters, we consider the seriousness of the ethical infractions, the circumstances surrounding the misconduct, and the respondent’s record and reputation. In re Whitmore, 117 N.J. 472, 479, 569 A.2d 252 (1990); Stout, supra, 75 N.J. at 325, 382 A.2d 630.

In In re Verdiramo, 96 N.J. 183, 186, 475 A.2d 45 (1984), the Court made clear the seriousness of the transgressions that directly subvert and corrupt the administration of justice. In re Verdiramo, 96 N.J. 183, 186, 475 A.2d 45 (1984). We therefore stated that “ethical misconduct ... involving the commission of crimes that directly poison the well of justice [ ] is deserving of severe sanctions and would ordinarily require disbarment.” Id. at 186, 475 A.2d 45.

The OAE relies on cases in which the Court has ruled that attorneys who commit crimes in the course of attempting to benefit a friend, a client or themselves should receive substantial suspensions. In re Bateman, 132 N.J. 297, 297-98, 625 A.2d 467 (1993) (suspending attorney for two years for mail fraud, conspiracy and making false statement on loan application to assist his client); In re Gassaro, 124 N.J. 395, 395-96, 591 A.2d 276 (1991) (suspending attorney for two years following conviction of conspiracy to defraud Internal Revenue Service on behalf of his father-in-law); In re Chung, 147 N.J. 559, 559-60, 688 A.2d 1043 (1997) (suspending attorney for eighteen months following guilty plea to federal information charging him with personally receiving more than $10,000 and failing to report cash transaction); In re Silverman, 80 N.J. 489, 491, 404 A.2d 301 (1979) (suspending attorney for eighteen months following guilty plea to federal indictment charging him with obstruction of justice for having filed false statement in answer in bankruptcy proceeding to favor his client). We also note that in matters involving federal misdemeanor charges, the Court often has imposed terms of suspension. See In re Leahey, 118 N.J. 578, 573 A.2d 155 (1990) (suspending attorney for willful failure to file income tax returns); In re Di Biasi, 102 N.J. 152, 506 A.2d 719 (1986) (suspending attorney for three months for misapplication of bank funds).

We recognize that significant mitigating circumstances exist in this case. During his career respondent has been actively involved in professional, civic and charitable organizations; his family, friends and clients have attested to his good character; he has agreed to perform community service in excess of that required by the federal court; he has shown remorse for his conduct; and except for this incident, he has an unblemished disciplinary record. We are also aware that respondent already has been subjected to substantial punishment for his actions. He was sentenced to three years probation, confined to his home for three months, required to perform five hundred hours of community service and to pay a fine of $5,000.

Our dissenting colleagues assert that the six months suspension the court imposes is too severe, noting that respondent “did believe that he was engaged in legal lobbying” and that “the DRB and the OAE credited his belief.” Post 166 N.J. at 312, 765 A.2d at 731. They would suspend the imposition of a suspension, place respondent on probation for the term of the suspension and require respondent, as a condition of probation, to perform 1000 hours of community service with credit for the community service performed pursuant to the federal court sentence. In response, we note the sharply worded dissenting opinion, joined by two members of the Disciplinary Review Board, that asserts that respondent’s conduct, as described in the pre-sentence report submitted to the District Court, would have been sufficient to sustain a conviction under New Jersey’s bribery statute, N.J.S.A. 2C:27-2(b), a second-degree offense. Although we express no view on that issue based on the state of the record before us, we are fully satisfied that the seriousness of respondent’s offense mandated discipline no less severe than that imposed by the Court, and would warrant more stringent discipline were it not for the mitigating circumstances presented.

Respondent’s ethical transgressions were serious, and his actions compromised the integrity of the Edison Board of Adjustment’s disposition of the variance application of respondent’s client. We conclude that respondent’s conduct warrants a six-months suspension from the practice of law. Respondent is also ordered to reimburse the Disciplinary Oversight Committee for appropriate administrative costs.