Matter of Di Biasi

506 A.2d 719, 102 N.J. 152, 1986 N.J. LEXIS 880
CourtSupreme Court of New Jersey
DecidedApril 2, 1986
StatusPublished
Cited by19 cases

This text of 506 A.2d 719 (Matter of Di Biasi) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Di Biasi, 506 A.2d 719, 102 N.J. 152, 1986 N.J. LEXIS 880 (N.J. 1986).

Opinion

PER CURIAM.

Respondent entered a plea of guilty to a federal accusation of misapplication of bank funds in violation of 18 U.S.C. *153 § 657, an offense characterized as a misdemeanor under federal law. The court sentenced respondent to a suspended term of one year, three-years probation, and imposed a fine of $1,000.

Subsequently, the Office of Attorney Ethics made a Motion for Final Discipline Based Upon a Criminal Conviction pursuant to R. 1:20-6(b)(2)(i). Following oral argument, the Disciplinary Review Board agreed that respondent had engaged in illegal conduct that adversely reflected on his fitness to practice law and recommended that respondent be suspended. The members of the Board were not unanimous in their recommendation, the individual votes varying from one year to no suspension at all.

Our independent review of the record leads us to the conclusion that respondent has been guilty of unethical conduct in the matter charged.

First, we accept a criminal conviction as conclusive evidence of guilt in disciplinary proceedings. In re Rosen, 88 N.J. 1, 3 (1981). The underlying facts of the conviction are relevant to the determination of the appropriate discipline to be imposed. Id. at 3.

The circumstances of respondent’s involvement are set forth in the record. He was the closing attorney for a partnership with respect to a $2.1 million mortgage loan covering a three-story building in Union City, New Jersey. A lease had been prepared by an accountant for the partnership that purported to show that a portion of the third floor was under a binding lease. This lease had been submitted to the lender before the respondent entered the matter.

Prior to the closing, the respondent learned that the lease was false. Nonetheless, he yielded to the request of his client not to reveal this fact to the lender on the grounds that the lease would soon become reality and that the lender was, in any event, relying upon the personal guarantee of the principals of the partnership.

*154 The principles that we apply in cases of criminal convictions are as follows:

Our goal in these hearings is to protect the interests of the public and the bar while giving due consideration to the interests of the individual involved. In re Mischlich, 60 N.J. [590] at 593. Similar to a sentencing judge in a criminal matter, we take into consideration many factors in determining the proper discipline to be imposed. Cf. N.J.S.A. 2C:44-1. We consider the nature and severity of the crime, and whether the crime is related to the practice of law. We consider “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. at 593 (citations omitted); see In re Rosen, 88 N.J. [1] at 3; In re Mirabelli, 79 N.J. [597] at 601; In re La Duca, 62 N.J. [133] at 136. Similarly, we consider evidence of an attorney’s good reputation, his prior trustworthy professional conduct, and his general good character. In re Mischlich, 60 N.J. at 593.
[In re Infinito, 94 N.J. 50, 57 (1983).]

In applying these principles to the underlying facts, we find that the relationship that gave rise to the offense did arise directly from a lawyer-client relationship and the offense was related to the practice of law. The crime is defined as a “serious crime” in our rules. R. 1:20-6(a)(2) defines “serious crime” as “any crime of the first or second degree as defined by the New Jersey Code of Criminal Justice * * * or any felony of the United States * * * or of any state * * In addition, we define as “serious crimes” any crime involving “interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, [or] theft * * V’ Id.

Although this definition is contained in a provision dealing with automatic temporary suspension of attorneys convicted of crimes, it reflects our belief that crimes of dishonesty touch upon a central trait of character. In the context of application for admission to the bar, we have concluded that a bar applicant “must possess a certain set of traits- — honesty and truthfulness, trustworthiness and reliability, and a professional commitment to the judicial process and the administration of justice.” Application of Matthews, 94 N.J. 59, 77 (1983). These we described as the “fundamental norms that control the professional *155 and personal behavior of those who as attorneys undertake to be officers of the court.” Id. at 78. We have long and firmly held that “ ‘[i]n the legal profession, there must be a reverence for the truth.’ ” Application of Jenkins, 94 N.J. 458, 470 (1983) (quoting In re Hyra, 15 N.J. 252, 254 (1954)). Thus, we recently suspended, for a period of three years, an attorney who had pled guilty to making a misrepresentation on an affidavit filed in a cause. In re Kushner, 101 N.J. 397 (1986); see also In re Labendz, 95 N.J. 273, 274-75 (1984) (attempt to obtain mortgage for client from federally-insured lender through fraudulent alteration of real estate contract warrants one-year suspension). And when a crime of dishonesty touches upon the administration of justice, the offense is deserving of severe sanctions and would ordinarily require disbarment. In re Verdiramo, 96 N.J. 183, 186 (1984) (citing In re Hughes, 90 N.J. 32 (1982)).

In setting the appropriate discipline in this case, there are, several factors, however, that mitigate in respondent’s favor. First, although this crime was committed in 1978 and the plea taken in 1980, the disciplinary disposition has taken six years. This is due to no fault of respondent and involves unusual circumstances over which he had no control. In addition, during that time, he .was suspended from practice before the United States District Court for the District of New Jersey for a 14-month period as a result of the judgment of conviction entered in that court. Finally, we take note of the relative youth and inexperience of this attorney at the time of these events. Although he had been admitted to practice for five years, he had little experience in handling closings and was assigned, on an emergent basis, the substantial responsibility of closing a transaction of $2.1 million. A review of the record demonstrates that some of the principals involved in this transaction were unprincipled to an extreme degree and their representations were a significant factor in contributing to this result.

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506 A.2d 719, 102 N.J. 152, 1986 N.J. LEXIS 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-di-biasi-nj-1986.