Matter of Howard

673 A.2d 800, 143 N.J. 526, 1996 N.J. LEXIS 357
CourtSupreme Court of New Jersey
DecidedApril 12, 1996
StatusPublished
Cited by10 cases

This text of 673 A.2d 800 (Matter of Howard) 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 Howard, 673 A.2d 800, 143 N.J. 526, 1996 N.J. LEXIS 357 (N.J. 1996).

Opinion

PER CURIAM.

This disciplinary proceeding arose 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 or Board), seeking discipline of Olivia C. Howard pursuant to Rule 1:20 — 6(c)(2)(i). Respondent was convicted of death by auto in violation of N.J.S.A 2C:ll-5, following an incident in which she struck and killed her husband with her automobile. The DRB recommended that no discipline be imposed in this case. We granted the OAE’s petition for review, and reach a different conclusion.

*528 I

Respondent was admitted to the New Jersey bar in 1981. Her husband, Frank Howard, also a member of the bar, was a police officer in Newark who maintained a part-time legal practice. The two shared “staff, space, resources and income” at their law office in East Orange, New Jersey.

We rely principally on the DRB’s decision for a description of the events leading up to Mr. Howard’s death. On the afternoon of July 3, 1989, Olivia and Frank Howard met to discuss some of their financial difficulties. With her husband in the passenger seat, respondent drove to a construction site where she parked her car so they could talk. An argument ensued, leading Mr. Howard to put the gear shift into reverse, exit the vehicle and walk away. When respondent backed up the car, the passenger door “flew open” and became caught in a fence surrounding the construction site. The top hinge of the car door broke, causing the door to drag as respondent drove.

Respondent then put the car in forward and drove alongside her husband, following his pace. As she drove, she pleaded with him to assist her in securing the door. He ignored her pleas and continued walking. After following Mr. Howard the wrong way down two one-way streets, respondent finally pulled into the driveway of a health clinic and came to a stop when her husband approached the front of the car. She exited the car and once again sought his assistance. The two were unable to resolve their dispute at that time. Respondent then “got back into the car ... hit the gas ... and reached for the car door at the same time____” When she felt something under the car, she “slammed on the brakes with both of [her] feet----” Mr. Howard was wedged underneath the car. He died later that day as a result of his injuries.

A Bergen County grand jury charged respondent with murder. At trial, respondent testified that she never intended to strike Frank Howard with her car. She maintained that her husband stepped in front of the car as she was accelerating, and that she *529 did not see him because she was reaching over in an attempt to close the damaged passenger door. A jury acquitted respondent of murder, but found her guilty of the lesser included offense of death by auto in violation of N.J.S.A 2C:ll-5. 1 The trial judge sentenced respondent to five years probation, 500 hours of community service, $17,500 in fines and penalties, and revoked her driving privileges for two years. The Appellate Division affirmed her conviction.

On August 2, 1994, the Office of Attorney Ethics filed a motion for final discipline with the DRB, recommending a term of suspension. After conducting a hearing, the DRB unanimously dismissed the OAE’s motion. The Board reasoned that respondent’s criminal offense did not relate to the practice of law, and did not adversely reflect on her honesty, trustworthiness, or fitness as a lawyer. The Board then concluded that it could not “impose discipline for an offense that the disciplinary system was not established to deter.” We granted the OAE’s petition for review of the DRB’s decision.

II

“A criminal conviction is conclusive evidence of guilt in a disciplinary proceeding.” In re Magid, 139 N.J. 449, 451, 655 A.2d 916 (1995); In re Pleva, 106 N.J. 637, 639, 525 A.2d 1104 (1987). While we will not conduct an independent evaluation of the evidence to ascertain respondent’s guilt, we do consider the underlying facts to determine the appropriate level of discipline to be imposed. Magid, supra, 139 N.J. at 452, 655 A.2d 916.

The goal in a disciplinary proceeding is to protect the public, not to punish attorneys. In re Rutledge, 101 N.J. 493, 498, 502 A.2d 569 (1986). “[T]he principal reason for discipline is to *530 preserve the confidence of the public in the integrity and trustworthiness of lawyers in general.” In re Wilson, 81 N.J. 451, 456, 409 A.2d 1153 (1979). Punishment, in contrast, is within the province of the criminal courts. Thus, even in victimless crimes, we have found it necessary to suspend attorneys who have engaged in conduct that transgressed societal norms established by our Legislature. In re Schaffer, 140 N.J. 148, 161, 657 A.2d 871 (1995).

The “privilege to practice law is founded on high moral character.” Id. at 155, 657 A.2d 871. Any misconduct, whether professional or private, that reveals a lack of good character essential for an attorney constitutes a basis for discipline. Magid, supra, 139 N.J. at 452, 655 A.2d 916; In re Bock, 128 N.J. 270, 274, 607 A.2d 1307 (1992). An attorney’s obligation to maintain a high standard of conduct has been deemed to apply to activities that may not directly involve the practice of law or affect his or her clients. Schaffer, supra, 140 N.J. at 156, 657 A.2d 871 (citations omitted) (imposing discipline on attorney who admitted to possessing and being under the influence of cocaine). The rationale for this rule is

not a desire to supervise the private lives of attorneys but rather that the character of a [person] is single and hence misconduct revealing a deficiency is not less compelling because the attorney was not wearing his [or her] professional mantle at the time____ [I]f misbehavior persuades a [person] of normal sensibilities that the attorney lacks capacity to discharge his [or her] professional duties with honor and integrity, the public must be protected from [such an attorney].'
[Magid, supra, 139 N.J. at 452-53, 655 A.2d 916 (quoting

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Bluebook (online)
673 A.2d 800, 143 N.J. 526, 1996 N.J. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-howard-nj-1996.