Goldberg, Matter of

• Decision Date: 20 February 1987
• Citation: 520 A.2d 1147,105 N.J. 278
• Parties: In the Matter of Gerald M. GOLDBERG, An Attorney at Law.
• Court: New Jersey Supreme Court

Page 278

105 N.J. 278

520 A.2d 1147

In the Matter of Gerald M. GOLDBERG, An Attorney at Law.

Supreme Court of New Jersey.

Argued Oct. 21, 1986.

Decided Feb. 20, 1987.

Robyn M. Hill, Deputy Ethics Counsel, for complainant Office of Attorney Ethics.

Thomas R. Curtin, for respondent (Curtin, Hubner & McKeon, attorneys).

PER CURIAM.

This attorney disciplinary matter is before the Court on a Decision and Recommendation of the Disciplinary Review Board (DRB or Board). The respondent, Gerald M. Goldberg, was indicted in December 1984 by a Federal Grand Jury. The indictment charged respondent and thirteen others with felony violations of Subchapters I and II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Pursuant to a plea agreement, on April 29, 1985, respondent entered a guilty plea to a one-count Superseding Information, which charged him with conspiracy to distribute, and to possess with intent to distribute, a Schedule II controlled substance, phenylacetone, ¹ contrary to 21 U.S.C.A. § 846. This offense is a federal felony, which carries a maximum penalty of five years imprisonment and/or a $15,000 fine.

On June 20, 1985, respondent was sentenced in the United States District Court for the District of New Jersey. He received a suspended sentence, was placed on three years probation and fined $5,000. As a special condition of probation, respondent was ordered to perform fifteen hours of community service per week during the first two years of his probation.

As a result of his criminal conviction respondent was temporarily suspended from the practice of law by this Court on September 5, 1985. This action was taken pursuant to Rule 1:20-6(a)(1), providing for the automatic temporary suspension of an attorney convicted of a serious crime, which includes "any felony of the United States...." R. 1:20-6(a)(2).

The DRB concluded that respondent's criminal conviction demonstrates that he has "engaged in illegal conduct that adversely reflects on his fitness to practice law" in violation of Disciplinary Rule 1-102(A)(3) and Rules of Professional Conduct 8.4(b), and further that he knowingly "engaged in conduct involving dishonesty, fraud, deceit or misrepresentation" in violation of Disciplinary Rule 1-102(A)(4) and Rules of Professional Conduct 8.4(c), and that he counselled and assisted his client in conduct that he knew to be illegal, criminal and fraudulent in violation of Disciplinary Rule 7-102(A)(7) and Rules of Professional Conduct 1.2(d). The Board unanimously recommended that respondent be disbarred.

I.

In disciplinary proceedings against an attorney, a criminal conviction is conclusive evidence of respondent's guilt. R. 1:20-6(b)(1); Matter of Coruzzi, 98 N.J. 77, 484 A.2d 667 (1984). Once an attorney has been convicted of a crime, the sole question remaining is the extent of discipline to be imposed. R. 1:20-6(b)(2)(ii); Matter of Infinito, 94 N.J. 50, 56, 462 A.2d 160 (1983).

Because a judgment of conviction is conclusive evidence of respondent's guilt, there is no need to make an independent examination of the underlying facts to ascertain guilt. Matter of Bricker, 90 N.J. 6, 10, 446 A.2d 1195 (1982). The underlying facts, however, may be relevant to the nature and extent of discipline to be imposed. In re Rosen, 88 N.J. 1, 438 A.2d 316 (1981).

We have independently examined the record and are satisfied that the DRB's determination of the underlying facts are supported by clear and convincing evidence. These are:

After respondent's law partnership ended in the fall of 1983, he began a solo practice. He unsuccessfully attempted to expand in the areas of business investments. During this time, his family financial pressures increased, in particular as a result of his daughter's serious and degenerative kidney disease. In 1984 a client introduced respondent to a friend, Stephen Michael Fleck, also known as Michael Bennett, who was interested in investing money in real estate and other businesses. Respondent claims he "foolishly closed his eyes" to the fact that Fleck was using an alias and that the substantial amount of cash Fleck had to invest was linked to drugs. Respondent and 13 others were later indicted by a federal grand jury in connection with violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

On April 30, 1985 respondent pleaded guilty to a superseding information which charged that between summer and October 11, 1984 he and others knowingly and intentionally conspired to distribute and possess with intent to distribute quantities of phenylacetone, a Schedule II controlled substance. The information further charged that a part of the conspiracy was that respondent would obtain false identification papers for Fleck, that Fleck would attempt to set up a trust arrangement to shield the proceeds of his narcotics transactions from detection and that respondent would travel to Switzerland to facilitate this arrangement. At the plea hearing, respondent acknowledged that he knowingly and intentionally joined and participated in the conspiracy.

When respondent was sentenced on June 20, 1985, the federal district court judge noted that this had been a three-year conspiracy during which defendants purchased nine tons of P2P, enough to make $200,000,000 worth of "speed" and that the conspiracy had profited at least three and a half million dollars at that point.

Our review of the record discloses that early in 1984, respondent became involved with one Fleck, who was the architect of a narcotics conspiracy. Respondent played a significant role in the criminal conspiracy. He counselled Fleck on narcotics negotiations with other co-defendants and was privy to information regarding Fleck's continuing attempts to obtain cocaine. Further, respondent took steps to invest and shield the proceeds of Fleck's narcotics transactions from detection. Respondent actually loaned Fleck his own driver's license to be able to copy various materials on the manufacture of cocaine at a New York library. By his own admission, respondent assisted a man whom he knew to be a fugitive and a drug dealer.

II.

These facts inform our decision as to the nature of discipline to be imposed. Discipline should reflect the gravity of the ethics transgression as counterbalanced by any relevant mitigating circumstances.

Respondent has admitted his active participation in a criminal narcotics conspiracy. Convictions of attorneys for crimes of an equally serious nature have resulted in disbarment in New Jersey. See In re Ivler, 86 N.J. 398, 431 A.2d 846 (1981); In re Warner, 43 N.J. 254, 203 A.2d 259 (1964). Other jurisdictions have concluded that an attorney's conviction on charges of conspiracy to distribute and to possess with intent to distribute a controlled dangerous substance requires disbarment. See Louisiana State Bar Ass'n v. Bensabat, 378 So.2d 380 (La.1979); Matter of Glasser, 53 A.D.2d 38, 385 N.Y.S.2d 86 (1976); In re Berlant, 458 Pa. 439, 328 A.2d 471, 474 (1974); Muniz v. State, 575 S.W.2d 408 (Tex.Civ.App.1978). Some have considered that such crimes are morally reprehensible and involve moral turpitude. E.g., Muniz v. State, supra, 575 S.W.2d 408. Others have stressed that such crimes "demonstrate such a grave lack of fidelity to the lawyer's duty to uphold and respect the laws as to require disbarment in order to protect the public and the administration of justice." Louisiana State Bar Ass'n v. Bensabat, supra, 378 So.2d at 383; Matter of Gorman, 269 Ind. 236, 379 N.E.2d 970, 972 (1978).

It must be emphasized that respondent actively utilized his professional license and his legal skills as an attorney to violate the law. It is obvious that where, as in this case, an attorney's criminal deeds directly involve his law practice, the misconduct is even more egregious in the disciplinary context....