Hughes, Matter of

• Decision Date: 29 June 1982
• Citation: 446 A.2d 1208,90 N.J. 32
• Parties: In the Matter of John E. HUGHES, Jr., An Attorney at Law.
• Court: New Jersey Supreme Court

Page 32

90 N.J. 32

446 A.2d 1208

In the Matter of John E. HUGHES, Jr., An Attorney at Law.

Supreme Court of New Jersey.

Argued Jan. 26, 1982.

Decided June 29, 1982.

David E. Johnson, Jr., Trenton, for complainant Disciplinary Review Board (Colette A. Coolbaugh, Trenton, Secretary, attorney).

Joseph G. Dooley, Jr., West Orange, for respondent.

PER CURIAM.

Attorney John E. Hughes has pleaded guilty to federal criminal charges of bribing a public official and state charges of forging public documents. These extremely serious infractions demand professional discipline. At the same time, the highly unusual nature of the events surrounding these illegal acts prompts us to examine the factual circumstances with great care.

In the federal proceeding, Hughes pleaded guilty to a charge of violating 18 U.S.C. § 201(f). He paid $1,000 to an Internal Revenue Service agent to induce him to remain silent about possible criminal violations by Hughes. In the state proceedings, Hughes pleaded guilty to altering and falsifying records of the Essex County Register to indicate that certain federal tax liens against his parents had been released, in violation of N.J.S.A. 2A:136-1. He also pleaded guilty to uttering and publishing as true to the Essex County Register two false and forged Certificates of Release of Federal Tax Lien in the name of his parents, totalling more than $12,000, in violation of N.J.S.A. 2A:109-1.

The federal guilty plea resulted in a suspended 18 month sentence and two years probation commencing September 18, 1979. Hughes received identical sentences for each count of the state indictment to which he pleaded guilty. The state probation ran concurrent with the federal probation.

Both the federal and state matters arose from the same incidents. Hughes practiced law with his father from 1967 through February of 1976. At that time, his father pleaded guilty to failure to file and pay certain federal taxes and was suspended from the practice of law for six months. Following his father's death in November of 1976, Hughes discovered that his father had converted money from a client's estate that should have been used to pay transfer inheritance taxes. Because of this conversion, the estate owed a substantial sum to the State in unpaid taxes.

Although he had no legal duty to do so, Hughes personally paid nearly $40,000 over a period of time to the State to satisfy the estate's tax liability. His alleged motive was to avoid the adverse publicity for his family that might result from claims by the estate against the Clients' Security Fund arising from his father's misappropriation.

While still making those payments to the State, Hughes learned of certain federal tax liens on real estate then owned by his mother just as she was about to close on the sale of the property. Those liens had been imposed because his father had failed to pay certain federal taxes. Although he had no legal obligation to do so, Hughes wanted to pay off the tax liens himself. His motive was to protect his mother from knowledge of the extent of his father's wrongdoing.

Since he did not have the resources to pay off both the tax lien and the estate taxes, Hughes sought to arrange with the Internal Revenue Service for either settlement of the tax liens or a schedule of payment. When he was unable to do so, he forged the Federal Tax Lien Releases. Hughes claims that it was his intent to reinstate the liens and pay them off when he was able to do so. The result of his filing the forged releases was that any purchaser from his mother would be unaware of the lien. The purchaser, however, might someday find that the title to the property was not free and clear.

Some time later, the Internal Revenue Service sent an agent equipped with a listening device to investigate the case. The agent recorded a $1,000 bribe offer by Hughes so the agent would ignore the forged releases. Hughes subsequently paid $1,000 to the agent.

On the basis of the two criminal convictions, the District V Ethics Committee (Essex County) found that Hughes had violated DR1-102(A)(1), (3), (4), (5), (6), and DR7-102(A)(3), (4), (5), and (8). Upon a review of the full record, the Disciplinary Review Board determined that the Committee's conclusions were supported by clear and convincing evidence.

We accept a criminal conviction as conclusive evidence of guilt in disciplinary proceedings. In re Rosen, 88 N.J. 1, 3, 438 A.2d 316 (1981); In re Mirabelli, 79 N.J. 597, 602, 401 A.2d 1090 (1979). Although we will not retry the question of guilt, the underlying facts of the conviction are relevant to the determination of the appropriate discipline to be imposed. In re Rosen, 88 N.J. at 3, 438 A.2d 316.

Bribery of a public official and forgery of public documents are among the more serious offenses an attorney can commit. They strike at the heart of the attorney's honesty and trustworthiness as an officer of the court. Without more, these acts demonstrate unfitness to practice law. For these reasons the Disciplinary Review Board recommended that Hughes be disbarred.

In setting the appropriate discipline we are not interested in punishing the attorney. That is the province of the criminal law. The primary purpose of professional discipline is

to protect the public against members of the bar who are unworthy of the trust and confidence essential to the relationship of attorney and client. [In re Sears, 71 N.J. 175, 200, 364 A.2d 777 (1976) ]

Accord, In re Stout, 75 N.J. 321, 325, 382 A.2d 630 (1978). We are careful to guard the public against attorneys likely to commit dishonest acts or to betray the trust that their positions demand.

Because our goal is protection of the public rather than punishment of the attorney, mitigating factors are relevant to determining whether the public interest requires the ultimate sanction of disbarment. Extenuating circumstances may demonstrate that there is little or no likelihood that the attorney will repeat the transgressions. In re Sears, 71 N.J. at 199-201, 364 A.2d 777; In re Stout, 75 N.J. at 325, 382 A.2d 630; In re Mirabelli, 79 N.J. at 602, 401 A.2d 1090. In such cases, we may sometimes achieve the public interest without having to impose the harshest sanction.

However, even if it is unlikely that the attorney will repeat the misconduct, certain acts by attorneys so impugn the integrity of the legal system that disbarment is the only appropriate means to restore public confidence in it. Bribery of a public official is surely one of those cases. It has devastating consequences to the bar, the bench, and the public, and especially the public's confidence in the legal system. No sanction short of disbarment will suffice to repair the damage.

We recognize that Hughes did not commit the acts to achieve any personal gain. On the contrary, he had no legal obligation, and perhaps even no generally accepted moral responsibility, to pay for his father's offenses. Yet he chose to undergo the hardship of paying almost $40,000 of his personal earnings to the State, rather than allowing the loss to lie on the defrauded client or the public. While the forgery allowed his mother to sell the property free of the tax liens, he received no immediate benefit from the forgery itself or the subsequent bribe. Both his diligence in paying back his father's tax obligations and his criminal acts were motivated by his desire to save his mother from the shock and embarrassment of further knowledge of his father's wrongdoing. While these facts in no way detract from the seriousness of the offenses, they do reflect a highly atypical backdrop to such criminal actions.

Human beings sometimes find it difficult to resist doing anything to help their family. We recognize the nobility of those sentiments. Yet we impose limits on what people can do in that regard. We do not applaud, for example, individuals who steal for their families. Many misappropriation cases come before this Court. In most of those cases, the respondent is not a vicious person at all but rather one who is the victim of difficult circumstances. Attorneys steal from their clients, often not to become rich, but simply to make ends meet. Would it be farfetched to imagine that they do it for the sake of their families? Perhaps they seek to prevent their families from being evicted; perhaps the funds are necessary to care for their husbands or wives or children. Yet we have not hesitated, in such cases, to disbar the attorney who steals from the client. We do not condemn the individual who faces exigent circumstances. We do protect the public.

While mitigating circumstances might sometimes cause us to order a less drastic sanction than disbarment in a bribery case, the situation here does not warrant anything less. That the respondent ultimately paid off a lien for which he had no legal responsibility and that he paid back taxes for which he had no legal obligation are much to his credit. However, his actions did create a victim. The purchaser of his mother's home thought that the title was free and clear of any encumbrances. Yet, as a result of respondent's fraud and forgery, the purchaser actually occupied a home which had a $12,000 lien on it. While it is true that respondent ultimately paid it off out of his own pocket, it is equally true that he placed that innocent family in a position of substantial insecurity. What would have happened if respondent had not been able to pay off the lien? That innocent family might have been faced with the prospect of losing either their home or their life savings to pay off the lien. It hardly seems noble to risk the lives and fortunes of an innocent family that you have never met to prevent a member of your own family from suffering the humiliation of learning about tax evasion.

In recent years, no attorneys have been disbarred for forgery or misrepresentation to a public official when the act was committed for reasons other than personal...