In re Broeck, Docket No. DRB 19-236
| Decision Date | 23 January 2020 |
| Docket Number | Docket No. DRB 19-236 |
| Parties | In the Matter of David Andrew Ten Broeck An Attorney at Law |
| Court | New Jersey Supreme Court |
Disciplinary Review Board
Decision
Ryan J. Moriarty appeared on behalf of the Office of Attorney Ethics.
Marc David Garfinkle appeared on behalf of respondent.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a disciplinary stipulation between the Office of Attorney Ethics (OAE) and respondent, who admitted to having violated RPC 8.4(b) (). For the reasons set forth below, we determine to impose a censure.
Respondent earned admission to the New Jersey bar in 2010 and to the New York bar in 2012. He has no history of discipline in New Jersey. During the relevant period, he was engaged in the practice of law in Westfield, New Jersey.
The June 7, 2019 stipulation sets forth the following facts in support of respondent's admitted ethics violation. From January 2011 until August 2018, the Montvale Police Department in Bergen County, New Jersey employed respondent as a police officer and as a detective. During the same timeframe, respondent practiced law, on a per diem basis, in association with a law firm.
According to respondent, during his college years, he abused cocaine and several other illicit substances. After college, he ceased abusing drugs. However, in the summer of 2017, after reconnecting with a college friend, he again began abusing cocaine. No one pressured respondent to use cocaine. Rather, he did so because he was "lured by old feelings of euphoria, or perhaps nostalgia." For nearly a year thereafter, respondent continued to abuse cocaine "regularly although not frequently, by [him]self."
On the night of May 12, 2018, through the early morning hours of the next day, respondent bought and used cocaine, despite being scheduled to work a patrol shift for the Montvale Police Department that very morning. Due to his cocaine use, respondent failed to report to work. Consequently, respondent's supervisor called him to determine his location. During this telephone call, respondent made excuses for his absence, and told his supervisor that he would shortly report to work. Rather than go to work, however, respondent turned off his phone and stayed at home. Because he failed to report to work or to respond to subsequent calls, respondent's supervisor contacted respondent's local police department, in Cranford, and requested that the Cranford police make direct contact with him.
The Cranford Police Department dispatched several officers to respondent's residence. When the officers arrived at respondent's apartment, he was sweating profusely and exhibited a blank stare, flushed face, and grayish skin. Respondent claimed that his appearance was due to an overnight argument with his girlfriend, whom he claimed was still inside. Based on respondent's appearance and the alleged fight, the officers became concerned about respondent's girlfriend's well-being and conducted a search of the apartment to locate her.
While searching the residence, the officers discovered that respondent's bedroom door was locked. The officers requested access to determine whether his girlfriend was inside. After entering the bedroom, the officers observed the following items on the dresser next to the bedroom door: (a) three empty plastic wrappers containing suspected cocaine residue; (b) one clear plastic wrapper containing suspected cocaine; (c) one knotted plastic wrapper containing suspected cocaine; (d) one blue "Post-it" note rolled into a straw with suspected cocaine residue; and (e) one debit card with suspected cocaine residue.
Based on their observations, the officers arrested respondent and advised him of his constitutional rights. Respondent waived his rights and admitted that he had used two-and-one-half bags of cocaine throughout the night and had last ingested cocaine forty-five minutes before the officers' arrival. The officers also confirmed that respondent's girlfriend was visiting her family out of state.
Accordingly, on May 13, 2018, respondent was arrested and released on a summons for possession of a controlled dangerous substance (CDS), cocaine, a third-degree crime, contrary to N.J.S.A. 2C:36-10(a)(1), and possession of drug paraphernalia, a disorderly persons offense, contrary to N.J.S.A. 2C:36-2. On May 31, 2018, respondent notified the OAE of his pending criminal charges.
On July 11, 2018, after a laboratory confirmed that two of the submitted items had tested positive for cocaine, respondent filed a pre-indictment application for admission into the Union County Pretrial Intervention Program (PTI). On August 29, 2018, in the Superior Court of New Jersey, Criminal Division, Union County, respondent waived his constitutional right to have his case presented to a grand jury, but entered a not guilty plea to an accusation charging him with one count of third-degree possession of a CDS. The prosecutor's office accepted respondent into PTI and the proceedings were postponed for twelve months.
As part of entry into PTI, respondent was required to fulfill conditions, including: (a) completion of sixty hours of community service; (b) random urine monitoring; (c) payment of fees totaling $1,225; (d) continued treatment; and (e) attendance of twelve-step program meetings. On March 1, 2019, because respondent had successfully completed all conditions of the PTI program, the criminal charges against him were dismissed.
Following his arrest, respondent engaged in substantial rehabilitative efforts, including: participating in the New Jersey Lawyers Assistance Program; attending the Counseling Center at Clark, LLC; submitting negative urinalysis results; actively and regularly providing blood donations to the New York BloodCenter; regularly attending self-help recovery meetings for current and former law enforcement officers and lawyers; and traveling to self-help recovery meetings to speak about his experience and recovery. The Montvale Police Department terminated respondent's employment.
In the stipulation, the OAE recommended a three-month suspension, or other such discipline as we deem appropriate. Respondent requested a censure.
Following a review of the record, we are satisfied that the facts contained in the stipulation clearly and convincingly support the finding that respondent violated RPC 8.4(b).
Specifically, respondent stipulated that he knowingly and unlawfully possessed and used cocaine, contrary to N.J.S.A. 2C:35-10(a)(1). Although he completed PTI and the charges against him were dismissed, a criminal conviction is not necessary to establish a violation of RPC 8.4(b). See In re Hasbrouck, 140 N.J. 162, 166-67 (1995). Offenses that evidence ethics shortcomings, although not committed in the attorney's professional capacity, may, nevertheless, warrant discipline. Id. at 167. The obligation of an attorney to maintain the high standard of conduct required by a member of the bar applies even to activities that may not directly involve the practice of law or affect his or her clients. In re Schaffer, 140 N.J. 148, 156 (1995).
In sum, respondent violated RPC 8.4(b). The sole issue left for our determination is the appropriate quantum of discipline to be imposed for respondent's misconduct.
In In re McLaughlin, 105 N.J. 457 (1987), the Court imposed a reprimand on three individuals who, at the time of their offenses, were serving as law clerks to members of the Judiciary and had possessed small amounts of cocaine. The Court imposed only a reprimand because it was a case of first impression. The Court cautioned, however, that, in the future, the Court would impose a suspension for similar conduct.
Based on McLaughlin, a three-month suspension generally has been the measure of discipline for possession of CDS. See In re Musto, 152 N.J. 165, 174 (1997). A three-month suspension has been imposed on attorneys found to possess cocaine. In re Holland, 194 N.J. 165 (2008); In re McKeon, 185 N.J. 247 (2005); In re Avrigian, 175 N.J. 452 (2003); and In re Nixon, 122 N.J. 290 (1991).
Similarly, attorneys who possessed combinations of CDS and drug paraphernalia also have received three-month suspensions. See In re Sarmiento, 194 N.J. 164 (2008) (ecstasy); In re Kervick, 174 N.J. 377 (2002) (); In re Ahrens, 167 N.J. 601 (2001) (); In re Karwell, 131 N.J. 396 (1993) ().
Regardless of the nature of the criminal offense, the quantum of discipline typically is enhanced when the attorney is a member of law enforcement or a public servant at the time of the RPC 8.4(b) violation. See, e.g., In re Asbell 135 N.J. 446, 456 (1994) (); In re Bailey, 200 N.J. 277 (2009) (). Attorneys in the role of a government representative are held to a higher standard. See In re Magid, 139 N.J. 449, 455 (1995) ( ).
The Court rarely has departed downward from the standard three-month suspension. Such a departure has occurred only when the attorney has established significant rehabilitation and remorse. See, e.g., In re Zem, 142 N.J. 638 (1995); In re Filomeno, 190 N.J. 579 (2007); and In re Simone, 201 N.J. 10 (2009). The Court also has imposed lesser discipline when it has determined thata suspension would undermine the substantial rehabilitation efforts that the attorney had achieved....
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