Katz, Matter of
| Decision Date | 30 October 1987 |
| Citation | 109 N.J. 17,532 A.2d 729 |
| Parties | In the Matter of Steven L. KATZ, An Attorney at Law. |
| Court | New Jersey Supreme Court |
David E. Johnson, Jr., Director, Trenton, on behalf of Office of Attorney Ethics.
Dennis J. Oury, Fairview, for respondent.
This disciplinary proceeding arose from a motion filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB), seeking final discipline of respondent, Steven L. Katz, pursuant to Rule 1:20-6(b)(2)(i). The motion was based on respondent's plea of guilty to the misdemeanor of promoting prostitution in the fourth degree under § 230.20 of the New York Penal Law. The DRB found that respondent has engaged in illegal conduct that adversely reflects on his fitness to practice law and has recommended that he be suspended from the practice of law for two years. Our independent review of the record leads us to accept that recommendation.
The relevant facts are set forth in the Decision and Recommendation of the DRB.
Following his admission to the bar in 1971, respondent became involved in the family construction business. He has never practiced law.
In the 1970's respondent became a co-owner of a burlesque theatre on West 48th Street in the Times Square area of New York City. At first the theatre operated as a "striptease joint." Admission fees were charged. Beginning approximately in January 1981, a practice known as "Mardi Gras" was introduced. During that event, the female "performers" would mingle with the audience. The male patrons in the audience would be permitted to touch and fondle the performers. Additionally, oral/genital and digital/genital contact between the patrons and performers occurred, for which the performer received payment. Respondent and his partners did not share in these "tips" but they profited from the increased number of patrons, each of whom paid an admission fee.
On November 30, 1982, respondent and one of his partners, a member of the bar of the State of New York, were indicted for promoting and profiting from prostitution in the third degree, in violation of section 230.25 of the New York Penal Law. On February 14, 1983, both respondent and his partner completely divorced themselves from involvement in the enterprise.
At the conclusion of a jury trial in early 1984, the jury was hopelessly deadlocked. On May 14, 1984, respondent pleaded guilty to the fourth degree misdemeanor of promoting prostitution, in violation of section 230.20 of the New York Penal Law. On August 1, 1984, the court sentenced respondent to a conditional discharge with a $1,000 fine.
A criminal conviction of an attorney is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-6(b)(1). The extent of final discipline to be imposed is thus the sole issue to be determined in this proceeding. R. 1:20-6(b)(2)(ii); Matter of Goldberg, 105 N.J. 278, 280, 520 A.2d 1147 (1987); Matter of Litwin, 104 N.J. 362, 364-65, 517 A.2d 378 (1986); Matter of Tuso, 104 N.J. 59, 62, 514 A.2d 1311 (1986); Matter of Alosio, 99 N.J. 84, 88, 491 A.2d 628 (1985); In re Addonizio, 95 N.J. 121, 123, 469 A.2d 492 (1984).
In determining the appropriate discipline, we consider many factors, among them the nature and severity of the crime, whether the crime is related to the practice of law, the respondent's good reputation, prior trustworthy professional conduct and general good character. Matter of Goldberg, supra, 105 N.J. at 280, 520 A.2d 1147; Matter of Litwin, supra, 104 N.J. at 365, 517 A.2d 378; Matter of Tuso, supra, 104 N.J. at 62, 514 A.2d 1311; In re Mischlich, 60 N.J. 590, 593, 292 A.2d 23 (1972).
Based on our independent review of the record applying the above criteria to this case, we agree with the DRB that respondent's conviction establishes that he has engaged in illegal conduct that adversely reflects on his fitness to practice law, in violation of DR 1-102(A)(3). 1
Both respondent and his co-defendant, Frederick P. Cincotti, pleaded guilty to the promotion of prostitution in the fourth degree, a misdemeanor, in violation of § 230.20 of the New York Penal Law, 2 which provides in pertinent part,
[a] person is guilty of promoting prostitution in the fourth degree when he knowingly advances or profits from prostitution. [N.Y.Penal Law § 230.20 (McKinney 1980).]
We have found few cases involving disciplinary actions against attorneys involved in promoting prostitution. In New Jersey, the only reported disciplinary matter involving an attorney promoting prostitution is this Court's acceptance of an attorney's resignation from the bar with prejudice based in part on his conviction of promoting prostitution in Atlantic City. In re Rosenstein, 95 N.J. 626 (1984); see also Matter of Wolff, 490 A.2d 1118 (D.C.App.1985), vacated, 494 A.2d 932 (D.C.App.1985) on rehearing en banc, 511 A.2d 1047 (D.C.App.1986) (); In re Kosher, 61 Wash.2d 206, 377 P.2d 988, 990 (1963) (); In re Okin, 272 A.D. 607, 608, 73 N.Y.S.2d 861, 862 (App.Div.1947) ().
A case directly on point, of course, is Matter of Cincotti, 115 A.D.2d 24, 499 N.Y.S.2d 736 (App.Div. 1 Dept.1986), where respondent's co-defendant, Frederick P. Cincotti, who pleaded guilty to the same charge to which the respondent pleaded guilty in the present case, was suspended from the practice of law for two years. In its decision imposing discipline of Mr. Cincotti, the court stated the following language which is equally applicable to respondent:
[i]t is clear from an examination of the record in this matter that respondent simply fails to recognize that his misdeeds constitute more than a regrettable error in judgment. On the contrary, as a result of his personal involvement in day-to-day operations over several years, he certainly knew, or should have known, that he was not merely providing legitimate entertainment and that customers were being attracted to the theatre not by the artistic merits of the "performances" but rather by the sexual activities taking place there. Furthermore, while respondent may not have shared in the direct payments made to the "performers", he undoubtedly profited at the box office. Consequently, the nature of the misconduct at issue here is sufficiently serious to warrant the imposition of a suspension for a period of two years. [115 A.D.2d at 26, 499 N.Y.S.2d at 738.]
We have long recognized that the primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar. We consider the interests of the public, the bar, and the attorney. We judge each case on its own facts. Matter of Kushner, 101 N.J. 397, 400, 502 A.2d 32 (1986); In re Addonizio, supra, 95 N.J. at 123, 469 A.2d 492; In re Mischlich, supra, 60 N.J. at 593, 292 A.2d 23.
The DRB in its Decision and Recommendation acknowledged the following mitigating factors:
Several members of the community and business associates attested to respondent's good character. Moreover, respondent twice opened his home to troubled teenagers. Furthermore, respondent has never practiced as an attorney or held himself out to be a practicing attorney. Unlike his partner, a practicing government attorney for the State of New York, there is no public trust that was betrayed. Finally, upon learning that the activities occurring at the theatre were in fact criminal, respondent claims he promptly disassociated himself from the operation.
Nevertheless, it concluded that the aggravating factors outweigh the mitigating. We agree. Respondent's conduct was not an isolated act or an aberration. He was actively engaged in the operation of The Melody Burlesque Theatre ("the Melody"), which he visited a few days every week. He knew...
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SUP. CT. BD. OF PROF'L ETHICS v. Lyzenga
...for soliciting a prostitute to engage in sexual activity for hire was prejudicial to the administration of justice); In re Katz, 109 N.J. 17, 19, 532 A.2d 729, 730 (1987) (holding that attorney's misdemeanor conviction for promotion of prostitution reflected adversely on his fitness to prac......