Litwin, Matter of

• Decision Date: 20 November 1986
• Citation: 104 N.J. 362,517 A.2d 378
• Parties: In the Matter of David S. LITWIN, An Attorney at Law.
• Court: New Jersey Supreme Court

Page 362

104 N.J. 362

517 A.2d 378

In the Matter of David S. LITWIN, An Attorney at Law.

Supreme Court of New Jersey.

Argued Sept. 9, 1986.

Decided Nov. 20, 1986.

Robyn M. Hill, Deputy Ethics Counsel, Trenton, on behalf of Office of Attorney Ethics.

Burton L. Eichler, Roseland, for respondent (Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, attorneys; Burton L. Eichler and Todd C. Brower, on brief).

PER CURIAM.

Respondent entered a plea of guilty to a charge of aggravated arson, N.J.S.A. 2C:17-1(a)(2), a second-degree crime. This disciplinary proceeding arose from a motion for final discipline based upon a criminal conviction against respondent that was filed with the Disciplinary Review Board (DRB) by the Office of Attorney Ethics requesting that respondent be disbarred. Respondent entered into a consent order temporarily suspending him from the practice of law effective July 31, 1981. The DRB has recommended, by a vote of 6-2, that respondent be suspended from the practice of law for five years retroactive to July 31, 1981. Our independent review of the record leads us to accept that recommendation.

I

Respondent was admitted to the New Jersey Bar in 1968. He served as an attorney in both the private and public sectors until 1978. While he was actively engaged in the practice of law, he was never the subject of any disciplinary action or ethical complaint.

In 1978 respondent left the practice of law and entered a partnership to operate a car wash in Newark. During the following year, Mr. Litwin on his own, commenced operation of a second car wash in Plainfield, New Jersey, which car wash was the subject of respondent's act of arson in 1981. The DRB accurately sets forth the relevant facts surrounding this act in its Decision and Recommendation:

On July 30, 1981 he entered his Plainfield car wash building about 10 p.m. and set fire to the building. Respondent had decided to burn down his business because he had reached a point where

I saw the world as having a choice for myself or burn the place down, as my perception of what would happen was very confused, I totally lost objectivity, perceptivity....

Respondent was arrested that same night and was hospitalized. His condition was diagnosed as severe depression with suicidal tendencies and personality disorder.

Respondent was sentenced on March 19, 1982. His attorney stated that Respondent would be institutionalized for at least 18 months in an in-patient program in Kansas. He had not submitted any insurance claim, nor had he received any benefit from his act. Respondent told the court that his "motivation was completely irrational. It was not a sane act." The sentencing judge stated that

I find that about that time you became preoccupied with the thought of arson and eventially [sic] lost the ability to control your thoughts and actions.

You were lead [sic] to deliberately set a fire to that business property. It was not an incident where that was done for the traditional buck or out of a vendetta to any other party or for financial gain to yourself.

The judge agreed with the prosecutor that no useful purpose would be served by incarcerating Respondent due to Respondent's need for long term psychoanalytic care. The judge placed Respondent on five years probation with the condition he undergo psychiatric treatment until the court approved his release. Respondent also was ordered to pay $7,000 in restitution.

Respondent entered into a consent order temporarily suspending him from the practice effective July 31, 1981. See 93 N.J. 593 (1983).

Respondent was discharged as an in-patient on July 18, 1984 but continues with out-patient therapy. He now resides in Kansas and has no intention of returning to New Jersey or the private practice of law.

II

A criminal conviction of an attorney is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-6(b)(1). Once an attorney is convicted, the sole issue to be considered is the measure of discipline to be imposed. In re Kushner, 101 N.J. 397, 400, 502 A.2d 32 (1986); In re Addonizio, 95 N.J. 121, 123-24, 469 A.2d 492 (1984); In re Infinito, 94 N.J. 50, 56, 462 A.2d 160 (1983); 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); In re Mischlich, 60 N.J. 590, 593, 292 A.2d 23 (1977). In disciplinary hearings, the Court's goal is to protect the interests of the public and the bar while giving due consideration to the interests of the individual involved. In re Infinito, supra, 94 N.J. at 57, 462 A.2d 160; In re Mischlich, supra, 60 N.J. at 593, 292 A.2d 23. The appropriateness of the discipline depends on many factors. We consider the nature and severity of the crime and whether the crime is related to the practice of law. Because a criminal conviction is given conclusive effect, we do not make an independent examination of the underlying facts supporting the conviction. We do consider, however, "evidence which does not dispute the crime but which shows mitigating circumstances [relevant to] the issue of whether the nature of the 'conviction merits discipline, and if so, the extent thereof.' " In re Infinito, supra, 94 N.J. at 57, 462 A.2d 160 (quoting In re Mischlich, 60 N.J. at 593, 292 A.2d 23) (citations omitted). ¹ Similarly, we deem relevant such facts as respondent's good reputation, prior trustworthy professional conduct, and general good character.

In re Kushner, supra, 101 N.J. 397, 400-01, 502 A.2d 32 (1986); In re Infinito, supra, 94 N.J. at 57, 462 A.2d 160; In re Mischlich, 60 N.J. at 593, 292 A.2d 23.

III

Each disciplinary action is factually different and must be judged on its merits. 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 had engaged in illegal conduct that adversely reflects on his fitness to practice law. DR 1-102(A)(3). ²

Prior to this offense respondent had an unblemished professional reputation. This crime, respondent's sole transgression, is serious. He set fire to his own business, causing property damage to the owners of the building. No one was injured in the fire.

In recommending that respondent be suspended from practice for five years, the DRB considered the following mitigating factors:

Important in assessing this case is Respondent's mental condition at the time of the incident. A review of this element is not to retry the criminal charge but to determine the appropriate attorney discipline. See In re Rosen, 88 N.J. 1, 3 (1981) citing In re Mirabelli, 79 N.J. 597, 602 (1979); In re LaDuca, 62 N.J. 133, 136 (1973). Among the recommended mitigating factors by the American Bar Association are "personal or emotional problems" and "physical or mental disability or impairment." See ABA Standards for Imposing Lawyer Sanctions; (final draft, December 1985,) at 21. These mitigating factors are not to excuse the attorney's misconduct but to understand the reasons for it. Rather than ignore such factors, the Board believes the better practice is to consider them and weigh them against aggravating factors. This assessment would consider the interest of the public, the bar and the individual involved. In re Kushner, supra [101 N.J. at 400 502 A.2d at 33]; In re Infinito, supra, 94 N.J. at 57 ; In re Mischlich, 60 N.J. 590, 593 (1972).

In mitigation Respondent submitted certifications by psychiatrists as well as himself relating to his mental condition at the time of the incident. Respondent explained that when he decided to attempt the arson, he felt "absolutely invincible, if not almost invisible." He realized that he had been observed at the scene but this did not deter him. Respondent further stated that while he felt he was very ill at the time, he accepts responsibility for his actions and is remorseful. The psychiatric certifications conclude that Respondent had suffered from acute depression with suicidal tendencies. Respondent was described as being in a "disordered state of mind of psychotic proportions." The sentencing judge, who had the benefit of a presentence report which the petitioner did not include among the moving papers to this Board, concluded that Respondent had lost the ability to control his thoughts and actions. The Board agrees with the criminal court that Respondent's mental condition at the time of the crime is a mitigating factor which must be considered....

According to his psychiatrist, Respondent has been successfully rehabilitated. In addition, he has performed volunteer work in a program in Kansas for abused and neglected children and is now a volunteer member of that program's board of directors. He also was appointed by the Governor of Kansas to the Kansas Commission on Child Support. Respondent does not intend to return to New Jersey or actively practice law. He does, however, intend to seek admission to the Kansas bar so he can advance in his employment. He has been a member of the bar of this state since 1968 and had practiced law for ten years before going into business. His legal career included a clerkship with the Supreme Court, substantial service with the State Attorney General's Office and appointment as a hearing officer for the Department of Civil Service. He has no prior disciplinary history. Restitution as ordered by the criminal court was made and the civil claims against Respondent have been settled. No claim to collect insurance was ever filed by Respondent.

In determining the appropriate discipline, we, as did the DRB and the sentencing Court, deem it appropriate to consider respondent's mental condition at the time of the offense. ³ We do not consider this evidence to relitigate his guilt. There is no dispute that he committed the crime of aggravated arson. Instead, we consider such evidence as a mitigating factor to be weighed with the other mitigating and aggravating factors, as we determine the appropriate discipline that will...