Musto, Matter of

• Decision Date: 19 December 1997
• Citation: 152 N.J. 165,704 A.2d 6
• Parties: In the Matter of Victor M. MUSTO, an Attorney at Law.
• Court: New Jersey Supreme Court

Page 165

152 N.J. 165

704 A.2d 6

In the Matter of Victor M. MUSTO, an Attorney at Law.

Supreme Court of New Jersey.

Argued Oct. 21, 1997.

Decided Dec. 19, 1997.

Richard J. Engelhardt, Assistant Ethics Counsel, on behalf of the Office of Attorney Ethics.

William B. Gallagher, Jr., Asbury Park, for respondent (Klitzman & Gallagher, attorneys; Victor M. Musto, pro se on the brief).

PER CURIAM.

This attorney disciplinary proceeding arises from a motion for final discipline, based upon a criminal conviction, filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB) pursuant to Rule 1:20-13(c). The DRB concurred in the OAE recommendation that Victor M. Musto (respondent) be disbarred from the practice of law. The motion was based on respondent's guilty pleas in federal and state courts to conspiracy to distribute cocaine; possession of methyl ecgonine, a metabolite of cocaine; conspiracy to possess heroin and cocaine; and possession of heroin and cocaine. RPC 8.4(b) states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." In ethical proceedings, the conviction of a criminal offense conclusively establishes guilt of the offense charged. In re Lunetta, 118 N.J. 443, 445, 572 A.2d 586 (1989) (citing R. 1:20-6(b)(1)). In assessing the measure of discipline to be imposed, we may consider background facts and circumstances. In re Spina, 121 N.J. 378, 389, 580 A.2d 262 (1990). We draw those background facts and circumstances from presentence reports, plea agreements, and other reliable documentation surrounding the conviction.

I

From the record in this case, the following background facts emerge. Respondent was admitted to the bar in 1983. He used drugs sporadically until 1991, when he began using heroin and cocaine heavily. He attributes his drug use to stress related to work, marital problems, his son's cerebral palsy, and his father's sickness.

At the time, respondent was practicing law in Asbury Park, New Jersey. His law partners were reportedly unaware of his drug use. Ultimately, respondent admitted his addiction to his employer and entered Clear Brook Manor, in Pennsylvania, for rehabilitation. Although he completed the program, he did not participate in a recommended follow-up plan and relapsed in 1992. In March 1993, when respondent increasingly missed deadlines and court appearances, his law firm accepted his resignation. Yet, despite his drug use, respondent was never the subject of any ethics complaints. His former law firm reported that "nothing in his addictions and his self infliction of harm [ ] caused any problems or difficulty to any clients."

In 1993, the FBI arranged for respondent's friend (whom we refer to as CW, the cooperating witness) to make a drug buy from respondent. Allegedly, CW became an FBI informant after having been arrested trying to import cocaine into the United States. The DRB report recites that local law enforcement agents told the FBI that respondent was selling cocaine and using the profits to purchase heroin. However, respondent states that CW was the source of any information concerning him. He claims that CW untruthfully told the FBI that respondent was selling cocaine because she had promised, as part of her arrangement, to produce evidence of corruption in New Jersey among public officials and learned professionals. Respondent contends that he was the only person whom CW implicated.

Pursuant to plan, CW began calling respondent regularly and stopping by his home. CW gained respondent's trust because CW and respondent had previously used drugs together. CW told respondent that she no longer had drug connections in New Jersey and needed his help to get cocaine. Although he purchased and used drugs for his own consumption, respondent was reluctant to provide CW with drugs. As she became more insistent and his own heroin addiction worsened, he agreed to act as her contact.

CW furnished the cash, and respondent purchased the following amounts of cocaine for her on three occasions: one ounce on June 29, 1993, four ounces on August 3, 1993, and two ounces on August 12, 1993. Respondent's three purchases for CW totalled $5,800. Respondent kept approximately $200 of the monies furnished by CW to buy heroin for himself. At the plea hearing for the federal charge, respondent gave the following factual basis for his plea of conspiracy to sell cocaine:

Q. Now, Mr. Musto, did you agree with FNU--I'm sure that means first name unknown--Medina and others to distribute up to 7 ounces of cocaine between June 29, 1993 and August 12, 1993 in Asbury Park, New Jersey and elsewhere?

A. Yes.

Q. Did you agree to distribute cocaine knowingly and intentionally?

A. Yes.

Q. Did you agree to distribute cocaine for money?

A. ... Originally I was hoping to make some money on it and I think in my statement eventually to the FBI it was very little money involved, but the idea was that I was going to make some money.

Q. That's what I mean, were you engaged in this activity with the intention at the time to try to profit from it?

A. Yes, I was.

The FBI conducted a surveillance of each of these transactions, recorded the conversations, and furnished the marked money used by CW to buy the cocaine. On August 12, 1993, the FBI seized respondent. He was questioned for five hours. He admitted selling cocaine. The FBI also asked him to act as an informant for political corruption, fraud, and drug operations in Monmouth County.

Respondent relapsed again. On October 22, 1993, local police found trace elements of cocaine in the pocket of respondent's jacket while searching patrons at an Asbury Park tavern incident to a search warrant. Respondent was arrested and released.

On October 25, 1993, local police stopped and arrested respondent while he was driving his car with two passengers. The two passengers had purchased and were in possession of heroin and cocaine that respondent intended to use. On October 27, 1993, respondent entered the Jersey Shore Addiction Service for rehabilitation. He was discharged on November 27, 1993.

After respondent's arrests on the state charges, federal authorities indicted respondent on January 6, 1994. The four-count indictment charged him with one count of conspiracy to distribute cocaine, in violation of 21 U.S.C.A. § 846, and three counts of distribution of cocaine, in violation of 21 U.S.C.A. § 841(a)(1). He pled guilty to the one count of conspiracy.

On February 14, 1994, state authorities indicted respondent for possession of methyl ecgonine, in violation of N.J.S.A. 2C:35-10a(1), for the October 22, 1993 tavern incident. On March 21, 1994, a Monmouth County Grand Jury indicted respondent for conspiracy to possess heroin and cocaine, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10, and possession of heroin and cocaine, in violation of N.J.S.A. 2C:35-10a(1), for the October 25, 1993 incident.

As part of pre-trial services on the federal indictment, respondent entered Discovery House, a substance abuse facility in Marlboro, New Jersey, for ninety days from February to May 1994. Upon discharge, he entered aftercare with Prevention Specialists. When respondent relapsed in June 1994, he re-entered Discovery House for two weeks.

On September 23, 1994, pursuant to a plea agreement, respondent pled guilty to the federal charge of conspiracy to distribute cocaine. On April 7, 1995, a federal court sentenced respondent to a six-month custodial term and three-years of supervised release. Because respondent had cooperated with the FBI in its Monmouth County investigations, the federal court significantly reduced respondent's sentence under the Federal Sentencing Guidelines. ¹

Shortly after sentencing, respondent relapsed again. On April 19, 1995, local police observed respondent purchasing drugs. As respondent drove away with another man, the police attempted to pull him over, and respondent attempted to evade the police. The passenger threw the drugs (heroin) out of the window at respondent's request.

On April 25, 1995, respondent was indicted for possession of heroin and cocaine, eluding an officer, tampering with physical evidence, and hindering apprehension or prosecution.

The same day, pursuant to a plea agreement, respondent pled guilty to possession of methyl ecgonine, in violation of N.J.S.A. 2C:35-10a(1); conspiracy to possess heroin and cocaine, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10; and possession of heroin and cocaine, in violation of N.J.S.A. 2C:35-10a(1). The remaining charges were dismissed. On April 28, 1995, the court sentenced respondent to three concurrent four-year terms of imprisonment and ordered him to pay other penalties and fees.

Respondent served his federal sentence from May 1995 to October 27, 1995 during which time he completed an intensive drug program and attended Alcoholics Anonymous (AA) meetings. Respondent served his state sentence from October 27, 1995 until September 11, 1996. He attended both AA and Narcotics Anonymous (NA) meetings during that time.

Respondent is currently on federal probation and will remain on that status until October 1998. Respondent has been attending both group and individual counseling three times weekly with Prevention Specialists. Likewise, respondent has random urine drug screening twice weekly. The results of all of respondent's tests have been negative. He also has an AA sponsor and attends AA meetings at least three times a week.

Respondent did not notify OAE of the charges against him, as required by Rule 1:20-13(a)(1). Respondent's arrest was discovered through a newspaper article. On June 15, 1995, respondent was temporarily suspended pursuant to Rule 1:20-13(b). In re Musto, 140 N.J. 520, 659 A.2d 469 (1995). The suspension remains in effect.

II

A criminal conviction is conclusive evidence of guilt in a...