Schaffer, Matter of

Decision Date12 May 1995
Citation657 A.2d 871,140 N.J. 148
PartiesIn the Matter of Steven M. SCHAFFER, An Attorney at Law.
CourtNew Jersey Supreme Court

John McGill, III, Deputy Ethics Counsel, for Office of Atty. Ethics.

Steven M. Schaffer, pro se.

PER CURIAM.

In this attorney-disciplinary case, respondent, Steven M. Schaffer, was arrested and charged for the unlawful possession of cocaine, the unlawful possession of drug paraphernalia, and being under the influence of cocaine. He ultimately admitted that he had committed those offenses. He also admitted that his conduct constitutes a violation of the Rules of Professional Conduct, specifically RPC 8.4(b), in that his knowing and intentional possession and use of illegal drugs was a criminal act that reflects adversely on his fitness to practice law. Respondent waived the filing of a formal ethics complaint and waived a formal hearing before the District Ethics Committee. He agreed that the matter should proceed directly before the Disciplinary Review Board (Board or DRB) for its review, for the sole purpose of determining the extent of final discipline to be imposed. The matter was presented to the DRB on a stipulation between respondent and the Office of Attorney Ethics (OAE).

I

Because the ethics violations are admitted, the focus of this disciplinary proceeding is on the extent of discipline. In re Goldberg, 105 N.J. 278, 280, 520 A.2d 1147 (1987); In re Kaufman, 104 N.J. 509, 510, 518 A.2d 185 (1986); In re Kushner, 101 N.J. 397, 400, 502 A.2d 32 (1986). Determining the appropriate measure of discipline, however, is extremely fact-sensitive. In re Kinnear, 105 N.J. 391, 395, 522 A.2d 414 (1987); In re Litwin, 104 N.J. 362, 366, 517 A.2d 378 (1986).

Respondent was admitted to the New Jersey Bar in 1986. He had an office in Fort Lee, Bergen County, New Jersey. The DRB recites the details of respondent's offenses according to the stipulation, viz:

On August 5, 1991, at approximately 11:50 p.m., Fort Lee police officers observed an automobile being operated at a speed lower than that of the surrounding traffic. The automobile was operated by respondent. After disregarding a stop sign and making a right turn without signaling, the automobile came to a stop. Respondent exited the automobile and entered the office of the Toll Gate Motel. One of the police officers parked his car next to respondent's and observed him in the motel office. Respondent did not register at the motel. When he came out, the police officers stopped him and identified themselves.

It was immediately apparent to the police officers that respondent was under the influence of a controlled dangerous substance (CDS). Respondent was advised that he was being placed under arrest for being unlawfully under the influence of a CDS and was also advised of his rights. Respondent then began to back up, at which time the officers grabbed his shirt to prevent him from fleeing. At this juncture, two small plastic vials fell to the floor. One of the police officers seized the two items. The officer suspected them to be CDS. Respondent told one of the officers to wait a minute, placed his right hand in the pocket of his pants and retrieved a glass crack (cocaine) pipe, which he handed to one of the officers. Respondent then stated to the police officers that, if they arrested him, they would be ruining his life. He assured them that, if they let him go, in the morning he would admit himself into an in-patient program for his drug dependency. He further stated to the officers that he was an attorney and asked that the officers release him from custody. His requests were denied. At that point, respondent admitted that he had been using crack cocaine all night and had left his apartment to prevent a problem with his mother. He further stated that he was beginning to feel the full effects of the cocaine. His face became pale and he requested that he be permitted to sit down because he feared that he would pass out. The police Command Center was called and medical assistance was requested. Respondent was transported to Englewood Hospital for observation and for medical treatment for his admitted abuse of the CDS crack cocaine.

While at Englewood Hospital, one of the police officers located a plastic transparent vial on the hospital bed on which respondent was lying. The vial contained a whitish chalk substance, which the officer suspected to be CDS. The officer had observed the item lying on top of the bed sheets, while in the process of escorting respondent to the bathroom. During the time that respondent was observed on the hospital bed, the officer saw him go into his pants several times, near his groin area. The officer also took a urine sample from respondent at the hospital.

Respondent was charged with unlawful possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1), a third degree crime. He was also charged with unlawful possession of drug paraphernalia, in violation of N.J.S.A. 2C:36-2, and with being unlawfully under the influence of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10b, both disorderly persons offenses. In addition, respondent was charged with the motor vehicle offense of possession of a CDS in a motor vehicle, in violation of N.J.S.A. 39:4-49.1.

On February 20, 1992, respondent appeared before the municipal court and applied for a conditional discharge under N.J.S.A. 2C:36A-1. The municipal court placed respondent on probation for a period of six months. On March 20, 1992, respondent was accepted into the Pre-Trial Intervention Program (PTI). On October 6, 1992, after respondent satisfied the terms and conditions of the PTI program, the complaints against respondent were dismissed, pursuant to N.J.S.A. 2C:36A-1. As noted, respondent admitted the commission of the offenses, seeking only to preserve his right to be heard with respect to the extent of discipline.

On the issue of discipline respondent submitted evidence relating to his rehabilitation. The DRB noted the Certification and Medical Report of Arthur Greenberg, a certified psychiatric social worker and a clinician and supervisor at Metropolitan Medical Group, P.C., and the Director of Treatment for Adult and Adolescent Dual Diagnosis Units at Regent Hospital, in New York. According to Mr. Greenberg's certification, respondent was admitted to the Metropolitan Medical Group Outpatient Treatment Center at Regent Hospital on August 18, 1991, twelve days after his arrest. Mr. Greenberg stated:

Mr. Schaffer understood that his conduct, substance abuse, and arrest, had brought him to a point where he was about to lose all that he had worked for his entire life, including but not limited to, his license to practice law and career. Mr. Schaffer expressed clearly that he desired to engage in a program for treatment of alcohol and substance abuse to take the steps and action necessary to save his life and career.

The DRB found that from August 18, 1991 through January 1, 1993, respondent attended regularly scheduled group treatment twice a week, as well as an individual session in the hospital's substance abuse treatment program. Respondent also provided urine specimens two to three times a week as part of the treatment program. Further, he tested free from alcohol and all mood-altering substance during the treatment program. In addition, the urinalysis test results from the hospital's treatment program were provided to the supervisor of the Bergen County PTI program before the entry of the March 20, 1992 order of dismissal, as well as on April 27, 1992 and August 6, 1992.

Respondent, according to Mr. Greenberg's certification, also attended regular Alcoholics Anonymous ("AA") meetings from August 18, 1991 through January 1, 1993. Respondent, at the request of the DRB, submitted a certification stating that he has been drug-free from August 18, 1991 to date.

II

The privilege to practice law is founded on high moral character. In re La Duca, 62 N.J. 133, 140, 299 A.2d 405 (1973); In re Pennica, 36 N.J. 401, 433-34, 177 A.2d 721 (1962); In re Gavel, 22 N.J. 248, 266, 125 A.2d 696 (1956). Indeed, this requirement inheres in our paramount concern in the administration of attorney discipline for the maintenance of public confidence in the integrity of the bar. In re Kaufman, supra, 104 N.J. at 513, 518 A.2d 185. A criminal conviction evidences a fundamental disrespect for law and is conclusive evidence of an attorney's guilt in disciplinary proceedings, R. 1:20-6(b)(1); In re Kinnear, supra, 105 N.J. at 395, 522 A.2d 414.

Discipline for ethics transgressions is not obviated or lessened because an attorney's conduct did not involve the practice of law or arise from a lawyer/client relationship. Offenses that evidence ethical shortcomings, though not committed in the attorney's professional capacity, may, nevertheless, warrant discipline. In re Hasbrouck, 140 N.J. 162, 167, 657 A.2d 878 (1995) (citing In re Suchanoff, 93 N.J. 226, 230, 460 A.2d 642 (1983); In re Kinnear, supra, 105 N.J. at 395, 522 A.2d 414). Misconduct, whether private or professional in nature, that evidences a want of the good character and integrity that are essential for a person to engage in the practice of law constitutes a basis for discipline. In re Franklin, 71 N.J. 425, 429, 365 A.2d 1361 (1976); In re La Duca, supra, 62 N.J. at 140, 299 A.2d 405; In re Gavel, supra, 22 N.J. at 266, 125 A.2d 696. 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 Suchanoff, supra, 93 N.J. at 230, 460 A.2d 642; In re Rutledge, 101 N.J. 493, 498, 502 A.2d 569 (1986); In re Huber, 101 N.J. 1, 4, 499 A.2d 220 (1985); In re Franklin, supra, 71 N.J. at 429, 365 A.2d 1361. The Court's central concern in the administration of attorney discipline is not to punish the...

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