Willis, Matter of

• Decision Date: 13 January 1989
• Citation: 114 N.J. 42,552 A.2d 979
• Parties: In the Matter of Peter R. WILLIS, An Attorney At Law.
• Court: New Jersey Supreme Court

Page 42

114 N.J. 42

552 A.2d 979

In the Matter of Peter R. WILLIS, An Attorney At Law.

Supreme Court of New Jersey.

Argued Sept. 14, 1988.

Decided Jan. 13, 1989.

William R. Wood, Deputy Ethics Counsel, for Office of Attorney ethics.

Alan J. Karcher, for respondent (Karcher, McDonnell, Rainone & Aftanski, Sayreville, attys.).

PER CURIAM.

Respondent comes before us in response to an order to show cause issued on the basis of the decision and recommendation of the Disciplinary Review Board (DRB) that he be suspended for one year. Although we agree with the decision that respondent's misconduct calls for a suspension, we conclude that a period of six months is the more appropriate discipline.

Initially the matter was heard by a special master, Julius Feinberg, a retired judge of the Superior Court, whose findings provided the basis for the presentment returned by the District VI (Hudson County) Ethics Committee. Thereafter the DRB found respondent guilty of (1) gross neglect in six separate matters involving clients during the years 1980 to 1984, and of a pattern of neglect in those matters; (2) misrepresentation to one client in 1982 by knowingly issuing a check drawn on insufficient funds; (3) a pattern of overreaching, consisting of charging unreasonable fees in eight separate matters; and (4) of the willful failure to file his 1981 federal income tax return, as evidenced by his conviction for that offense in the United States District Court for the District of New Jersey.

Our focus is on respondent's conviction for failing to file his income tax return and on his argument that this offense, like the other disciplinary infractions, was the product of his chemical substance abuse, including alcoholism. In this regard, the DRB found that respondent

argued that the disease of alcohol affected every area of his life, especially his judgment, therefore also affecting his professionalism.

Respondent testified before the special master that because of his father's death, which was a direct result of his alcoholism, respondent never drank alcohol until he was 36 years of age in 1978. It was also around this same time that respondent determined to seek a divorce from his first wife, after approximately 10 years of marriage.

Respondent recounted in detail his slide into drug induced and alcoholic stupors. He first visited a physician, who treated him for hypertension and prescribed inderal. Without disclosing this treatment to a second doctor, respondent obtained a prescription for valium. Respondent claimed he ingested the inderal and valium at the same time and in different quantities depending upon his own moods. He concomitantly experimented with illegal drugs like cocaine and marijuana and increased his alcohol intake. He claimed he ultimately consumed one quart of alcohol daily. As a result of this substance abuse, he was vomiting daily, sometimes with blood, was often blacking out or hallucinating and was constantly dizzy, shaking and sweating. He also told of the many times at the end of 1982 and 1983 when he aimlessly rode trains up and down the East Coast, while he consumed large quantities of alcohol. He related one incident in 1984 when he was in the Baltimore, Maryland, train station. He accosted a man because he was hallucinating. He believed he had killed that man. He even telephoned his children to tell them about it.

Respondent recounted [his version of] incidents with his ex-wife, beginning in 1978. * * * [A] bitter and protracted matrimonial action [lasted] approximately four years.

Respondent also told the special master his practice disintegrated during this period. In December 1982, his partnership was dissolved. Thereafter he rarely went to the office. By 1984 his rent was nine months in arrears. His telephone had been disconnected. All of his employees had left him.

Nonetheless, respondent admitted he could perform in court when required, and even had "periods of brilliance." He also met and in May 1982 married his second wife.

In March 1984, respondent entered Overlook Hospital in Summit, where he remained in the detoxification unit for approximately two weeks. Upon his release, he at first refused to enter a professional rehabilitation hospital. However, on the way home he changed his mind and entered the Center for Addictive Illnesses (Center), a program affiliated with Morristown Memorial Hospital that provides comprehensive care to chemically dependent individuals, ranging from detoxification to follow-up out-patient programs. He remained there for approximately one month, after which he joined Alcoholics Anonymous (AA). He testified he has not ingested alcohol or drugs since he entered the hospital's detoxification unit. He further testified he is currently an active member of AA, has been accepted to lead family recovery groups at the Center and is available at all times to aid other lawyers who are abusing alcohol or drugs.

Several witnesses testified about respondent's behavior both before and after his treatment at the Center. The Director of the Center, who is also a physician; the Speaker of the Assembly of the New Jersey Legislature, who was a personal friend; the senior staff attorney in charge of the legal division with the Prosecutor's Office in Hudson County; respondent's law partner, who also worked first as a law clerk and then as an associate for respondent; the First Assistant Prosecutor of Hudson County; an attorney who worked closely with respondent on civil matters, and a detective with the Jersey City Police Department, who is also an alcoholic and regularly attends AA, testified on respondent's behalf. Each corroborated respondent's testimony that although an alcoholic, he has fully rehabilitated himself.

The special master was impressed with the substantial mitigating factors. Respondent "completely bared his soul ... I've never heard an individual strip himself as naked as [respondent] did." He concluded:

Convincing evidence has been presented to me to prove that [respondent] has had the courage to admit his weaknesses and has undergone and is undergoing long and arduous treatment necessary to prevent his future addiction.

His devotion to his scheduled time with meetings and volunteer assignments is to be commended. There is no question that [respondent] is presently an outstanding lawyer with a brilliant mind and possibly in the future.

It would be a distinct shame to permanently lose his potential as a lawyer and as a civic-minded citizen, provided, of course, that his endeavors are adequately supervised.

Accordingly, the special master recommended a public reprimand.

Before this Board respondent acknowledged his derelictions, but once again argued that his substance abuse and personal problems should mitigate the offenses. He presented this Board with myriad letters from professional colleagues commending his basic good character. The OAE countered that all of respondent's problems cannot excuse his ethical derelictions.

[Citations and footnotes omitted.]

With respect to respondent's infractions, the DRB found:

A criminal conviction is conclusive evidence of respondent's guilt in disciplinary proceedings. Matter of Goldberg, 105 N.J. 278, 280 (1987); Matter of Tuso, 104 N.J. 59, 61 (1981) [1986]; In re Rosen, 88 N.J. 1, 3 (1981); R. 1:20-6(b)(1). Therefore, no independent examination of the underlying facts is necessary to ascertain guilt. In re Bricker, 90 N.J. 6, 10 (1982). The only issue to be determined is the quantum of discipline to be imposed. Matter of Goldberg, supra, 105 N.J. at 280 ; Matter of Kaufman, 104 N.J. 509, 510 (1986); Matter of Kushner, 101 N.J. 397, 400 (1986); In re Infinito, 94 N.J. 50, 56 (1983); In re Rosen, supra, 88 N.J. at 3 ; In re Mirabelli, 79 N.J. 597, 602 (1979); In re Mischlich, 60 N.J. 590, 593 (1977) [1972]. Respondent's conviction establishes that he engaged in conduct that adversely reflected on his fitness to practice law, in violation of DR 1-102(A)(3).

Failure to file a federal income tax return "is a serious [dereliction] on the part of any member of the Bar, no matter what the excuse...." In re Queenan, 61 N.J. 579, 580 (1972). Every member of the bar is "acutely sensitive" of his duty to file such returns. In re Gurnik, 45 N.J. 115, 116 (1965); In re Van Arsdale, 44 N.J. 318, 319 (1965). A conviction for such a dereliction cannot be disregarded or "treated as a matter for reprimand." In re Vieser, 56 N.J. 60, 61 (1970); In re Van Arsdale, supra, 44 N.J. at 319 . Even though all pertinent surrounding circumstances are considered, In re Hynda, 40 N.J. 586, 587 (1963), failure by an attorney to file his return, without any additional transgressions, has warranted a period of suspension. Matter of Moore, 103 N.J. 702, 702 (1986) (conviction for failing to file a personal income tax return resulted in a one-year suspension); In re Fahy, 85 N.J. 698, 698 (1986) (a conviction for violating 26 U.S.C. § 7203 resulted in a one-year suspension); In re Hughes, 69 N.J. 116, 117-118 (1976) (an attorney convicted of one count of failing to file timely tax returns suffered from recurring and debilitating heart attacks, which curtailed his legal practice; he voluntarily notified the Internal Revenue Service of his derelictions during an audit; he was suspended for six months); In re Queenan, supra, 61 N.J. at 580 (convictions for failing to file income tax returns for four consecutive years resulted in a one-year suspension, after the court considered the extenuating circumstances that arose from serious family and personal illness); In re Knox, 58N.J. 218, 219 [276 A.2d 377 (1971) (a conviction for failure to file an income tax return for one-year resulted in a six-month suspension in view of "a number of mitigating circumstances"); In re Vieser, supra, 56 N.J. at 60-61 (convictions for failing to file income tax returns for two consecutive years, which tax plus interest the attorney...