Yaccarino, Matter of

Decision Date13 October 1989
Citation117 N.J. 175,564 A.2d 1184
PartiesIn the Matter of Thomas L. YACCARINO, An Attorney at Law.
CourtNew Jersey Supreme Court

Richard J. Engelhardt, Deputy Ethics Counsel, Trenton, on behalf of Office of Atty. Ethics.

Michael D. Schottland, for respondent (Chamlin, Schottland, Rosen, Cavanagh & Uliano, attorneys; Michael D. Schottland and Charles A. Costanzo, West Long Branch, on the briefs).

PER CURIAM.

This is an attorney-disciplinary case brought against Thomas L. Yaccarino, following proceedings that resulted in his removal from the office of Judge of the Superior Court on December 27, 1985. The judicial-removal case was the subject of a reported decision by this Court, In re Yaccarino, 101 N.J. 342, 502 A.2d 3 (1985). This attorney-disciplinary case was initiated in August 1986 by the Office of Attorney Ethics (OAE), which filed a formal complaint, charging respondent with professional misconduct. The charged misconduct encompasses the same acts that were the focus of the judicial-removal proceedings.

In late September 1986, respondent filed a motion with the Court contesting the OAE's authority to file an ethics complaint against him as an attorney and contending that the principles of res judicata and collateral estoppel did not bar a challenge of the facts that had been determined in the antecedent judicial-removal action. The Court denied the motion, but ruled that the parties could present additional evidence and arguments on the issue of mitigation. It directed a panel of the District XIV Ethics Committee (Committee) to hear the case.

The Committee held hearings in June 1987. It accepted as conclusive the findings of fact determined in the judicial-removal case. The main question it considered was whether the proofs offered by respondent established a medical condition sufficient to excuse his unethical conduct. The Committee accepted as uncontradicted the expert testimony of respondent on this issue. The Committee recommended that, under the circumstances, respondent receive a public reprimand.

The matter was then brought before the Disciplinary Review Board (DRB or Board), which heard it in April 1988. In its disposition, the Board divided evenly as to the appropriate discipline. Four members determined that respondent should be disbarred for certain of his misdeeds, while four believed he should receive no more than a public reprimand. Each position was explained by a separate opinion setting forth recommended findings of fact and conclusions to support the discipline proposed. This appeal followed:

I.

Respondent contends that his discipline and removal from office as a judge, as reported and explained in our opinion, In re Yaccarino, supra, 101 N.J. 342, 502 A.2d 3 obviate any need to subject him to further discipline for these same unethical acts based on his status as an attorney. The basic question posed by this contention is whether respondent's misconduct in judicial office bears materially on his fitness to practice law. If the judicial misconduct reflects on the fitness to practice law, discipline that is limited only to the judicial office will not necessarily address or protect the public interest that must be considered in determining whether professional discipline should be imposed.

This Court has long recognized that there is a duality of professional responsibility on the part of lawyers who serve in the judiciary. Their professional loyalty runs both to the judicial office in which they serve and the profession of which they are members. Indeed, the status of an attorney as a member of the legal profession is a condition for the holding of judicial office. N.J. Const. art. VI, § 6, par. 2 (1947). Thus, if misconduct affects both the judicial office and the professional status of a lawyer, the public interest in both judicial and professional integrity can be implicated by the lawyer's conduct in judicial office.

We have on occasion addressed these concerns and recognized the indivisibility of the responsibility of a lawyer to his or her judicial office and legal profession. In In re Mattera, 34 N.J. 259, 266-67, 168 A.2d 38 (1961), we observed:

A single act of misconduct may offend the public interest in a number of areas and call for an appropriate remedy as to each hurt. Thus it may require removal from public office. It may also require criminal prosecution. Still further it may require that the roster of attorneys be cleansed of a miscreant. The remedies are not cumulative to vindicate a single interest; rather each is designed to deal with a separate need.

In In re Vasser, 75 N.J. 357, 382 A.2d 1114 (1978), this Court found that a judge could be disciplined as a member of the bar for improperly interceding in another court and in using his official stationery for private transactions. The Court said:

We conclude that respondent's ethical breaches warrant discipline. His ethical misconduct occurred while he held judicial office and was related to that office.... At this critical juncture, when discipline is to be imposed, respondent stands before us only as a member of the bar. The Ethics Committee determined that respondent was guilty as an attorney for derelictions while holding judicial office; he is clearly accountable for this misconduct in his professional capacity as a member of the bar. [Id. at 363-64, 382 A.2d 1114.]

In In re D'Auria, 67 N.J. 22, 334 A.2d 332 (1975), this Court suspended a former judge's law license for six months for improperly having lunch with attorneys who were representing clients in his court. The Court found that the judge's acceptance of gratuities and favors was unethical conduct for which a lawyer could be disciplined. Id. at 24-25, 334 A.2d 332. Thus, judges who transgress professional ethics standards can be, and have been, disciplined qua lawyers.

The courts in a majority of the states have acknowledged, "that an attorney may be disbarred, suspended, or otherwise disciplined for acts of misconduct performed in the exercise of a judicial office." Annot., "Misconduct in Capacity as Judge as Basis for Disciplinary Action Against Attorney," 57 A.L.R.3d 1150, 1158 (1974). These cases have concluded that "misconduct in any capacity whatsoever, including a judgeship, reflects upon an attorney's fitness to practice law and is consequently a proper ground for discipline." Id. See, e.g., In re Littell, 260 Ind. 187, 294 N.E.2d 126 (1973) (attorney-judge is subject to the strongest requirements of both disciplinary rules for attorneys and Code of Judicial Conduct and Ethic and so license can be suspended for misconduct as a judge); In re Bartholet, 293 Minn. 495, 198 N.W.2d 152 (1972) (probate judge's conduct in obtaining funds from estate by appointing appraisers from whom he asked and received kickbacks of appraisal fees authorized by him would warrant disbarment); In re Hasler, 447 S.W.2d 65 (Mo.1969) (attorney corresponding with and having private meetings and telephone conversation with one party to a divorce suit in which he was the presiding judge found guilty of gross misconduct as both a judge and a lawyer); Cin. Bar Ass'n. v. Heitzler, 32 Ohio St.2d 214, 291 N.E.2d 477, cert. den., 411 U.S. 967, 93 S.Ct. 2149, 36 L.Ed.2d 687 (1972) (court found that "[a] member of the legal profession, who is also a judge, may engage in misconduct which not only requires his removal from office, but also requires that disciplinary action be taken against him with regard to his right to practice law after such removal from office."); Schoolfield v. Tenn. Bar Ass'n., 209 Tenn. 304, 353 S.W.2d 401 (1961) (lawyer found guilty in impeachment proceedings of "reprehensible conduct involving moral turpitude and has demonstrated qualities which make him an unfit person in whom to place the public trust of practicing law" was properly disbarred for such conduct.).

In In re Alonzo, 284 Ala. 183, 223 So.2d 585, cert. den., 396 U.S. 992, 90 S.Ct. 486, 24 L.Ed.2d 454 (1969), the Alabama Supreme Court addressed the issue of disbarring an attorney for fraudulent, corrupt activities as a judge. The court found that:

Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct. [Id.

The court concluded that the remedies of judicial impeachment and attorney discipline are not cumulative but protect different interests. "[T]he interest of the legal profession in the maintenance of decent and honorable conduct of its members was also grievously offended by Alonzo's conduct" and merited his removal from the roll of attorneys. Id.

We have done no less. In a case in which a judge was found guilty of crimes involving bribery in connection with his judicial office, we concluded that the judge must not only be removed from judicial office but must also be disbarred as an attorney. "[N]o discipline short of disbarment would be commensurate with the transgression." Matter of Coruzzi, 98 N.J. 77, 81, 484 A.2d 667 (1984). Moreover, we have recognized in other contexts that an attorney's conduct not directly involving the practice of law may nonetheless bear materially on his professional capacity as a lawyer. Thus, the Court has not hesitated to order disbarment where a lawyer uses his position to advance personal financial interests at the expense of clients. See, e.g., Matter of Smyzer, 108 N.J. 47, 527 A.2d 857 (1987); Matter...

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