Bad Joke Or Conduct Prejudicial?

An attorney’s  recorded statements falsely claiming influence with his former law partner who is the chief county prosecutor drew an admonition  from the New Jersey Supreme Court

From the Disciplinary Review Board Report majority report  proposing a censure

We first consider the relevant evidence and circumstances underpinning the RPC 8.4(e) allegation. During extremely contentious domestic violence proceedings, which were part of what respondent described as “the most highly contested divorce case I’ve ever had in 43 years,” and after having been personally sued by T.I., respondent accused T.I. of having committed a criminal offense, by obtaining security footage of L.I. and their children, to use as evidence against L.I. Respondent, thus, requested that the court refer T.I. to the Morris County Prosecutor’s Office for investigation and potential criminal charges. The court promptly took a recess to contact the Morris County Prosecutor’s Office.

During that recess, [opposing counsel] Sarno made a reasonable inquiry as to whether the Morris County Prosecutor – Knapp – was respondent’s former law partner, and the recorded exchange unfolded. In reply to Sarno’s legitimate question respondent stated that Knapp, indeed, was his former partner, that he had gotten Knapp that government position, that he had Knapp “in [his] pocket,” and that Knapp was “irrecusable.” Respondent made those comments in the presence of L.I., T.I., court staff, and sheriff’s officers, while in a courtroom, seated at counsel table. At a minimum, his comments were false and reckless, and a poor attempt at humor. At worst, they were intended to intimidate and “shut up” T.I., given T.I.’s relentless, “scorched earth” approach to the litigation.

T.I. may have stood for Trouble Indeed

Respondent recounted that T.I. had “gone through” five or six different lawyers and had sued most of them; had sued respondent, his wife, his law partners, and their spouses; had filed lawsuits against the judges presiding over the case; and had filed ethics charges against every expert involved in the case. According to respondent, T.I. also had filed lawsuits in federal court against members of respondent’s firm and Superior Court judges, seeking billions of dollars in damages.

Although Respondent and former partner Knapp were never close, they are now even less so

On March 16, 2015, during an impromptu telephone conversation on an unrelated matter, respondent alerted Knapp of the existence of the recorded exchange. Knapp promptly directed his first assistant to obtain a copy of the recorded exchange, and, ultimately, ordered an internal investigation of his office. Knapp also filed an ethics grievance against respondent. Knapp testified that he had conducted extensive research and had consulted with private counsel prior to filing the ethics grievance. The Morris County Prosecutor’s Office also issued a public statement calling respondent’s statements made during the recorded exchange “totally and completely false.”

Knapp’s wife, Eleanor, testified that, on January 7, 2017, during a social event, respondent approached both her and Knapp. Knapp and respondent shared a “terse hello,” and Knapp promptly walked away. Respondent then asked to speak to Eleanor privately, “profusely” apologized multiple times, stated that he had “f- …. up,” and asked her to “fix things” between respondent and Knapp. Eleanor replied that “the damage that was done may be irreparable and there was really nothing [she] could do.”

Sanction

Aggravating and mitigating factors must also be considered, however, in crafting the appropriate discipline. We find respondent’s comments to be particularly offensive, given the context in which the recorded exchange was made. Specifically, his comments were made during very contentious proceedings, on the heels of having convinced Judge Sceusi to refer T.I. for potential criminal charges; in front of L.I., T.I., court staff, and sheriff’s officers, and while in a courtroom, seated at counsel table. Moreover, his comments had a drastic impact on the Morris County Prosecutor’s Office, spurring an internal investigation, public denials, and a waste of resources.

Finally, the comments beckoned unnecessary public scrutiny, and were weaponized by T.I. and made part of the record in a subsequent court hearing. In counterpoise, we consider compelling mitigating factors. Respondent has no disciplinary history after forty-three years at the bar, has shown genuine remorse, and has enjoyed a well-deserved reputation for character and proficient advocacy.

Thus, on balance, we determine that the appropriate quantum of discipline necessary to protect the public and to deter such future misconduct is a censure.

The dissent’s proposed admonishment carried the day

The charges against respondent stem from his jokingly saying to an adversary during a courtroom recess in a matrimonial case that the Morris County Prosecutor, who was respondent’s former partner, is “in his pocket” and “he does what I ask.” The statements were made at counsel table, not on the record but nonetheless recorded by the CourtSmart back-up system. Respondent testified that he made the statements in jest. The adversary agreed, testifying that he understood that respondent’s statements were “tongue in cheek” and “sarcastic banter.” The judge who listened to the audio exchange in its full context and tone likewise concluded that respondent was “joking with a colleague; an adversary, but a colleague.” Respondent has been a respected member of the New Jersey bar for 43 years. He has a well-deserved reputation for character, a long history of contributions to the bar and to his community, and no disciplinary history. While his statements violate RPC 8.4(d) and 8.4(e), the censure recommended by the majority is too severe under these circumstances. There is a big difference between a momentary lapse of judgment and conduct showing a deficiency of character. We recommend an admonition.

There are some things that should not be joked about. A lawyer suggesting that he or she has improper influence over a judge, prosecutor, or other government official is one of them. It is particularly problematic where, as here, the joke was made in a courtroom, in the presence of recording devices. The problem is further compounded by the fact that a cold, flat transcript can never later reflect the original tone of humor or sarcasm. Yet, in evaluating ethics cases, as in the careful application of virtually all law, context counts. If respondent had made the same statements in earnest, intending to intimidate an adversary or influence a client, a censure or greater discipline would likely be appropriate. That, however, is not what happened here. The consistent testimony from all the participants is that it was obvious that respondent was speaking facetiously. There is no clear and convincing evidence that respondent intended to mislead, intimidate or influence anyone. He did not mean for anyone to take his banter seriously — and evidently no one in the courtroom did.

(Mike Frisch)