“An Unfortunate Act Of Negligent Forgetfulness”

The New Jersey Supreme Court with its characteristic terseness rejected a proposed six month with fitness suspension in favor of a public censure of an attorney convicted of carrying a concealed weapon

From the Disciplinary Review Board majority recommendation

On September 17, 2018, respondent possessed a concealed, .22 caliber handgun loaded with hollow point bullets as he entered the Ocean County Courthouse, where he was scheduled to appear before a New Jersey Superior Court Judge. The sheriff’s officers discovered the handgun when respondent’s backpack passed through the metal detector. Respondent did not possess a valid permit to carry a concealed weapon and, when queried by the courthouse sheriffs, represented that he had placed the handgun in his backpack to show it to someone, but then forgot the handgun was in the bag.

The attorney pleaded guilty to second degree unlawful possession of a handgun; he explained that he had lawfully purchased the gun as a member of the  district attorney’s office in 1982.

At the bar hearing

In respect of these disciplinary proceedings, respondent claimed that he took the handgun from a locked safe because he planned to go to a shooting range with a friend, but, when his plans changed, he forgot to return the firearm to the safe. He maintained that he forgot that the firearm remained in the backpack and used the same backpack to bring his files to the courthouse. Respondent participated in a polygraph examination, the results of which indicated that he believed his assertion that he did not intend to bring the firearm into the courthouse.

Proposed sanction

We accord significant weight to the fact that respondent brought the loaded handgun into a courthouse where he was scheduled to appear before a judge, a scenario which created an egregious potential for danger to the public, judiciary employees, and other judges. Although respondent stressed that his misconduct was an inadvertent mistake and an isolated incident, his position does not comport with the knowing element of the crime to which he pleaded guilty, under oath, nor the fact that he represented to the sheriff’s officer that he had entered other courthouses, undetected, with the same loaded handgun. Therefore, we find respondent’s explanation for his misconduct to be neither reasonable nor compelling.

On balance, given the extreme recklessness of respondent’s misconduct and the totality of the circumstances, we conclude that the aggravation outweighs the mitigation, and determine that a six-month suspension is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

We further require that, within thirty days of the Court’s Order in this matter, respondent provide proof of fitness to practice law, as attested to by a mental health professional approved by the OAE. This condition mirrors the conditions imposed in connection with respondent’s PTI.

One additional point in this case warrants further mention. It is extremely troubling that, despite his entry of a guilty plea, under oath, in Superior Court, respondent has sought to aggressively refute his guilty plea, in the context of the disciplinary charges against him, by claiming that the knowing criminal charge to which he pleaded guilty was merely an “inadvertent mistake.”

A separate statement authored by board Vice Chair Gallipoli  (a consistent if generally unheeded voice against undue leniency in bar discipline) notes the conclusive effect of the guilty plea to a “knowing” unlawful possession.

The dissent argues that respondent’s statements in this ethics proceeding, that he “didn’t know the gun was in his backpack when he attempted to enter the courthouse,” do not contradict that facts to which he allocuted nor do they disavow any element of the crime of knowing possession to which he pled. We respectfully disagree. The dissent further argues that respondent’s position has always been consistent. Again, we beg to disagree…

Finally, the dissent cites the Court to its decision in In re Spina, 121 N.J. 378, 389, (1990), urging the Court to “examine the totality of the circumstances,” including the details of the offense and the background of the respondent. We echo that invitation. No carry permit. Loaded handgun. Hollow-point bullets. Conditions imposed with entry into PTI, including weekly psychotherapy sessions; continued treatment with his psychiatrist; periodic risk evaluations performed by the psychotherapist and treating psychiatrist; all recommended after a court-ordered psychological examination.

The DRB dissent that carried the day

the majority’s determination to impose a six-month suspension is, in our view, too harsh. Under all of the circumstances presented, we believe that a censure is the appropriate discipline for this lawyer with no prior ethics history. A suspension would be unjustified and unduly punitive for what we see as being an unfortunate act of negligent forgetfulness, which already has had dire consequences for this respondent, who has by all accounts otherwise had a distinguished and unblemished career.

The court’s order does require the attorney to provide a mental health professional’s evaluation of his fitness to practice within 30 days. The Office of Attorney Ethics must approve of the person conducting the evaluation.  (Mike Frisch)