From Berlin To Stratford: Two First Offenses

A censure has been imposed by the New Jersey Supreme Court for misconduct in representing a client charged with two driving while intoxicated offenses.

The Disciplinary Review Board described the circumstances

On the morning of December 18, 2017, respondent and [client]] Coyle appeared in the Berlin municipal court, where Coyle entered a guilty plea to DWI, as a first offender. Thereafter, the Berlin municipal court sentenced Coyle as a first offender, imposed the mandatory minimum penalties, and advised Coyle regarding the enhanced penalties for a subsequent DWI conviction.

On the same date, in the afternoon, respondent and Coyle appeared in the Stratford municipal court, where Coyle, again, entered a guilty plea to DWI based on the prosecutor’s recommendation that the court sentence Coyle as a first offender. Coyle’s driver’s abstract had not yet been updated to reflect his Berlin DWI conviction from that same   and, thus, neither the Stratford municipal court nor the prosecutor were aware of Coyle’s prior conviction. Coyle provided the court with a factual basis for his plea, and the court, upon examining Coyle’s driver’s abstract, asked respondent whether Coyle was a first-time offender. Respondent then replied, “I looked at the [driver’s] abstract. It was just run today, Judge. There are no priors.” The court, in response, noted that “it does look like . . . a first [offense]” and sentenced Coyle to the mandatory minimum penalties for a first-time DWI offender. Although respondent knew that Coyle’s driver’s abstract had not yet been updated to reflect that morning’s conviction in Berlin, he never came forward to the Stratford municipal court or to the prosecutor to correct his misrepresentation.  Unsurprisingly, had the Stratford prosecutor been aware of Coyle’s Berlin conviction, she would not have recommended that the court impose the minimum penalties for a first offense.

Respondent’s explanation

At the ethics hearing, in his answer to the formal ethics complaint, and at oral argument before us, respondent claimed that he was unaware, at the time of Coyle’s court appearances, that his tactic was unethical. Specifically, respondent believed that he had no responsibility to provide the Stratford municipal court or prosecutor with information detrimental to Coyle, even when it would impact a mandatory sentence, based on the principles in State v. Kane, 2015 N.J. Super. Unpub. LEXIS 277 (App. Div. Feb. 17, 2015).3 Respondent also expressed his unsupported belief that not only was the municipal court required to solely rely on Coyle’s driver’s abstract, regardless of his independent knowledge of Coyle’s prior conviction, but also that the municipal court should have instead questioned the prosecutor regarding Coyle’s offense history. Incredibly, respondent also rationalized that he would have been found “ineffective” for disclosing Coyle’s prior conviction from that same morning.

DRB response

Respondent’s actual knowledge that the driving abstract was inaccurate created a clear duty of candor to correct that misimpression for the benefit of the tribunal. Respondent was the only person in the Stratford municipal courtroom, other than Coyle, who knew that Coyle had sustained his first DWI conviction that morning. Respondent, thus, was required to disclose that material fact to the Stratford court to avoid misleading the tribunal into imposing an improper sentence.

Chair Gallipoli favored a three-month suspension. (Mike Frisch)