Q: “How Long Do You Think I’m Gonna Lose My License For?” A: Three Months

A prosecutor’s interactions with a criminal defendant drew a three-month suspension from the New Jersey Supreme Court.

The defendant was charged with driving while intoxicated and related offenses and had been accepted for pretrial diversion as described by the Disciplinary Review Board

In the interim, on April 3, 2018, respondent prosecuted K.O. in an unrelated traffic matter, wherein the motor vehicle violation was dismissed. He had not met K.O. prior to this date. After the April 3 proceeding, he followed K.O. out of the courtroom; approached her; complimented her on her smile; gave her his e-mail address; and told her that if she needed anything in the future, she should contact him.

They began to communicate about the related pending municipal court matter

Soon after K.O. contacted him, respondent reviewed the municipal court docket and learned about her pending motor vehicle charges stemming from the car accident. He also learned that, in the Superior Court proceeding on the indictable CDS offense, she had been admitted into PTI. After reviewing this information, respondent wrote to K.O., via text message, stating that he understood she had contacted him because the Superior Court had remanded the traffic charges to the court where he was municipal prosecutor.

Thereafter, respondent continued to communicate with K.O. about her pending municipal court matter. At some point, he learned that the same defense attorney who had represented her in Superior Court also was representing her in the municipal matter. Nevertheless, he continued communicating with K.O. directly about the latter. In the course of these exchanges, he repeatedly advised her that she should not tell her attorney or anyone else about their communications. He also repeatedly complimented her appearance and personality.

He got her matter assigned to him, made false statements to the court and her municipal case dismissed

On dates subsequent to the August 28, 2018 proceeding, respondent sent K.O. additional text messages. In particular, on September 4, 2018, he sent her a number of text messages complimenting her appearance and asking to meet with her. However, by that time – unbeknownst to respondent – K.O. had contacted her relative, who worked in the prosecutor’s office in a different county, regarding respondent’s communications with her. Her relative had forwarded the information to the appropriate authorities, prompting the [Atlantic City Prosecutor’s Office] to open an investigation into the matter.

Respondent pled guilty to contempt of court and reported the conviction to disciplinary authorities.

Sanction

Here, respondent’s messages to K.O. – who knew of his public office as municipal prosecutor – strongly implied that he could assist her in her municipal court matter in ways that were evidently improper, given his insistence that she inform no one of their communications. Asked by her, “how long do you think I’m gonna lose my license for?” he replied, “[y]ou will be fine,” followed by, “[y]ou can never tell [your attorney] we talk[.]” Similarly, his statement (in a sequence of texts discussing the upcoming proceeding), that “[i]t will be fine as long as you NEVER tell anyone we talk EVER,” resoundingly signaled improper influence, whereby her matter would turn out “fine” contingent on her keeping her exchanges with him secret.

…On balance, we determine that the mitigating factors outweigh the aggravating factors and, thus, a three-month suspension is the appropriate quantum of discipline to protect the public and to preserve confidence in the bar.

Member Campelo voted for a censure.

(Mike Frisch)