Reprimand For Assault Conviction

A reprimand has been imposed by the New Jersey Supreme Court for a misdemeanor assault conviction.

The Disciplinary Review Board told the story

On April 29, 2022, respondent and Edward Morris were at the Stapler Athletic Association (the Club), in Wilmington, Delaware. The men, who had known each other for more than forty years, were drinking and watching baseball on television. Prior to that date, they had been assisting a mutual friend with repairing his house. While sitting at the bar in the Club, respondent began needling Morris about assisting him with finishing the project. During the conversation, Morris became upset, and the men began arguing, which caused them both to rise from their seats. According to a witness, respondent then lunged toward Morris and “shoulder blocked” him. Both men fell to the floor and respondent landed on top of Morris. Morris hit the back of his head on the floor and, at some point, stopped breathing. Despite their desperate attempts, the people at the Club could not revive Morris. The bartender called 911. The paramedics further attempted to revive Morris and transported him the hospital; four days later, he passed away.

An indictment initially charged respondent with two felonies – criminally negligent homicide, in violation of 11 Del. C. § 631, and assault in the second degree, in violation of 11 Del. C. § 612, with the cause of death described as cerebral edema with hypoxic encephalopathy (a brain injury) following an altercation while intoxicated. However, the autopsy determined that Morris had an underlying cardiac condition known as ventricular hypertrophy. During the argument with respondent, Morris’ heart went into cardiac arrest and “flatlined.” The lack of oxygen to Morris’ brain caused brain damage, which led to brain swelling and, ultimately, caused his death. The prosecution’s medical expert agreed with the defense – that Morris had died from cardiac arrest and not due to the injury to his head caused by the assault.

At the time of the altercation, respondent was not aware of Morris’ heart condition. Accordingly, the prosecution determined that it could not establish a causal connection between respondent’s actions and Morris’ death and, thus, would amend the charged second-degree felony assault to third-degree misdemeanor assault and, upon sentencing, the criminally negligent homicide charge would be dismissed.

Sanction analysis

In our view, disciplinary cases involving violent behavior by attorneys require fact-sensitive considerations. There is no typical or baseline measure of discipline for these cases. Given the Court’s and our ever-decreasing tolerance for violent conduct by members of the bar, discipline ranging from a censure to a one-year suspension has been imposed on New Jersey attorneys who engage in such misconduct that does not constitute domestic violence. Accordingly, we begin our analysis with a detailed review of relevant disciplinary precedent addressing criminal acts of violence and assaultive behavior by attorneys.

No paucity of precedent

Here, respondent did not become enraged and unleash an unprovoked, vicious, and outrageous attack on a stranger that involved choking, repeated closed fist blows to the victim, or significant property damage. Rather, he engaged in a verbal confrontation with Morris, whom he had known for more than forty years, which unfortunately escalated to a physical altercation that resulted in respondent shoulder blocking Morris once causing both men to fall the floor, where Morris sustained an injury to his head. As the OAE noted, it is likely that respondent’s alcohol consumption played a role in his behavior. There is nothing in the record to indicate that, prior to or any time after this incident, respondent engaged in any other violent or assaultive behavior. Nonetheless, discipline is warranted to protect the public, while reminding the bar that violence by attorneys will not be tolerated.

Like Goiran, there is substantial mitigation in this matter. Respondent has no prior discipline in twenty-three years at the bar. He has had no subsequent criminal conduct and there is a low risk of reoccurrence of similar conduct. He expressed sincere remorse for what occurred and entered into a plea agreement for the underlying criminal matter, thereby accepting full responsibility for his misconduct. He also agreed to participate in a substance abuse evaluation and follow any recommended treatment plans. Since 2023, he has engaged in rehabilitation efforts through Alcoholic Anonymous and is experiencing serious medical issues.

Conclusion

On balance, in view of significant compelling mitigating factors and the unique facts presented, we determine that a reprimand is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

Members Rodriguez and Spencer voted to dismiss this matter.

(Mike Frisch)