Monday, February 26, 2018
Bad language gets a New Jersey attorney the same sanction - reprimand - imposed for sex with a vulnerable client.
The offending language came in two emails to bar officials investigating the attorney's complaint against his former employer.
On November 7, 2012, in the course of communicating with the Office of Attorney Ethics (OAE) about grievances that he had filed against, his former employer, Stanley Marcus, and others, respondent sent two e-mails to the OAE. The first email was sent to the OAE investigator, Scott Fitz-Patrick; the second e-mail was sent to OAE Director Charles Centinaro
Per the report of the Disciplinary Review Board
The Centinaro e-mail contained vulgar, highly offensive language, directed at a significant official in the Court’s attorney discipline system. To respondent’s credit, he ultimately admitted, in a written stipulation, that his actions in that regard were discourteous and inconsiderate, in violation of RPC 3.2. Nevertheless, in a brief to us, respondent again suggested that the complaint against him should be dismissed, as having been filed in bad faith in order to either silence his allegations of corruption in the attorney discipline system or to retaliate against him for having alleged such corruption.
Although respondent admitted that the e-mail sent to Director Centinaro violated RPC 3.2, he took issue with the allegation that the Fitz-Patrick e-mail, too, violated the Rule. Respondent claimed that he and Fitz-Patrick enjoyed a rapport that permitted the use of foul and offensive language.
Even if true, that argument misses the mark. By instructing Fitz-Patrick in the first e-mail to tell Director Centinaro to go "F**K" himself, he intended for that vulgar and offensive comment to reach the Director. Incredibly, respondent testified that the reason he sent the second e-mail directly to Centinaro minutes later was out of concern that Fitz-Patrick might not relay his remarks to the Director for him. Respondent, thus, wanted to make sure that Director Centinaro received his message. Because both e-mails contained the very same offensive message, which respondent wanted to reach Director Centinaro, the first e-mail to Fitz-Patrick was equally as offensive as the second One to which respondent stipulated. We, thus, find a violation of RPC 3.2 as to both communications.
We, however, reject another factor in aggravation that the DEC considered -- that respondent did not care whether he received an admonition or a reprimand. Respondent admittedly was unconcerned about the quantum of discipline, because he no longer practices law. In our view, he should not be faulted simply because he confessed that he is not concerned about the sanction, especially when it is within a very limited range.
Respondent’s lack of prior discipline in twenty-four years at the bar represents the only mitigating factor here.
Although we are deeply troubled by respondent’s behavior, on balance, we find that the aggravating and mitigating factors are in near equipoise. We, therefore, determine to impose a reprimand for respondent’s misconduct.
I must state that in my many years as a bar prosecutor (admittedly in a pre-email era), I was called all sorts of things that I did not consider prosecution-worthy. (Mike Frisch)