Thursday, October 3, 2024

The Meaning Of "Stick Around"

The New Jersey Supreme Court dismissed ethics charges against a criminal defense attorney as had been recommended by the Disciplinary Review Board

This matter stems from events that occurred on September 16, 2019, in connection with respondent’s appearance on behalf of a criminal defendant, M.M., in a proceeding pending before the Honorable Cristen D’Arrigo, J.S.C., in the Superior Court of New Jersey, Cumberland County. On that date, respondent appeared before Judge D’Arrigo on behalf of M.M., who was incarcerated. Respondent had appeared with M.M. several times before and was aware that his client routinely acted out during court proceedings.

Because M.M. had refused to be transported to court that morning, Judge D’Arrigo ordered that he be brought to court using all reasonable force. Specifically, Judge D’Arrigo issued an extraction order (also known as a “touch order”), which allowed officers at the Cumberland County Jail to employ the force necessary to remove M.M. from his jail cell and transport him to Judge D’Arrigo’s courtroom, if he refused to come willingly. According to the order, M.M.’s presence was necessary for the court to schedule a trial which already had been delayed, given M.M.’s refusal to appear in court on six dates between January 2018 and September 2019.

Respondent was aware of this order. Earlier that morning, Judge D’Arrigo briefly discussed M.M.’s transport with respondent, on the record, at the conclusion of one of respondent’s other pending matters.

Respondent left the courthouse despite the judge advising him to "stick around"

Respondent, however, had other criminal matters scheduled that morning, in Salem County. Accordingly, at approximately 10:15 a.m., before M.M.’s case was called and notwithstanding his representation to Judge D’Arrigo that he would remain in the courtroom, respondent departed and traveled to the Salem County courthouse. Before doing so, he sent an e-mail to the Salem County criminal division team leader, advising that he was delayed in Cumberland.

Respondent failed to alert Judge D’Arrigo or any court staff that he was leaving the Cumberland County courthouse. Thereafter, at 10:22 a.m., when the sheriff’s officers brought M.M. into the courtroom, and M.M discovered that respondent was missing, he repeatedly disrupted another criminal proceeding and, ultimately, was removed from the courtroom.

There were email exchanges between Respondent and court staff as he attended to the Salem County matters

Respondent’s third matter in Salem, a plea hearing before Judge Becker, commenced at 2:37 p.m. and concluded at 3:15 p.m.

Thereafter, respondent returned to the Cumberland County courthouse, arriving at approximately 4:00 p.m. When he arrived at Judge D’Arrigo’s courtroom, other hearings were still taking place. The court heard M.M.’s matter from 4:42 p.m. to 5:05 p.m. Although the matter was scheduled for a pretrial conference, the proceeding was lengthy, because M.M. continuously interrupted Judge D’Arrigo and disrupted the proceeding. At least nineteen times during the twenty-three minute hearing M.M. was yelling so loudly that the transcriber was unable to hear what the court and counsel were saying.

After the proceeding

On January 2, 2020, the assignment judge for the Cumberland/Gloucester/Salem vicinages, the Honorable Benjamin C. Telsey, A.J.S.C., referred this matter to the OAE.

Following its investigation, the OAE charged respondent with having violated RPC 3.4(c) and RPC 8.4(d).

Before the Board

At oral argument before us, the OAE emphasized respondent’s continued lack of contrition and remorse and argued that the conduct was likely to recur. Respondent, according to the OAE, refused to accept responsibility for his actions and, instead, took every opportunity to blame others and accuse the OAE of not being honest or forthright.

Respondent, for his part, reiterated that Judge D’Arrigo had told him to “stick around” until ten and that he did just that. In response to our questioning, respondent admitted that he had not told anyone that he was leaving, or why he was leaving, Judge D’Arrigo’s courtroom. Further, he admitted not calling Judge D’Arrigo’s chambers throughout the day because, according to respondent, Judge Lawlun’s chambers already had been in touch with him.

The Board

It is undisputed that, on September 16, 2019, Judge D’Arrigo informed respondent, on the record, that his client’s case would be heard at 10:00 a.m. and, despite respondent’s expressed concern that he had other court appearances scheduled in Salem, Judge D’Arrigo told him to “stick around.” However, by 10:22 a.m., when M.M. was brought into the courtroom, respondent already had left the courthouse, and respondent ultimately admitted that he had failed to inform Judge D’Arrigo or court staff that he intended to leave.

Respondent then traveled to Salem County to handle other pending matters before Judge Lawhun and Judge Becker. After respondent left Cumberland, Judge D’Arrigo’s law clerk sent an e-mail to respondent, advising that the judge wanted him to appear at 1:30 p.m. Respondent replied, stating that he needed to remain in Salem County to handle other criminal matters, and in fact, he did return to Judge D’Arrigo’s courtroom after he completed those matters. Moreover, when respondent arrived back in Cumberland County, Judge D’Arrigo still had other matters to complete before M.M. could be heard. As respondent contended, the court was not waiting idly for him to return and, thus, his conduct did not prevent the court from hearing other matters.

While he could have handled the matter in a more professional manner

In conclusion, respondent’s conduct in this matter simply is not of the same caliber as the attorneys who have who have been disciplined for knowingly disobeying a court order. Accordingly, based on the unique facts of this record, we conclude that there is no clear and convincing evidence that respondent violated RPC 3.4(c) or RPC 8.4(d) and, thus, determine to dismiss both charges.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2024/10/the-new-jersey-supreme-court-dismissed-ethics-charges-against-a-criminal-defense-attorney-as-had-been-recommended-by-the-disc.html

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