In Re Friedland
The opinion of the Court was delivered
This is a disciplinary action. On May 13, 1969, we appointed Superior Court Judge Alexander Waugh as a Master to hear certain charges against David Friedland, Michael Querques, and Norman Robbins, Attorneys at Law, involving an alleged improper arrangement for the dismissal of two criminal complaints filed in the Municipal Court of the Township of Woodbridge. The charges arose out of a loan sharking operation. After an extended hearing between April 6 and June 17, 1970, Judge Waugh found all three attornej's guilty of improper conduct and recommended disciplinary action.
The genesis of this action was a usurious loan made by John Di Gilio to Julius Pereira. During the late summer of 1966, Pereira, the owner of a car wash in Iselin, Middle-sex County, was experiencing severe financial difficulties. Unable to borrow through legitimate lending institutions, he sought aid from private sources. At the suggestion of a
During the late summer of 1967, Pereira borrowed an additional $1,000, and his interest payments were increased to $100 per week. Either or both loans could be canceled only if the entire principal were paid off in a lump sum, a payment Pereira was, of course, in no position to make.
Unable to meet the $100 weekly interest payments, Pereira defaulted. Thereafter, in January of 1968, he received a visit from two of Di Gilio’s henchmen who left him with the clear impression that violence might come to him if he did not resume payments. As a result, Pereira communicated his problem to the State Police.
In February, the loan was renegotiated because of Pereira’s inability to meet its terms. Payment was reduced to $50 a week upon Pereira’s agreement to repay $4,000 for the $2,000 borrowed.
Although he accepted the “deal,” Pereira soon decided to stop all payments, and he notified Grimaldi of his intention. As a result, Pereira received a threatening telephone call on April 25, 1968. The caller identified himself as “Johnny” and told Pereira that unless he resumed payments to “Little Gerry,” the caller would “come down and chop your f-----head off.” Pereira taped the call and after contacting the State Police, made a complaint in municipal court on April 26 charging John Di Gilio “did with intent to extort money or other thing of value,
directly or indirectly,
threaten to
This brings us to the roles played by the three respondents in this affair.
After warrants were issued on the two complaints, Di Gilio was arrested in Jersey City on May 23 and was arraigned the same day. Eespondent Querques represented him at the arraignment in Woodbridge Municipal Court. In this capacity Querques secured Di Gilio’s release on a recognizance bond pending the outcome of a preliminary hearing which was originally scheduled for May 31, 1968, but which was subsequently twice adjourned.
In late May, respondents Eriedland and Bobbins became involved in the case under somewhat curious circumstances. Eespondent Eriedland was retained by Di Gilio because, according to Eriedland, Di Gilio was not satisfied with the manner in which Querques proposed to handle the case. Querques wanted to defend the criminal charges because he believed that Di Gilio’s alibis concerning the two crimes constituted perfect defenses. Di Gilio, on the other hand, preferred to settle the problem quietly out of court if possible.
Robbins’ entry into the affair is even more curious. He says that late in May, 1968, he received a telephone call from a Middlesex County attorney, asking him whether he represented Pereira and saying that Pereira had filed “some crazy complaint.” Robbins told the attorney he had represented Pereira in several matters, but had heard nothing of any complaint. The attorney suggested that Robbins might receive a call from respondent Eriedland and he requested that Robbins show Eriedland every courtesy. 1
On June 1, 1968, Pereira attended the Woodbridge Mayor’s .Ball acting as host in his capacity as President of the Young Democrats Club. Although the evidence is in dispute, the Master found, and we agree, that after greeting Pereira in the hall, Robbins pulled him aside and initiated a conversation involving the criminal complaints. In the course of the conversation Robbins indicated that the complaints had to be disposed of and that Pereira would get his money back if he withdrew the complaints. Pereira was amenable to this suggestion.
Shortly after June 1 negotiations began between Eriedland and Robbins. The negotiations were initiated by Eried
The terms of the final settlement make it clear that both Eriedland and Robbins were aware that there was some basis for Pereira’s charges against Di Gilio and that these charges motivated and were the core of the settlement. In the settlement it was agreed that Di Gilio would pay Pereira $6,500 in cash, Pereira would see that the criminal complaints were withdrawn, and the parties would exchange mutual releases. Although the $6,500 was allegedly a return of the illegal interest, it is clear that neither Robbins nor Eriedland ever made any serious effort to determine the true amount of illegal interest or that that amount was ever a significant factor in negotiations. Rather, the negotiations involved the question of what price Di Gilio was willing to pay to get Pereira “off his back” by withdrawing the criminal complaints, and the Master’s finding that this was the real subject of the settlement is amply supported by the record. It is worth noting in this connection that in his brief Robbins asserts that the maximum amount of usurious interest paid by Pereira was $4,690. This raises the obvious question of why the settlement of $6,500 was so readily agreed to. Subtracting the $2,000 cash loan which Pereira received from DiGilio and which had never been repaid, Di Gilio owed only a net of $2,690. Moreover, according to both Robbins and Eriedland, Di Gilio had the additional bargaining point of a threatened suit for malicious prosecution. In light of these
On the afternoon of June 26, the day before the adjourned hearing in the Woodbridge Municipal Court, Di Gilio brought $6,500 in cash to Friedland’s summer home. Later that night, Bobbins picked up the money (again in cash). There were no receipts exchanged in any of these transactions.
On June 27, respondent Querques appeared at the Wood-bridge Municipal Court with Di Gilio “as a favor” to Fried-land who was on vacation. He had prepared a general release to Pereira signed by Di Gilio. Bobbins had told Pereira that he could not appear in municipal court on Pereira’s behalf because of his position as municipal prosecutor. Nevertheless, as the Master found, Bobbins prepared a release to Di Gilio and assured Pereira that he would be in the building. For the purpose of the hearing on June 27, Pereira retained another attorney who witnessed his signing of the withdrawal.
3
True to his promise, Bobbins was in the municipal building and indeed was present in the courtroom when the charges were dropped. He was displeased that Pereira had another attorney present and he caused Pereira to send the other attorney away. After noticing Bobbins’ presence in the courtroom, the magistrate said, “Good morning, Prosecutor,”
After the hearing at the Woodbridge Municipal Court, Robbins found himself in an awkward position. Pereira was insistent that he receive his payment for dropping the charges. Robbins had the cash in the back of his desk drawer, but said he could not disburse the funds until the county prosecutor approved the withdrawal of the criminal complaints. Friedland, on the other hand, testified that he was “irritated” that the funds were not paid out, although this testimony is incredible in light of the terms of the settlement. At this juncture, Pereira became distrustful of Robbins and taped several telephone calls between Robbins and himself regarding Robbins’ refusal to pay out the moneys. The tapes of these telephone calls make it plain that Robbins understood fully that the quid pro quo for the $6,500 was the dropping of the criminal complaints and that the money could not be disbursed until they were finally “no billed.” When Pereira became disgusted and suggested that he might reinstate the criminal complaints, Robbins told him that would be “ridiculous” and to “wait a little longer.” Robbins repeatedly called the prosecutor’s office in an effort to get prosecutorial approval for a dismissal of the charges. The county prosecutor testified that he believed Robbins was acting in his role as municipal prosecutor and Robbins did nothing to dispel that impression. In one of the taped telephone calls, Robbins admitted to Pereira that he had never
Eventually, on August 30, 1968, the Middlesex County Grand Jury returned a no bill against Di Gilio. 4 Shortly thereafter Robbins turned over the funds to Pereira withholding a $1,000 fee and an additional $500 which he had personally loaned Pereira.
It is worth noting that during this entire period, ranging from the time they entered the case until December 1968, after the whole matter came to public attention, neither Robbins nor Eriedland kept a file on the case, neither wrote or received any letters, and neither gave a receipt for fees received. Despite the long period during which Robbins had possession of the $6,500 in cash he never deposited the money in his trust account; instead he kept it in the back of his desk drawer. In short, the atmosphere surrounding all matters associated with the Di Gilio loan and the events before and after the dismissal of the criminal complaints was one of secrecy, and aside from the numerous violations of court rules which respondents Eriedland and Robbins were guilty of in an effort to keep the matter secret, 5 the secrecy itself belies their testimony that they believed their conduct to be wholly innocent.
The basic contention of the three respondents is that they participated in the negotiations of a valid settlement of a
At common law, compounding an offense in agreeing not to prosecute it was a crime. State v. Leeds, 68 N. J. L. 210 (Sup. Ct. 1902). A person wronged by the criminal act of another may accept restitution for the civil wrong done to him, but he cannot lawfully agree not to prosecute the crime. The reason is that private vindication of the injury done to the victim does not vindicate the public interest in securing justice. Procuring compensation for the victim of a crime is subordinate to the State’s interest in causing crimes to be punished. Of course, for a person to be guilty of compounding an offense, the underlying offense must have been actually committed.
Respondents say they are not guilty of the crime of compounding because Di Gilio was later acquitted of the criminal charges. But respondents are not charged here with committing the crime of compounding and hence we are not
We conclude, as did the Master, that the respondents were guilty of unethical conduct in connection with the dismissal of the criminal charges against Di Gilio. However, we believe that respondent Querques was less culpable than either Robbins or Eriedland. While the Master found and we agree that Querques was fully aware of the nature of the negotiations between Robbins and Eriedland, that he prepared the final release from Di Gilio, and that he appeared in court in Eriedland’s stead, we nonetheless believe that he should be subject to less discipline than the other two respondents. He did not arrange the bargain and his participation in it was minor compared to that of Eriedland and Robbins.
Respondent Robbins was also found by the Master to be guilty of a conflict of interest in carrying out his duties as municipal prosecutor and his duties as attorney for Pereira.
In the future, should an attorney wish to have complaints dismissed by his client he must first go before the prosecutor and a judge and make a full and open disclosure of the nature of the charges and the terms, if any, under which the dismissal is sought. The dismissal should not be consented to unless both the judge and the prosecutor are satisfied that the public interest as well as the private interests of the complainant will be protected. Obviously, a consent could never be given in a case such as the present one involving a vicious loan shark scheme enforced through threats and violence. Rather, the nature of the charges cried out for further public investigation and exposure.
Since this type of conduct has not previously been before us in a disciplinary proceeding, we feel that the fulfillment of our duty and the interests of the profession and the public will best be served by a lesser penalty than shall be meted out in future cases of this kind. Accordingly, we suspend respondents Robbins and Eriedland from the practice of law for a period of six months. Respondent Querques is suspended for a period of three months.
For suspension for six months—Chief Justice Weintratjb and Justices Jacobs, Eranois, Proctor, Hall and Schettino—6.
Opposed—Hone.
Opposed—Hone.
Notes
This call contradicts Driedland’s testimony that he was not retained by Di Gilio until sometime after June 1, 1970. Since the attorney who called mentioned Friedland’s name to Robbins in May, it follows, and the Master so found, that Driedland had been retained prior to June 1.
Respondents also suggest that Pereira never intended to press the criminal complaints, but only instituted them for the purpose of forcing Di Gilio to repay the usuriotis interest. This suggestion is incredible. Pereira brought the complaints immediately following criminal threats and acts while in terror of his life and he did so at the suggestion of the State Police. He had not retained an attorney at this point, nor did he at that time press Di Gilio for repayment. Rather, as the Master found, it was Robbins who sought Pereira out and initiated -this proposal, and although Pereira was certainly a “willing client,” this would not be unexpected of him especially considering his financial straits.
The Master found this attorney to be innocent of any wrongdoing and we agree with that finding.
Later, in January 1969, after the matter reached public attention, Di Gilio and two others were indicted by the Middlesex County Grand Jury on charges arising out of the loan transaction. Di Gilio was eventually acquitted of these charges.
The Master found that Bobbins and Friedland were guilty of violating several of the rules then in effect. He found both guilty of violating
R. R.
l:12-5(a) (1) in failing to deposit the $6,500 in their trust accounts;
R.
N. J. S. A. 2A :119A-1 et seq. making loan sharking a criminal act did not become effective until November 18, 1968.