Opinion
DRB 20-033
02-08-2021
In the Matter of Michael Collins Smith An Attorney at Law
Lauren Martinez appeared on behalf of the Office of Attorney Ethics. Respondent appeared pro se. Timothy M. Ellis Acting Chief Counsel
Argued: July 16, 2020
District Docket No. XIV-2018-0571E
Lauren Martinez appeared on behalf of the Office of Attorney Ethics.
Respondent appeared pro se.
Timothy M. Ellis Acting Chief Counsel
DECISION
Bruce W. Clark, Chair
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a motion for final discipline filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-13(c)(2), following respondent's guilty plea and conviction, in the Superior Court of New Jersey, Burlington County, to third-degree possession of a controlled dangerous substance (amphetamine), contrary to N.J.S.A. 2C:35-10a(1). This offense constitutes a violation of RPC 8.4(b) (criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects).
For the reasons set forth below, we determine to grant the motion for final discipline and to impose a three-month suspension.
Respondent was admitted to the New Jersey bar in 2013 and to the Delaware bar in 2014. At the relevant times, he practiced law with Balick and Balick, LLC, a Delaware law firm. He has no prior discipline in New Jersey.
On September 4, 2019, following respondent's waiver of indictment, the Burlington County Prosecutor's Office issued an accusation charging him with third-degree possession of a controlled dangerous substance (amphetamine), contrary to N.J.S.A. 2C:35-10a(1). On September 24, 2019, respondent entered a guilty plea, acknowledged his commission of the crime, and agreed to pay a $1,000 penalty. Respondent allocuted that, on September 28, 2018, in Mansfield Township, he possessed amphetamine, which he had not acquired via a valid prescription.
N.J.S.A. 2C:35-10a(1) provides that "[i]t is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice. . . ."
The record reveals that, on the date of the incident, as respondent was traveling northbound on Route 295, a New Jersey State Trooper stopped him for speeding and searched his vehicle. The search uncovered the Adderall, which respondent claimed he used for work purposes.
The trooper arrested respondent and charged him with third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1); second-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:10.5a(4); disorderly persons possession of marijuana, contrary to N.J.S.A. 2C:35-10a(4); and disorderly persons possession of drug paraphernalia, contrary to N.J.S.A. 2C:36-2. In addition, respondent received summonses for driving while under the influence of alcohol or drugs, in violation of N.J.S.A. 39:4-50; reckless driving, in violation of N.J.S.A. 39:4-96; speeding, in violation of N.J.S.A. 39:4-98.24; and unsafe lane change, in violation of N.J.S.A. 39:4-88B.
The Honorable James J. Morley, J.S.C. entered a consent order admitting respondent to the Burlington County Pre-Trial Intervention Program (PTI) for a twenty-four-month period, with respondent's agreement to the following conditions: (1) report for PTI in Burlington County; (2) maintain employment; (3) submit to random urine monitoring; (4) comply with all terms of his voluntary agreement with the Delaware Lawyers' Assistance Program (Delaware LAP), including any recommended treatment; and (5) abide by the terms and conditions of the PTI program.
On October 11, 2018, Kim D. Ringler, Esq., who represented respondent at the time, reported his criminal charges and traffic offenses to the OAE. On October 16, 2018, respondent entered into consent agreements with the Office of Disciplinary Counsel, Supreme Court of the State of Delaware (ODC), and the Delaware LAP. The ODC agreed to stay respondent's disciplinary proceeding pending disposition of the criminal charges and respondent's compliance with certain conditions, including abstention from practicing law in Delaware and monitoring by the Delaware LAP. The Delaware LAP formal monitoring agreement required counseling and random alcohol and drug screening.
Meanwhile, on November 4, 2019, the OAE notified Ringler that it was aware of respondent's entry into the PTI program and informed her of the "pathway to accelerated suspension" pursuant to In re Schaffer, 140 N.J. 148 (1995). After Ringler stated that she no longer represented respondent, the OAE directly informed him of his eligibility for an accelerated suspension. Respondent, however, did not pursue that option. Hence, the OAE filed the instant motion for final discipline.
In respondent's brief, he asserted that, after graduating from Seton Hall Law School, in 2012, he worked for McCarter & English until December 2015, two months after he had moved to Delaware. Since then, respondent has lived and practiced law in Delaware. He does not practice in New Jersey and claims that he has no intention of doing so.
According to respondent, he is not a drug addict. Moreover, he asserted that Adderall is materially different from other controlled substances, such as cocaine, ecstasy, or crack. According to respondent, nearly a quarter of all college students use Adderall, which also is "widely used in law schools," with or without a prescription. He claimed that the drug increases "focus and stamina," thus, "increasing work quality and quantity." Respondent further asserted that, unlike cocaine, ecstasy, and crack, Adderall is classified as a controlled dangerous substance not because it is intoxicating, but rather because of its potential for abuse.
In mitigation, respondent requested that we consider that he reported his arrest within a week; that, since then, he has been "subject to monitoring, drug testing, therapy and more at all times;" and that he had "voluntarily abstained from the practice of law for over a year."
The record contains several documents that shed light on respondent's treatment, compliance, and character. On January 15, 2020, Carol P. Waldhauser, the Executive Director of the Delaware LAP, wrote that she first met with respondent in October 2018, at which time he expressed remorse and was willing to take responsibility for what she described as his "isolated poor judgment during this period in his life." At that time, he agreed to enter into a formal monitoring agreement with the Delaware LAP.
Since October 2018, Waldhauser has worked with and observed respondent on a weekly basis. According to Waldhauser, respondent has, and continues to be, "more than compliant with [the] formal monitoring agreement." He has not missed any telephone check-ins, weekly meetings with Waldhauser, or random drug screenings, all of which have been negative. In addition, respondent has attended continuing legal education programs on lawyer wellness and stress management, in addition to his regular attendance at the Delaware LAP resilience training group.
Waldhauser concluded that respondent's "conduct, general character and professional standards could not be better;" that he is "a man with focus, clarity and commitment to wellness;" and that his "prognosis for continued success was . . . very good with the safeguards that he has placed in his life."
Four lawyers, with whom respondent has worked, submitted letters of support in his behalf. The letters attested to respondent's intellect; his skill as a lawyer; his forthrightness about the arrest; his remorse; his devotion to his family; and his good character.
Following a review of the record, we determine to grant the OAE's motion for final discipline. Final discipline proceedings in New Jersey are governed by R. 1:20-13(c). Under that Rule, a criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-13(c)(1); In re Magid, 139 N.J. 449, 451 (1995); and In re Principato, 139 N.J. 456, 460 (1995). Respondent's conviction of third-degree possession of a controlled dangerous substance (amphetamine), contrary to N.J.S.A. 2C:35-10(a)(1), thus, establishes a violation of RPC 8.4(b). Pursuant to that Rule, it is professional misconduct for an attorney to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." Hence, the sole issue is the extent of discipline to be imposed. R. 1:20-13(c)(2); In re Magid, 139 N.J. at 451-52; and In re Principato, 139 N.J. at 460.
In determining the appropriate measure of discipline, we must consider the interests of the public, the bar, and the respondent. "The primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar." In re Principato, 139 N.J. at 460 (citations omitted). Fashioning the appropriate penalty involves a consideration of many factors, including the "nature and severity of the crime, whether the crime is related to the practice of law, and any mitigating factors such as respondent's reputation, his prior trustworthy conduct, and general good conduct." In re Lunetta, 118 N.J. 443, 445-46 (1989).
That an attorney's conduct did not involve the practice of law or arise from a client relationship will not excuse an ethics transgression or lessen the degree of sanction. In re Musto, 152 N.J. 165, 173 (1997). Offenses that evidence ethics shortcomings, although not committed in the attorney's professional capacity, may, nevertheless, warrant discipline. In re Hasbrouck, 140 N.J. 162, 167 (1995). The obligation of an attorney to maintain the high standard of conduct required by a member of the bar applies even to activities that may not directly involve the practice of law or affect his or her clients. In re Schaffer, 140 N.J. 148, 156 (1995).
In sum, we find that respondent violated RPC 8.4(b). The only remaining issue is the appropriate quantum of discipline to be imposed for respondent's misconduct.
The OAE recommends a three-month suspension. Respondent requested that we impose an admonition. In the event of a suspension, he requested that we impose it retroactively, based on his voluntary abstention from the practice of law.
A three-month suspension is generally the appropriate measure of discipline for an attorney's possession of a controlled dangerous substance (CDS). See, e.g., In re Musto, 152 N.J. at 174 (possession of cocaine and heroin); In re Holland, 194 N.J. 165 (2008) (possession of cocaine); In re Sarmiento, 194 N.J. 164 (2008) (possession of ecstasy); and In re McKeon, 185 N.J. 247 (2005) (possession of cocaine).
In some cases, however, the Court has refrained from imposing a suspension. See, e.g., In re Ten Broeck, 242 N.J. 152 (2020) (censure, with conditions, for attorney's unlawful possession and use of cocaine; the attorney successfully completed all conditions of the PTI program; participated in the New Jersey Lawyers Assistance Program; attended counseling; and submitted negative urinalysis results; the attorney also established significant rehabilitation and remorse, including regularly donating blood, regularly attending meetings for current and former law enforcement officers and lawyers, and traveling to self-help recovery meetings to speak about his experience and recovery); In re Caratzola, 241 N.J. 490 (2020) (censure, with conditions, for attorney's unlawful possession and use of oxycodone; mitigation included the attorney's extreme youth and rehabilitative efforts); In re De Sevo, 228 N.J. 461 (2017) (censure imposed on attorney against whom an accusation and an indictment had issued for two separate incidents involving his possession of CDS (cocaine); the attorney was admitted into the PTI program for a twelve-month period, which he successfully completed; the attorney had participated in four inpatient drug treatment programs and an intensive out-patient program, followed by a period of time living in a half-way house, and then a sober living house where he served as an active member for almost two years; in addition to attendance at more than 1, 000 recovery meetings, the attorney had a sponsor and, in turn, sponsored two men, and had been clean and sober for forty-one months; professionally, after he had been away from the practice of law for two years, a law firm hired the attorney as the director of litigation, where he handled a number of cases that were resolved successfully; because the attorney had made great strides to achieve rehabilitation, had successfully and diligently returned to practice, and had moved on with his personal life, we found that a suspension would be demoralizing and could derail his rehabilitation efforts; prior admonition); In re Simone, 201 N.J. 10 (2009) (censure for attorney charged in Florida with possession of crack cocaine; the attorney was admitted to the Florida Drug Court Program, which was equivalent to New Jersey's PTI program; we considered that the attorney had successfully completed inpatient treatment; attended twice weekly counseling sessions after his release from inpatient treatment, and then weekly sessions; attended ten to twelve Alcoholics Anonymous meetings per week; successfully completed PTI, resulting in the dismissal of all criminal charges against him; and submitted clean drug screens to the OAE and to us; in addition, the drug court judge believed that the attorney was doing so well with his recovery, he could inspire others, and, thus, invited him to address a drug court graduation, which the attorney accepted); and In re Filomeno, 190 N.J. 579 (2007) (censure for attorney arrested for possession of cocaine and drug paraphernalia; numerous mitigating circumstances considered, including the attorney's quick action to achieve rehabilitation; his attendance at 415 meetings in that process; his instrumental role in re-establishing the New Jersey Lawyers Concerned for Lawyers Program meetings in Bergen County, the fact that he acted as a "very distinctive and helpful role model," from which other participants in that program profited; his conclusion of the PTI program three months early because of his commitment and diligence in exceeding its terms; and his expression of deep regret for his conduct).
In our view, this case warrants a three-month suspension. In mitigation, respondent has no disciplinary history; he has demonstrated remorse; and he has complied with the conditions imposed on him by the ODC and, presumably, he is complying with his PTI obligations in New Jersey. However, nothing in the record suggests that respondent is doing anything above and beyond the requirements imposed on him, as did the attorneys in Ten Broeck, De Sevo, Simone, and Filomeno. Thus, there is no basis for imposing less than a suspension. Moreover, the facts in the record provide a basis to conclude that respondent was operating a motor vehicle while under the influence of drugs and in possession of illegal marijuana. Thus, there is no reason to deviate from the standard form of discipline in cases involving possession of CDS.
Finally, we deny respondent's request that the suspension be retroactive. His voluntary withdrawal from the practice of law in Delaware bears no relation to his continued ability to practice law in New Jersey. To impose a retroactive suspension would amount to no meaningful sanction on respondent, in New Jersey, for his misconduct.
Finally, respondent's attempt to persuade us that there is a "meaningful difference" between Adderall and drugs such as cocaine, ecstasy, and crack and, thus, he should receive less than a suspension, is disturbing. Respondent asserted that Adderall is different because (1) it is used by students in institutions of higher learning for the purpose of "increas[ing] focus and stamina . . . work quality and quantity," and (2) it is non-intoxicating. We reject these hollow arguments. Respondent produced no evidence that he has been diagnosed with any condition that Adderall is prescribed to treat. To the contrary, he admittedly used Adderall "for work purposes," thus, rendering his use of the drug illegal.
We, thus, determine that a three-month suspension is the quantum of discipline necessary to protect the public and preserve confidence in the bar.
Chair Clark and Members Petrou, Rivera, and Singer voted to impose a censure.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.
DISSENT
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey:
We write separately to express our disagreement with the five-member Board majority who recommend suspending respondent for three months based on his conviction for 3rd-degree possession of a controlled substance, amphetamine (Adderall pills), a conviction which will be nullified after he successfully completes the 24-month pre-trial intervention program into which he was admitted. Unlike the majority, we believe that respondent should be censured for his unfortunate decision to use Adderall without a prescription.
The Court first confronted the question of discipline for attorneys who possess illegal drugs for personal use over thirty years ago in 1987, in In re McLaughlin, 105 N.J. 457 (1987). There, while reprimanding three attorneys because it was the first ethics case involving personal drug use, the Court warned that such a drug offense in the future "will ordinarily call for suspension." Id. at 462. Ten years later in In re Musto, 152 N.J. 165, 173 (1997), the Court reiterated this pronouncement, saying that "a three-month suspension is generally the appropriate measure of discipline for an attorney's possession of a controlled dangerous substance."
Following Musto's guidance, numbers of disciplinary cases thereafter, some cited by the majority, adjudicated three-month suspensions for attorneys who possessed illegal substances for their own use. But as years passed, more and more exceptions arose in which both the Board and the Court recognized that an attorney's drug addiction and how he or she dealt with it after being confronted with an arrest deserves a closer, more nuanced evaluation in order that (a) the decision be sensitive to personal circumstances of such respondents who often are victims of their own addiction, In re Schaffer, 140 N.J. 148, 153 (1995) ("[d]etermining the appropriate measure of discipline . . . is extremely fact-sensitive"); and (b) the discipline not be purely punitive. In re Principato, 139 N.J. 456, 460 (1995) ("primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar"). Perhaps, too, the Court has come to recognize drug addiction for the serious disease it is.
Indeed, the majority in its current decision cites and discusses five cases decided since Musto where the Court has not imposed a suspension but opted for censure instead. In re Ten Broeck, __ N.J. __ (2020) (cocaine); In re Caratzola, 241 N.J 490 (2020) (oxycodone); In re De Sevo, 228 N.J. 461 (2017) (cocaine); In re Simone, 201 N.J. 10 (2009) (crack cocaine); In re Filomeno, 190 N.J. 579 (2007) (cocaine and drug paraphernalia). Each of these five cases is factually more closely related to the current matter than are the suspension cases. A core consideration in each of these, although not clearly articulated, seems to be the recognition that drug addiction is a disease, usually one that is not easy to control, often attributable to unfortunate life circumstances and, therefore, although the law classifies possession of these substances as a crime, simple drug possession for personal use can rightly be viewed more sympathetically than other types of criminal acts. This understanding is the reason that "drug courts" have been developed in many jurisdictions and why pretrial diversion is often offered to persons accused of these types of drug possession offenses.
We believe that respondent's case is more similar to the above censure cases than to the suspension cases cited by the majority. Indeed, the very criteria that guided the Board to censures in those cases are for the most part present here.
Moreover, we do not believe that the majority opinion adequately credits respondent's actions in dealing with his addiction and in taking responsibility for his actions following his arrest. Accordingly, we first discuss the positive steps he has taken since then and other mitigation that should weigh in his favor but is not recognized or sufficiently credited by the majority.
Respondent, who has no disciplinary history, was arrested on September 28, 2018, over two years ago and, through counsel, self-reported his arrest to the Office of Attorney Ethics within two weeks. He also immediately reported his arrest to his law firm employer, his wife, and to State of Delaware ethics authorities, taking full responsibility for his actions. In fact, as early as October 12, 2018, only two weeks after his arrest, he entered into an agreement with Delaware's Office of Disciplinary Counsel (ODC) agreeing to voluntarily withdraw from the practice of law pending disposition of the New Jersey criminal case, to execute a formal monitoring agreement with Delaware's Lawyer's Assistance Program (LAP), and to remain in active treatment with a mental health provider. Pursuant to that agreement, a few days later, on October 16, 2018, he signed a formal Monitoring Agreement with Delaware's LAP, agreeing among other things to meet in person with LAP's monitor twice monthly, undergo random drug/alcohol screenings, abstain from using mind-altering drugs except as prescribed, and remain in active treatment with a licensed mental health treatment provider for as long as deemed necessary. (See "Formal Monitoring Agreement" in the record of this case).
The practical effect of respondent's agreement with the ODC was his voluntary abstention from the practice of law, which also applied to his practice in New Jersey. He did not again practice in Delaware until December 13, 2019, the date when he resolved his ethics case in Delaware by agreeing to accept a private admonition - the discipline imposed by that State's ethics authorities.
In New Jersey, respondent also quickly accepted responsibility for his actions, agreeing to enter a provisional guilty plea on an accusation, waive indictment, and comply with conditions imposed when he was accepted into the pretrial intervention program (PTI).
It is relevant that Delaware, the State where respondent lives and has his practice, did not suspend him but that, after extensive investigation, the only discipline it imposed was a private admonition.
Respondent has expressed sincere remorse for his actions. As shown in the reference letters written by attorneys with whom he works, he expressed remorse to them and did so in letters written to this Board. An overriding theme in all these letters is that respondent is sincerely remorseful, completely transparent about what happened, and never tried to excuse or minimize it. For example, in a letter dated October 30, 2019, Bartholomew Dalton, a partner in the firm where respondent works, said that respondent was "in his office the next day" after his arrest, telling me "everything that had happened .... It would be a vast understatement to say that he is remorseful.... Respondent is truly a good honest person.... He will be a credit to the Delaware Bar as soon as it is fairly determined that he may continue his career." The November 1, 2019 letter of Adam Balick, another partner with whom respondent works, says that there has never been "any suggestion of . . . substance misuse" by respondent who "has been a dependable employee in every respect, from showing up to work prepared, to his courteous and respectful interactions with staff, colleagues and the court." The Balick letter says that respondent called him the day after his arrest, reported what had happened, left out no details, was humiliated by what he had done, "made no attempt to minimize it" and although it was a "low moment for him professionally and personally, he was concerned about any embarrassment his actions could cause the firm." The letter mentions his "genuine remorse" and the fact that "he made no excuses" even though he "did not know how I would respond" and "thought that his job was in jeopardy." The letter explains the high financial and emotional price that respondent paid for his actions.
Additionally, respondent engaged wholeheartedly in therapy, as detailed in the letter from Carol Waldhauser, Executive Director of the Delaware LAP, who worked with him extensively. As she wrote in a January 15, 2020 letter, she first met with respondent in October 2018 at which time he "showed remorse and wanted to take responsibility." Waldhauser worked with him on a "regular weekly basis," saying, "[f]rom our first in-depth meeting, through numerous subsequent telephone conferences and in-person meetings, [respondent] has been in the past and continues presently to be more than compliant with our formal Voluntary Monitoring Agreement;" he has not missed one telephone check-in, in person meetings, random urine and hair follicle screenings. She pronounced respondent's "attitude towards treatment" to be "very good to excellent," adding that respondent attends continuing legal education seminars on lawyer wellness and stress management and regularly attends our resilience training group. She concluded, saying that respondent's "general moral character and professional standards could not be better.... I observe [respondent] as a man with focus, clarity and commitment to wellness."
We note the following factors mentioned in DRB opinions that steered decisions in prior cases to censures rather than suspensions: (1) the respondent's demonstrated willingness to take continuing, wide-ranging rehabilitative action to battle addiction (Caratzola; Ten Broeck; De Sevo; Simone; Filomeno); (2) youthfulness (Caratzola); (3) efforts to rehabilitate others and/or serving as helpful role model to others (Caratzola; Simone; Filomeno); (4) sincere remorse (Ten Broeck; Filomeno); (5) admission of criminal conduct and ethics violation (Ten Broeck); (6) no disciplinary history (Ten Broeck); (7) respondent self-reported his conduct (Filomeno); (8) respondent suffered other serious consequences of his act(s) (Ten Broeck -- loss of employment as police officer); (9) self-reporting of arrest to disciplinary authorities; (10) passage of time since arrest during which respondent moved on with his personal and professional life such that a suspension could be demoralizing and derail rehabilitation efforts (De Sevo).
The most important factor and the only one universally noted as mitigation in all five censure cases was a respondent's sincere, extensive, successful rehabilitative efforts. Here, such rehabilitative efforts have likewise been documented. Also present here are respondent's sincere remorse; lack of any disciplinary history; prompt admission of criminal conduct and violation of the charged RPC; youthfulness (respondent had been a lawyer for only five years when he was arrested); passage of two years since respondent's arrest during which time he became eligible to practice law in Delaware following termination of his agreement with Delaware's ODC; self-reporting the criminal conduct; and the serious financial and emotional toll that his arrest has taken on him over the past two years. The only factor mentioned in some of the above censure cases that is not present here is evidence that respondent has served as a role model for others or assisted others in their rehabilitation efforts.
Additionally, this case may be seen as distinguishable from the suspension cases on which the majority relies, all of which involved the Schedule II narcotic drug, cocaine, or the Schedule I drug, Ecstasy (MDMA). This case involves possession without a prescription of Adderall whose major constituent is amphetamine, a stimulant, which we understand is used by many college students to help them concentrate during long hours of study and is routinely prescribed to teens and younger children with difficulty concentrating in school to treat the effects of ADD and ADHD. Although Adderall is illegal when obtained without a prescription, its use may be viewed less harshly because it is a common prescription drug with accepted medical use and is not mind-altering. On the other hand, Schedule I Controlled Substances such as Ecstasy are those having "no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse." 21 U.S.C. § 812(b)(1).
It should be noted that censures rather than suspensions were imposed for possessory drug offenses even where a respondent had a disciplinary history (admonition) and was arrested two times in two separate incidents for drug possession (De Sevo); and, in another case, where respondent not only was practicing law but also was serving as a police officer, even though illegal acts undertaken while a public servant are usually an aggravating factor (Ten Broeck).
In short, we believe that this young lawyer with no prior ethics history did everything right to combat his habitual drug habit and promptly face his criminal charge with appropriate, sincere remorse. He has suffered financially and emotionally over the past two years and now, hoping to put all this behind him, has returned to practice in Delaware in a firm that welcomed him back. Suspending him from practice in New Jersey would, we believe, inappropriately and punitively stain his professional record to an unwarranted degree. A censure is sufficient discipline under these circumstances.
Disciplinary Review Board
Bruce W. Clark, Esquire, Chair
Peter Petrou, Esquire
Eileen Rivera
Anne C. Singer, Esquire