Opinion
Criminal No. 02-540-03.
May 19, 2004
MEMORANDUM
IN RE: RULE TO SHOW CAUSE AS TO WHY LARRY BRONSON, ESQUIRE, A MEMBER OF THE NEW JERSEY BAR, SHOULD NOT BE SANCTIONED
The issue presented is whether sanctions should be imposed against Larry Bronson, Esquire ("Bronson") who appeared as counsel for Defendant in this case.
Defendant Jonathan Sharara ("Sharara") had been arraigned on October 21, 2002, and entered a not guily plea. Bronson entered his appearance as counsel for Sharara on January 16, 2003. The Court was then advised that Defendant Sharara desired to plead guilty and set a hearing for January 24, 2003. At that time, Bronson appeared and represented the Defendant through a thorough colloquy resulting in the Court accepting Sharara's guilty plea to the charges. At the guilty plea hearing, the Defendant and Bronson signed a guilty plea agreement.
After numerous continuances requested by Bronson and granted by the Court, sentencing was scheduled for May 21, 2003.
A Pre-Sentence Report was prepared and Bronson, again acting as counsel for the Defendant, submitted letters to the Court objecting to portions of the Pre-Sentence Report. Again acting as Defendant's counsel, Bronson contacted the Court's deputy clerk on several occasions requesting changes in the sentencing hearing to accommodate his schedule. At his specific request, the sentencing was set for May 21, 2003.
As recounted on the record at the sentencing hearing, Mr. Bronson failed to appear. His secretary called chambers at approximately 9:00 a.m. and advised chambers staff that he had missed the train and was about to drive. The Court delayed the beginning of the sentencing hearing. Approximately one hour later, Bronson called and said he was no longer coming. The hearing began. Defendant was present and a member of the New York Bar, Elan Baret, stated he would like to represent the Defendant for purposes of explaining the Defendant's position viz-a-viz Bronson. The colloquy shows that although Mr. Baret knew the Defendant, he was not prepared to represent the Defendant at a sentencing on that date, and that he was not a member of the Bar of this Court. The Defendant indicated great disappointment that Bronson was not there, that he had called Bronson many times, had paid all the fees that were requested and although he did not use this term, indicated that he felt abandoned by Bronson.
The Court ruled that as Defendant indicated that he no longer had any funds to retain counsel, and that Bronson by his conduct did not appear to intend to represent Defendant, that the Court should appoint new counsel to represent Defendant, and did so that same day.
Following the hearing, the Court issued an Order requiring Bronson to show cause why he should not be sanctioned for failing to appear at the sentencing hearing on May 21, 2003, and also, for appearing in this Court to represent Defendant at the change of plea when he was not a member of the Bar of this Court, as required by Local Rule 85.5, and did not have associate local counsel of record for purposes of representing Defendant in this case, as required by Local Rule 83.5.2.
The scheduled hearing date on sanctions was changed to June 2, 2003 to accommodate Bronson's schedule.
Bronson appeared and advised the Court that he had every intention of appearing on May 21, 2003, that he was unable to get on a train because Amtrak required a photo identification and the only one he had in his custody was an expired driver's license which was not accepted. After he missed the train, Bronson spoke to Mr. Baret by telephone and Mr. Baret told him that he would take care of matters before the Court and Bronson should not attend. Bronson then returned to his office, and called the undersigned's chambers, that he was not coming. Bronson further stated that he had reason to believe that Mr. Baret and Defendant had concocted a scheme to prevent Defendant from being sentenced that day, and that part of that scheme was making misrepresentations to Bronson that led to Bronson's decision not to appear in Court.
Bronson also indicated that Mr. Baret had once worked for him, but Bronson had fired Mr. Baret because Mr. Baret was not responsible and Bronson had a lot of problems with Mr. Baret's behavior.
As to Bronson's violation of Local Rule 83.5, appearing in this case when not a member of the Bar of this Court, Bronson acknowledged that he neglected his responsibility to retain associate counsel under Local Rule 83.5.2. However, Bronson claimed that he had received an oral waiver of this requirement from an unnamed Magistrate Judge at the arraignment of the Defendant, and had intended to retain his brother or cousin, who are members of the Bar of this Court, to appear as associate counsel, but neglected to do so. See transcript of proceedings on June 2, 2003 at pp. 10-12. This explanation itself is difficult to accept because the Court's records do not show that Sharara had a lawyer at the arraignment on October 21, 2002. Bronson faxed a letter to the undersigned's chambers dated January 16, 2003, enclosing a copy of his entry of appearance. The Court records do not show any earlier apperance for Bronson.
Given Bronson's testimony about the problems he had previously with Mr. Baret, it is difficult to understand why Bronson would rely on Mr. Baret when Mr. Baret represented to Bronson that Mr. Baret would take care of the sentencing of Defendant before this Court. Indeed, from his own statement about his experiences with Mr. Baret, Bronson should have been leery of relying upon anything Mr. Baret said.
After Bronson had given his explanation and apologies at the hearing on June 2, 2003, the Court inquired as to why Bronson had initially advised the Court that although he started by train, but was going to drive, but then shortly thereafter advised the Court by telephone that he was not appearing.
How can you take a phone call from Mr. Baret as excusing you from appearing in front of the Court?
MR BRONSON: I didn't take it as excusing me. What occurred was, Judge, I asked Mr. Baret, if he would ask the Court for permission to handle the sentence. He told me that he would do that and he would handle the sentence.
He's a member of the Bar in New York, he's a member of the Federal Court Bar in New York and I assumed that he would act truthfully. And if there was a problem, he would have advised me and then, I would have jumped in the car and come to Philadelphia.
* * *
THE COURT: All right. Well, you agree that your only communication with my chambers was to call back — you called once and said, you missed the train and you're driving. And then, you called a second time and said, you weren't coming, is that right?
MR. BRONSON: Right. That Mr. Baret was handling it.
THE COURT: Well, don't you think you had some obligation to either have a conference call with me and Mr. Baret? You're the counsel of record and to have some clear communication with the Court as to what was going to happen?
MR. BRONSON: Your Honor, I thought Mr. Baret was going to walk into your courtroom, be permitted to represent the defendant, because he was fully familiar with the —
THE COURT: But you didn't get the defendant's consent to that.
MR. BRONSON: Your Honor, I had the defendant's consent.
THE COURT: How?
MR. BRONSON: Because Mr. — Mr. Baret and Mr. Sharara are — are like fist in a — a hand in a glove, okay? They're — as you — as you saw in the record, he is his friend and he stated that and he was doing anything he could as sometimes a young lawyer will in order to have — get an advantage for a client that's inappropriate and that's what happened here.
He knew that, otherwise, he would have picked up the phone and told me the Judge — I'm asking for an adjournment, I'm not handling the sentence. And I would have called the — the Court and asked that your Honor hold the sentence or change it for the next day or I have got in my car — I had nothing else to do, because my trip to Washington was canceled, the trip was for the next day was canceled. I was sitting in the office waiting to hear and I never heard — never heard a word until I got your letter.
(Transcript, 6/2/03, pp. 13-14, 17-18).
More fundamentally, notwithstanding that Bronson is not a member of the Bar of this Court, his appearance before this Court on the date set for scheduling for Bronson's specific convenience, was highly mandatory. Bronson's excuses for not being present at Court are incredible.
An attorney who enters an appearance for a defendant, and then represents a defendant in a guilty plea proceeding, and continues to have his appearance of record, has a responsibility to appear for the client's sentencing. That obligation cannot be disposed of with a simple telephone call from another lawyer (who is not counsel of record and not a member of the Bar of this Court) — particularly in matters so important as the sentencing in a criminal case that has been scheduled, specifically at the convenience of the lawyer of record to appear. For Bronson to have abrogated his responsibility, even as he incredibly explained the circumstances, is a gross dereliction of his professional responsibility to his client, and his duties to the Court. Since Bronson had no hesitation in calling the Court's chambers on two occasions, on the day of sentencing to advise as to his being late and then that he was not coming, he should have at the very least requested a telephone conference in the courtroom so that Bronson, Mr. Baret and the Defendant could participate. If, as Bronson claims, Defendant was agreeable to Mr. Baret representing the Defendant, the appropriate waivers and understandings could have been placed on the record. However, by Bronson simply not communicating with the Court, except to announce his non-appearance, he failed in meeting his obligations to the Court as well as to the Defendant.
Because Bronson is not a member of this Court, the Court need not and does not take any disciplinary action except as to impose a monetary fine as a sanction for Bronson's failure to appear. As a result of his failure to appear, the attorney for the government is owed reimbursement in the amount of $401.00 for transportation expenses to Philadelphia on the day that sentencing had been scheduled. However, the Court was then compelled to appoint new counsel for Defendant Sharara, under the Criminal Justice Act because Sharara was impecunious and could not afford substitute counsel, and the Court approved payment to the new attorney in the amount of $4,104.00.
The Court believes that an equitable sanction of Bronson for his conduct is to require him to pay $4,505.00 within thirty (30) days.
Furthermore, the Court will send a copy of this Memorandum and the transcript of proceedings of June 2, 2003 to the New Jersey Office of Attorney Ethics, for such action as it deems appropriate.
An appropriate Order follows.
ORDER
AND NOW, this day of May, 2004, in connection with a Rule to Show Cause Why Larry Bronson, Esquire, A Member of the New Jersey Bar, Should Not Be Sanctioned, it is hereby ORDERED that Larry Bronson is sanctioned by the Court, and a fine of $4,505.00 is imposed upon him, to be paid to the Clerk of this Court within thirty (30) days.It is FURTHER ORDERED that the Clerk of this Court shall send a copy of this Memorandum and Order, and the transcript of June 2, 2003, to the State of New Jersey Office of Attorney Ethics.