In Re Infinito
In Re Infinito
Opinion of the Court
This disciplinary proceeding arose as a result of a presentment that was filed by the District XI Ethics Committee against respondent, a member of the bar, based upon respondent’s conviction for larceny of property valued at over $500.00 and conspiracy to commit larceny. After hearing on the present
We disagree and adopt instead the minority’s recommendation that respondent be suspended from the practice of law for three years retroactive to January 26, 1982.
I
The Board accurately sets forth the relevant facts in its Recommendation, viz:
“The respondent’s conviction resulted from the unauthorized use by respondent and his wife of funds which belonged to two adult sisters, Mary Ellen and Kathleen Leonardis. The sisters were placed in the respondent’s home during 1972 by a social worker from the Division of Mental Retardation (hereinafter Division). Both Kathleen and Mary Ellen had been institutionalized for most of their lives, and worked as domestics in a nursing home operated by Roman Catholic Nuns for four years prior to being placed with the Infinitos. During that time, each of the sisters had accumulated several thousand dollars in a savings bank near the housing home. The sisters were to act as live in domestic help in the Infinito home, and, in return, the respondent was required to pay Kathleen and Mary Ellen on a weekly basis. The respondent understood that $10.00 each was the appropriate amount. No contract or written understanding was made, and after the first several weeks, only semi-annual inspections were made by the Division.
“At hearing before the District XI Ethics Committee, the respondent advised that he initially paid the sisters by check, but they complained because of the inconvenience of going to the bank to cash the checks. Thereafter he gave them cash. After several months he paid them periodically as they needed the
“In December of 1974, after nearly two years with the Infinitos, Kathy and Mary Ellen were taken to their savings bank to close out their accounts and open new accounts closer to their new residence. Two checks were issued by the savings bank, one to Mary Ellen for $4,000.00 and one to Kathleen for $5,000.00. The balance of $260.35 was withdrawn in cash. On December 19,1974, the following day, the checks were presented to the Morris County Savings Bank. Two accounts were opened. The $4,000.00 check was deposited directly into one account opened in the name of Kathleen and Mary Ellen Leonardis. The second account was opened in the name of Marie Infinito, respondent’s wife. Four thousand dollars from the five thousand dollar check were deposited into that account. Prior to acceptance of that deposit by the bank, both Mrs. Infinito and respondent were required by the bank to endorse the check in question. The remaining $1,000.00 was received in cash and used by the sisters to purchase a color television set, as well as for clothing and Christmas gifts. Respondent testified before the Committee that he was not aware of the specific usage of the account opened in Marie Infinite’s name although he understood that withdrawals were made from time to time.
“In the Spring of 1976, respondent was first contacted by two social workers from the Division. Respondent’s wife had advised these Division employees that he had kept detailed records of disbursements to and expenditures on behalf of the Leonardis sisters, although he had not. When respondent was unable to produce complete records, the Division representatives suspected misappropriation of funds. Thereafter, at the Division’s insistance, respondent entered into an agreement with the Division to pay Kathleen $20.00 per week and to repay salary arrearages of $5,700.00 and savings account deficiencies of $3,598.15 as
“At the end of 1977, and subsequent to Mary Ellen’s death, the Division demanded full payment. When he did not comply with this demand, the Division referred the matter to the Morris County Prosecutor. A 13 count indictment was thereafter returned against respondent and his wife. Neither respondent nor his wife testified at trial. According to respondent, he was aware that his wife had made false statements to both the Division and the Grand Jury, and determined not to testify as a result. Convictions of both respondent and his wife were obtained on Counts 1 and 13, which charged theft of property valued at over $500.00 and conspiracy to commit larceny, embezzlement and violations of State election laws. An attempt at severance of the trial was unsuccessful and denial of severance was the only issue on appeal. Respondent received suspended concurrent sentences of from one to three years on both counts, and was placed on probation for two years. The sentencing judge wrote in the judgment of conviction:
“Intentional premeditated deliberate nature of offense requires custodial sentence but lack of prior record, restitution and lack of viciousness permit suspension of sentence.”
“At hearing before the District XI Ethics Committee, the respondent conceded that it was improper to open the account in his wife’s name and to fail to keep specific records to justify every withdrawal. He disclaimed any intent to steal the sisters’ funds. He further indicated that the account was opened in his wife’s name at the suggestion of a Mrs. Brightmen, who was then a social worker with the Division, to avoid jeopardizing any future need for SSI (Supplemental Security Income) benefits.
“The Committee concluded that respondent had violated DR 1-102(A)(3) by engaging in illegal conduct which adversely reflects on his ability to practice law, as well as DR 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The Committee noted, however, that respondent’s conduct which led to the conviction was neither as nefarious nor as calculating as the conviction standing alone might suggest. The Leonardis sisters were established as members of the family at the time the bank accounts were opened. The
“The Committee indicated that the circumstances of the offense and mitigating factors support a recommendation for leniency here.”
Upon a review of the full record, the Board accepted the Committee’s conclusion that respondent’s conviction for larceny of property valued over $500.00 and conspiracy to commit larceny clearly violated DR 1-102(A)(3) and (4). In reaching its decision that respondent should be suspended from practice for eighteen months, the Board, as did the sentencing judge and the Committee, gave serious consideration to the following mitigating factors:
The Board agrees that the “family” relationship between the Infinitos and the Leonardis sisters resulted in an informal attitude concerning the sisters’ funds. While this does not excuse the financial improprieties, it does render the offenses less heinous. The Board further accepts the Committee’s analysis of the character testimony submitted.
The respondent’s conviction did not arise from misconduct in the practice of law. His prior unblemished record and numerous civic and charitable contributions should not be overlooked. Similarly, the high regard felt for respondent by his peers in the legal profession as well as friends and neighbors must be considered.
II
A criminal conviction is conclusive evidence of guilt in disciplinary proceedings. Once an attorney is convicted of a crime, the sole question remaining for the Court is the measure of discipline to be imposed. In re Rosen, 88 N.J. 1, 3 (1981); In re Mirabelli, 79 N.J. 597, 602 (1979); In re La Duca, 62 N.J. 133, 136 (1973); In re Mischlich, 60 N.J. 590, 592-93 (1972); In re Isserman, 9 N.J. 269, 277-78, reh. den., 9 N.J. 316 (1952), cert. denied, Isserman v. Ethics Committee etc., 345 U.S. 927, 73 S.Ct. 706, 97 L.Ed. 1357 (1953), reinstatement granted, 35 N.J. 198 (1961).
Accordingly, we do not establish a hard and fast rule that requires a certain penalty be imposed upon conviction of a certain crime. Every disciplinary matter is factually different. Therefore, we judge every ease on its own merits.
Ill
Applying the above analysis to the facts of this case, we agree with the Board’s determination that respondent violated disciplinary rules. He violated DR 1-102(A)(3) by engaging in “illegal conduct that adversely reflects on his fitness to practice law,” and he violated DR 1-102(A)(4) by engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation.”
We recognize, however, the existence of mitigating factors, namely, respondent’s treatment of the Leonardis sisters as part of the Infinito family. In particular we note that even after respondent’s misconduct, the surviving twin, Kathleen, returned to the Infinito home and stayed for several weeks until she was able to find employment. Further, we find — as did the Committee, the Board, and the sentencing judge — that respondent’s
Nevertheless, despite our agreement with the Board’s analysis of the mitigating circumstances in this case, we disagree with the Board’s recommended penalty. Respondent has been convicted of crimes, and we think that the imposition of a eighteen month suspension from the practice of law is not sufficient discipline.
Accordingly, having given due consideration to all of the factors involved, we conclude that the interests of the public will be served properly by respondent’s suspension from the practice of law for a period of three years from January 26, 1982, the date of his temporary suspension, and until further order of this Court. We also impose upon respondent the obligation to reimburse the Administrative Office of the Courts for appropriate administrative costs, including the cost of producing transcripts.
So ordered.
Dissenting Opinion
dissenting.
I must respectfully dissent from the Court’s disposition.
I dissented in In re Hughes, 90 N.J. 32 (1982), because I agreed with Justice Schreiber that the mitigating circumstances there far outweighed the extent of the misconduct, and did not call for disbarment. I cannot find sufficient distinction between the cases that would enable me to judge this attorney any more favorably than Hughes was judged.
I share the sympathy of the majority for a lawyer who enjoys great respect in his community and even the affection of one of the victims. Yet we must accept the jury verdict.
I would disbar.
Dissenting — Justice O’HERN — 1.
ORDER
It is ORDERED that VINCENT J. INFINITO of MORRIS-TOWN be suspended from the practice of law for three years, effective January 26,1982, and until further order of this Court; and it is further
ORDERED that respondent reimburse the Administrative Office of the Courts for appropriate administrative costs, including the production of transcripts; and it is further
ORDERED that respondent continue to be restrained and enjoined from the practice of law during the period of his suspension and that he continue to comply with all regulations of the Disciplinary Review Board governing suspended, disbarred or resigned attorneys.
Reference
- Full Case Name
- In the Matter of Vincent J. Infinito, an Attorney at Law
- Cited By
- 61 cases
- Status
- Published