IMO J. DAVID ALCANTARA, AN ATTORNEY AT LAW
Case Date: 12/01/1995
Docket No: SYLLABUS
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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions
of any opinion may not have been summarized).
Argued September 27, 1995 -- Decided December 1, 1995
PER CURIAM
J. David Alcantara was admitted to practice law in New Jersey in 1988 and practices law in Ventnor, New Jersey.
In 1992, Alcantara represented Wilfredo Carmona in connection with an indictment for third-degree theft of a church bell.
Carmona elected to go to trial while three co-defendants entered guilty pleas. The codefendants agreed to testify for the State
against Carmona. It is alleged that Alcantara engaged in improper and unethical conduct by attempting to persuade two of the
co-defendants not to testify against Carmona.
Lonnie Campbell and Johnny Nieves, co-defendants of Carmona, were each represented by an attorney. As part of
plea agreements, Campbell and Nieves pled guilty to third-degree theft and agreed to testify for the State at Carmona's trial. In
return, the State agreed to recommend noncustodial terms.
On March 20, 1992, Campbell and Nieves appeared in court for sentencing. Because they had not yet testified in the
Carmona trial, Atlantic County Assistant Prosecutor Housel requested and was granted a postponement of the sentencing. Shortly
thereafter, Housel discovered that Alcantara had improper conversations with Campbell and Nieves after the court appearance.
Campbell told Housel that Alcantara informed both he and Nieves that the prosecution intended to abandon the plea agreement
once they testified against Carmona and that they both should take the Fifth Amendment and not testify against Carmona.
Campbell further stated that Alcantara gave them business cards and asked them to make appointments to come in and discuss
the matter. The testimony of Nieves was consistent with that of Campbell. In addition, the attorneys for Nieves and Campbell
testified that Alcantara did not request permission to speak with their clients.
According to Housel, several weeks after March 20, 1992, Alcantara turned over to the Prosecutor's Office a video
tape recording that showed Campbell and Nieves engaged in an alleged drug transaction. Campbell and Nieves were prosecuted
and convicted for distribution of a controlled dangerous substance (CDS). The theft charge against Carmona eventually was
dismissed because the prosecutor was unwilling to forego prosecuting the CDS offenses in order to obtain favorable testimony
from Campbell and Nieves in the theft case against Carmona.
Alcantara testified that he was approached by a hispanic male while standing in the hallway outside the courtroom
and was asked by the man if he was a lawyer. The man told Alcantara that he had been charged with theft of a bell. Alcantara,
realizing that this man was a co-defendant of Carmona, identified himself as Carmona's attorney. Another man wearing a green
jacket also approached, but said nothing. Alcantara stated that he asked the hispanic man if he had a lawyer and that the man
told him yes but that he was unhappy with his lawyer. Alcantara gave both men a business card and told them to contact their
attorney so they could develop a united defense. Alcantara stated that this discussion lasted less than sixty seconds. Alcantara
further testified that Carmona gave him the video tape recording of the drug transaction and that, approximately two to three
weeks after March 20, 1992, he delivered the video tape to the Prosecutor's Office.
The District I Ethics Committee (DEC) concluded that the evidence was clear and convincing that Alcantara's
testimony was not credible and that the testimony of Campbell and Nieves was credible. The DEC found that Alcantara
committed unethical conduct by knowingly disobeying an obligation under the rules of a tribunal (RPC 3.4(c)); requesting a
person, other than a client, to refrain from voluntarily giving relevant information to another party (RPC 3.4(f)); communicating
with co-defendants who Alcantara knew or should have known were represented by other attorneys (RPC 4.2); violating the rules
SYLLABUS (D-13-95)Page 2
of professional conduct (RPC 8.4(a)); and engaging in conduct prejudicial to the administration of justice (RPC 8.4(d)). The DEC
recommended public discipline for those violations.
The Disciplinary Review Board (DRB) found that the testimony of the co-defendants was not credible and
recommended dismissal of the ethics complaint. The DRB also concluded that after the co-defendants entered guilty pleas they
were no longer parties to the criminal proceedings and Alcantara was, therefore, permitted to speak to them as witnesses without
permission from their attorneys.
HELD: J. David Alcantara is reprimanded for violating Rules of Professional Conduct 3.4(c), 3.4(f), 4.2, 8.4(a), and 8.4(b).
1. The DEC had the opportunity to observe the witnesses' demeanor and noted the consistency between their testimony and their
prior statements. In addition, the evidence concerning the video tape corroborates the co-defendants' testimony and contradicts
Alcantara's testimony. Considered in that light, there is a high degree of circumstantial probability of trustworthiness in the
testimony of Campbell and Nieves. (pp. 8-9)
2. The testimony of the attorneys and of Campbell and Nieves clearly and convincingly established that Alcantara spoke to the
co-defendants with the knowledge that they were represented by counsel and without the permission of counsel. The DRB's
conclusion that as witnesses, the co-defendants could be freely contacted by Alcantara is erroneous as a matter of law. When a
co-defendant enters a guilty plea with a lenient sentence recommendation conditioned on testifying against a co-defendant, the
testifying co-defendant is an adversary of the co-defendant who has elected to stand trial. Thus, on March 20, 1992, Nieves and
Campbell were adverse-party witnesses. Accordingly, it has been clearly and convincingly established that Alcantara violated RPC
4.2. (pp. 8-11)
3. The DRB's finding that there was no violation of RPC 3.4(f) because Alcantara's advice to Campbell and Nieves not to testify
favorably for the State was beneficial to them is erroneous as a matter of law. The rule provides for the conjunctive, and the co-defendants were not relatives or employees or other agents of Alcantara's client. Moreover, because the indictment was still
pending against Campbell and Nieves and the lenient sentence recommendation depended on their testifying truthfully against
Carmona, Alcantara could not reasonably have believed that advising co-defendants to take the Fifth Amendment or not to testify
truthfully would benefit them. The violation of RPC 3.4(f) has been established by clear and convincing evidence. (pp. 11-12)
4. An attorney who violates both RPC 4.2 by speaking to another attorney's client without permission and RPC 3.4(f) by
requesting that person to refrain from giving testimony favorable to the State, also violates RPC 3.4(c), RPC 8.4(a), and
5. Alcantara's unethical behavior was serious. However, it should be noted that: the DRB itself did not fully appreciate that
Alcantara's conduct was unethical and clearly violated RPC 4.2; the Court has never previously been required to explain the status
of a defendant in a criminal prosecution as a "party" to whom access is not available as it is to non-party witnesses; and the Court
has never addressed the appropriate discipline to be imposed on an attorney who violates RPC 4.2. Those considerations require
that full weight be accorded to mitigating considerations. (pp. 12-13)
6. Alcantara regrets his conduct; this was an isolated incident on an otherwise unblemished professional record; and he has also
performed pro bono legal services in the past. Therefore, under the circumstances, Alcantara is reprimanded for his unethical
conduct. But for the fact that this is the Court's first interpretation and application of RPC 4.2, Alcantara's discipline would have
been greater than now imposed by the Court. Members of the bar are cautioned that in the future the Court will ordinarily
suspend an attorney for the type of violation of RPC 4.2 that occurred in this case. (p. 14)
So Ordered.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
IN THE MATTER OF
J. DAVID ALCANTARA,
An Attorney at Law.
Argued September 27, 1995 -- Decided December 1, 1995
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Thomas J. McCormick, Assistant Ethics
Counsel, argued the cause on behalf of the
Office of Attorney Ethics.
J. David Alcantara argued the cause pro se.
PER CURIAM
Respondent represented Wilfredo (Junior) Carmona, who, along with three co-defendants, were indicted for third-degree theft of a church bell. Carmona elected a trial by jury while the three co-defendants entered guilty pleas and agreed to
testify for the State against Carmona. Thereafter, respondent is
alleged to have engaged in improper conduct when he attempted to
persuade two of the co-defendants not to testify against Carmona.
relevant information to another party (RPC 3.4(f)); communicating
with co-defendants whom respondent knew or should have known were
represented by other attorneys (RPC 4.2); violating the rules of
professional conduct (RPC 8.4(a)); and engaging in conduct
prejudicial to the administration of justice (RPC 8.4(d)).
Lonnie Campbell and Johnny Nieves, co-defendants of
Carmona, were represented by Brad Wertheimer, Esq. and Bernard
Sypniewski, Esq., respectively. They negotiated plea agreements
with the State in which Campbell and Nieves were required to
plead guilty to third-degree theft and testify truthfully for the
State in the trial of Carmona. For its part of the plea
agreement, the State agreed to recommend noncustodial sentences.
trial, Assistant Prosecutor Theodore Housel requested Judge
Hornstine to postpone sentencing Campbell and Nieves. In the
presence of counsel for Campbell and Nieves, the judge granted
the adjournment.
Housel also testified that between two and five weeks
following the March 20, 1992 incident, Alcantara turned over to
the prosecutor's office a video tape recording that showed
Campbell and Nieves engaging in an alleged drug transaction.
Carmona. . . . He told me not -- he
told me to plead the fifth and not
testify against them. If they wanted,
they could really stick it to us.
Campbell and Nieves stated that Alcantara threatened that
Carmona could incriminate them in other matters because Carmona's
cousin had made a video tape recording that contained images of
Campbell and Nieves engaging in a drug-related transaction.
Nieves stated, "[Alcantara] told us that if Junior Carmona wanted
to, he could really grow horns and be a devil."
his client, Carmona. Respondent stated that he identified
himself as the attorney for Carmona. Another man wearing a green
jacket approached respondent and said nothing. Respondent stated
that he asked the hispanic man if he had a lawyer, and the man
responded that he had a lawyer with whom he was unhappy.
Respondent gave both men his business cards and told them to
contact their attorneys so that they could develop a united
defense. Respondent stated that this discussion lasted fewer
than sixty seconds.
although the testimony of Campbell and Nieves was credible. In
assessing the credibility of Campbell and Nieves, the DEC placed
substantial reliance on the following factors:
(1) Campbell's and Nieves' versions of the
incident were consistent with one
another;
(2) Nieves' testimony regarding the March
20, 1992 incident was consistent with
the version he told to his lawyer
immediately after the incident
occurred;
(3) the testimony of Campbell and Nieves
regarding the video tape was
corroborated by Alcantara's actual
production of the video tape; and
(4) there was no way, other than through
Alcantara, that either Campbell or
Nieves could have obtained information
regarding the video tape.
The DRB, on the other hand, found that although "there is
sufficient evidence in the record to find that the witnesses
indeed had a conversation with respondent," it disagreed "with
the DEC findings as to the substance and relevance of the
conversation." The DRB found the testimony of "Campbell and
Nieves was not credible" without explaining why.
Our independent examination of the record persuades us to conclude that the testimony of Campbell and Nieves was credible. The DEC observed the witnesses' demeanor and noted the
consistency between the testimony of Campbell and Nieves and
their prior statements to their attorneys and Detective
Armstrong. "Consistency of testimony, both internally and
between witnesses, is an important indicator of truthful
testimony." In re Seaman,
133 N.J. 67, 88 (1993). In addition,
the evidence concerning the video tape corroborates their
testimony and contradicts respondent's testimony. Considered in
that light, we find a high degree of circumstantial probability
of trustworthiness in the testimony of Campbell and Nieves.
RPC 4.2 states that "[i]n representing a client, a
lawyer shall not communicate about the subject of
the representation with a party the lawyer knows to
be represented by another lawyer in the matter,
unless the lawyer has the consent of the other
lawyer or is authorized to do so." The Board
concluded that the word "party" is a term of art,
which specifically denotes "adversaries" - people
with opposing interests. In the "stolen bell
matter," Campbell and Nieves were no longer parties
or co-defendants in the matter; they were only
witnesses. As witnesses, they had the right to
talk to respondent without their attorneys being
present, if they so desired. RPC 3.4(f) states that a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information unless the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. The Board determined that respondent's advice to the witnesses not to testify would have benefitted the witnesses' interests, rather than adversely affect them. As with Carmona, without the witnesses' plea
agreement and with no other evidence available to
the prosecutor, the prosecutor would have had to
dismiss the charges against Campbell and Nieves.
Wertheimer testified that he saw respondent in the
courtroom at the time the adjournment of the sentencing motions
was being argued before Judge Hornstine. He stated that
respondent never requested his permission to speak to Campbell.
Similarly, Sypniewski testified that respondent never asked for
his permission to speak to Nieves. The testimony of the
attorneys and that of Campbell and Nieves clearly and
convincingly establish that respondent spoke to Campbell and
Nieves with the knowledge that they were represented by counsel
and without their attorneys' permission.
In representing a client, a lawyer shall not
communicate about the subject of the representation
with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized by
law to do so.
[RPC 4.2.]
The word "party" denotes "adversaries." The DRB found that
although Campbell and Nieves were co-defendants of Carmona, they
were no longer adversaries but were simply witnesses because they
had entered pleas of guilty. The DRB concluded that as
witnesses, they could be freely contacted by respondent. This
conclusion is erroneous as a matter of law.
sentence recommendation conditioned on testifying against a co-defendant such as Carmona, the testifying co-defendant is an
adversary of the co-defendant who has elected to stand trial.
Although Campbell, Nieves and Carmona remained co-defendants in
the caption on the indictment, when Campbell and Nieves agreed to
testify against Carmona, they became adversaries of Carmona.
Thus, on March 20, their status was much more significant than
that of mere witnesses; they were adverse-party witnesses.
Accordingly, it has been clearly and convincingly established
that respondent violated RPC 4.2.
against Carmona, respondent could not reasonably have believed
that advising Campbell and Nieves to take the Fifth Amendment or
not to testify truthfully would benefit them. Significantly,
Campbell and Nieves were not sentenced on March 20, because the
prosecutor wanted their favorable testimony as a precondition to
requesting lenient sentences. If Campbell and Nieves testified
inconsistently with their statements to the prosecutor, then the
prosecutor would have been free not to make a lenient
recommendation at sentencing. In the plea bargaining process, it
would be difficult to conceive of a strategy more adverse to a
defendant's or co-defendant's interest than to leave a court free
to impose a sentence without a recommendation of leniency.
Consequently, we find that a violation of RPC 3.4(f) has been
established by clear and convincing evidence.
Having found respondent guilty of unethical conduct, we
must now determine what discipline to impose. Our statements in
prior cases inform our present decision:
acknowledgment of the ethical
infractions which must be sanctioned in
a manner commensurate with the
seriousness of the transgressions. The
purpose of discipline, however, is not
to punish the attorney, but to protect
the public from the attorney who does
not meet the standards of
responsibility required of every member
of the profession. In re Templeton,
99 N.J. 365, 374 (1985). The quantum of
discipline must accord with the
seriousness of the misconduct in light
of all relevant circumstances. In re
Nigohosian,
88 N.J. 308, 315 (1982).
Mitigating factors are, therefore,
relevant and may be considered. In re
Hughes,
90 N.J. 32, 36 (1982).
[In re Kasdan,
115 N.J. 472, 489 (1989).]
Respondent's unethical behavior was unquestionably serious. In
attempting to protect his client's interest, he crossed over the
line from vigorous defense advocacy and came perilously close to
bringing about a perversion of justice.
In this context, we sense from the record that respondent
regrets the conduct. Respondent's conduct was an isolated
incident on an otherwise unblemished professional record. He has
also performed pro bono legal services in the past. We are,
therefore, satisfied under the circumstances to reprimand
respondent for his ethical failing. But for the fact that this
is our first interpretation and application of RPC 4.2,
respondent's discipline would be greater than the public
reprimand recommended by the Office of Attorney Ethics and now
imposed by the Court. "We caution members of the bar, however,
that the Court in the future will ordinarily suspend an attorney"
for the type of violation of RPC 4.2 that occurred in this case.
In re Magid,
139 N.J 449, 455 (1995); In re Principato,
139 N.J. 456, 463 (1995).
Chief Justice Wilentz and Justices Handler, Pollock,
O'Hern, Garibaldi, Stein, and Coleman join in this opinion.
IN THE MATTER OF :
WITNESS, the Honorable Robert N. Wilentz, Chief Justice,
at Trenton, this 1st day of December, 1995.
CLERK OF THE SUPREME COURT
NO. D-13 SEPTEMBER TERM 1995
Decided December 1, 1995
Reprimand CHIEF JUSTICE WILENTZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X
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