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Trial attorneys must always juggle dual roles as advocates for their clients and officers of the court, but a Trenton, N.J., lawyer who strayed on the side of advocacy is facing ethics charges of lack of candor to the tribunal. On Feb. 25, 1998, Jack Seelig appeared before Ewing Township Municipal Judge William Lake to plead his client to charges of reckless driving, failing to report an accident and leaving the scene of an accident that results in injury or death. Judge Lake neither spoke to the defendant nor elicited a factual basis for his pleas. Referring to the leaving-the-scene statute’s separate provisions for injury or death, subpart (a), and property damage, subpart (b), Lake asked, “Injuries or property damage?” Seelig’s response: “Injuries.” What Seelig wasn’t asked, and didn’t tell, was the full story of the accident and its aftermath. His client, Jeffrey Poje, hit another car on Pennington Road in Ewing Township shortly after 2 a.m. on Jan. 1, 1998. One of the other car’s occupants died at the scene and another would later die of her injuries. Poje fled the scene on foot but surrendered to police that afternoon. He was charged with aggravated manslaughter and death by auto and was detained. Poje had not made bail and was still in prison garb when he appeared before Lake. Still, Lake accepted the pleas without an allocution. Poje received no jail time (out of a possible 240 days), was fined $630 of a possible $1,300 and suffered no loss of driving privileges despite the mandatory one-year suspension imposed by N.J.S.A. 39:4-129(a) for leaving the scene of an accident that results in injury or death. He might have gotten stiffer treatment had Lake had access to his driving record. Papers later filed by the county prosecutor refer to three reckless driving convictions, two for careless driving, five for speeding, one DWI, one for leaving the scene and one for consuming alcoholic beverages in a motor vehicle. There were also several instances of driving with a suspended license. But more serious than the light punishment was the fact that Seelig’s entry of the guilty pleas created a double jeopardy bar to prosecuting the indictable offenses. In State v. Dively, 92 N.J. 573 (1983), the state supreme court held that a defendant who pleads guilty to motor vehicle offenses in municipal court can’t be tried for vehicular homicide for the same incident. William Zarling, deputy first assistant Mercer County prosecutor, who was not present in municipal court the day of the pleas, learned of the fiasco the next day, when Lake gave him a call. Zarling moved to vacate the guilty pleas. Lake recused himself. Trenton Municipal Judge Kevin McGrory, the presiding municipal judge for Mercer County, granted the motion on April 22, 1998, citing R.7:6-2(b), which allows withdrawal of a plea after sentencing “to correct a manifest injustice.” McGrory found that Lake’s failure to ensure that the pleas were being entered voluntarily and with an understanding of the nature of the charges and the consequences of the plea was “a violation reaching constitutional dimensions.” Poje appealed and Mercer County Superior Court Judge Alan Pogarsky affirmed on Oct. 23, 1998, rejecting as “without merit” Poje’s argument that the state had singled him out for selective enforcement from all the others who entered similarly defective pleas before Lake the same day. Poje was indicted and his case, State v. Poje, 98-0001, was assigned to Mercer County Superior Court Judge Charles Delehey. It was Delehey who filed the grievance against Seelig in February 1999. The formal ethics complaint, issued Sept. 20 in In the Matter of Seelig, No. IIIB-00-003E, charges Seelig with violating five RPCs: 1.6(b)(2) (failing to reveal information necessary to prevent a client from perpetrating a fraud on the tribunal); 3.3(a)(1) (making a false statement to a tribunal with knowledge that the tribunal might be misled); 3.3(a)(5) (failing to disclose a fact with knowledge the tribunal may be misled); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The District III-B Ethics Committee in Burlington County held its first hearing on Nov. 30. At the hearing, Seelig testified that he was aware of the double jeopardy implications but that he believed he had an absolute duty to represent his client fully within the letter of the law and had no obligation to disclose his strategy to plead guilty in municipal court unless asked, according to the presenting attorney, Thomas Scattergood, a partner with Mount Laurel, N.J.’s Scattergood & Hendershot. Seelig refers inquiries to his attorney, Michael Riley, who says: “Jack was responding to a direct question, and he gave a direct answer” to the judge. The disciplinary action represents an attempt “to superimpose upon Seelig responsibilities that really should be left in other places,” says Riley, a partner in Mount Holly, N.J.’s Sitzler & Riley. He points out that Lake was the same judge who arraigned Lake for one of the deaths on Jan. 1, 1998, and that Lake should have been on notice of potential criminal prosecution in any event because all three tickets indicate on their face that injury was involved. McGrory’s opinion comes down hardest on Lake. He says the judge had a “constitutional obligation to, sua sponte, undertake the questioning process of the defendant mandated by our Rules and our constitutional law.” But, according to McGrory, that does not let Seelig off the hook. Although he stops short of finding “any intended or negligent ethical transgression,” McGrory concludes that “it was less than candid on defense counsel’s part not to apprise the court of the significant and highly relevant sentencing circumstances, circumstances admittedly adverse to him but significant circumstances nonetheless and circumstances necessary for the court to make an informed sentencing decision at the very least” on the motor vehicle violations. The only other witness at the Nov. 30 hearing was James Mahon, who was the acting municipal prosecutor on the night of the plea and whom Scattergood terms “a very reluctant witness.” Mahon testified that Seelig told him he had a client coming from the jail and that, when he asked Seelig if he was needed in the courtroom, Seelig said no. Mahon also testified that, had he known about the indictable offenses, he would have appeared for the plea. McGrory’s opinion says Mahon’s absence created, in effect, an ex parte proceeding “as clearly the prosecutor had no notice of defense counsel’s intentions” and that this in turn imposed a heightened duty on Seelig. He notes that RPC 3.3(d) requires a lawyer in an ex parte proceeding to “inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision whether or not those facts are adverse.” Seelig was not charged under 3.3(d). Ethics professor John Leubsdorf sees what transpired between Seelig and Mahon as highly significant. “If the original dealing between the lawyers was dishonest, there is a violation in failing to disclose to the judge,” opines Leubsdorf, who teaches at Rutgers Law School-Newark. “If the dealings with the prosecutor were OK,” he continues, “it becomes a much closer case.” Leubsdorf also comments that generally, “it is strange to think you can put on the defense the job of briefing the court.” Michael Ambrosio, an ethics professor at Seton Hall University School of Law, echoes that view. “The judge possibly unfairly relied on defense counsel for information at his disposal” and “defense counsel have to be circumspect about acting as officials of the government.” Ambrosio calls the matter “a cutting-edge case” that highlights the uniquely strict standard of disclosure imposed on New Jersey attorneys by RPC 3.3(a)(5). The rule, “taken literally, does seem to modify the attorney’s duty to his client in favor of the pursuit of truth and the truth-seeking function of the court.” “The rule has yet to be applied to require a lawyer to disclose adverse facts going to the merits of the case,” says Ambrosio. “And from the point of view of a criminal defense lawyer, there is even more leeway in protecting the client against disclosure of adverse facts.” Even Scattergood, the attorney presenting the ethics case, says attorneys he has spoken with are “evenly split on whether they think Seelig was wrong.” The hearing is scheduled to resume on Dec. 20. Riley says he plans to call character witnesses, including retired Mercer County Superior Court Judge Judith Yaskin, as well as lawyers knowledgeable about municipal court procedures generally and those in Ewing Township.

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