The opinion of the court was delivered by: Wagner, Senior Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 264-00).
Before: FARRELL and REID, Associates Judges,and WAGNER, Senior Judge.*fn1
Respondent, Charles E. Meaden, a member of the Bars of New Jersey, Minnesota and the District of Columbia, was suspended from the practice of law by the Supreme Court of New Jersey (New Jersey Court) for a period of three years, with a fitness requirement for reinstatement, for violations of the New Jersey Rules of Professional Conduct (NJRPC) 8.4 (b) (committing a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer) and 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).*fn2
After being notified, this court referred the matter to the Board on Professional Responsibility (Board) for its recommendation whether identical, greater, or lesser discipline should be imposed as reciprocal discipline.*fn3 Thereafter, Bar Counsel reported that it had been brought to her attention that the New Jersey Court had reprimanded respondent for improper client solicitation in an earlier proceeding. This court referred that matter to the Board for consideration with the other New Jersey suspension case. The Board recommended that a three-year suspension with a fitness requirement be imposed as identical reciprocal discipline. Respondent filed an exception to the Board's report.
The factual background for respondent's suspension in New Jersey is set forth in a report to the New Jersey Court filed by its Disciplinary Review Board (NJDRB).*fn4 We summarize the facts briefly. Respondent was charged originally by the New Jersey Office of Attorney Ethics (NJOAE) with committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in violation of NJRPC 8.4 (b), engaging in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of NJRPC 8.4 (c), and failing to inform the NJOAE of the criminal charges against him as required by N.J. Ct. R. 1:20-13 (a)(1). As a result of disclosures that respondent made at a hearing before the DEC, the NJOAE filed a second complaint charging him with lying on seven applications to purchase handguns in violation of NJRPC 8.4 (c). The facts supporting the charges, which are outlined herein, were not disputed in the New Jersey proceedings.
A. Violations of NJRPC 8.4 (b) & (c) & N.J. Ct. R. 1:20-13(a)(1)
Respondent obtained the credit card information of Laurence Rickels. Identifying himself as Gordon Grice, respondent used Rickels' credit information to order by telephone two sets of golf clubs and two golf bags which he requested besent to a hotel in New Jersey.*fn5
The salesperson contacted Rickels who denied having authorized the purchase. The salesperson then alerted the hotel in New Jersey that it might receive merchandise that had been obtained fraudulently. The desk manager notified the local police, and the police set up a "sting" operation by arranging for the delivery of the golf equipment to the hotel. On the scheduled delivery date, a police detective arrested respondent as he was leaving the hotel with the packages and placed him under arrest. At the time of respondent's arrest, the police found in his possession business cards in the name of "Rickles, Grice & Nappa, LLC, Media Advisors, Gordon D. Grice, Vice President."*fn6 Based on these circumstances, respondent was indicted for criminal attempt, in violation of N.J. STAT ANN. § 2C:5-1,*fn7 and receiving stolen property, in violation of N.J. STAT. ANN. § 2C:20-7.*fn8
Respondent was accepted into a pretrial intervention program. He did not inform the NJOAE of the criminal charges as required by N.J. Ct. R. 1:20-13(a)(1) (requiring an attorney charged with an indictable offense to promptly inform the Director of the Office of Attorney Ethics in writing of the charge, and thereafter, the disposition). Respondent contended at the hearing that he had been instructed by counsel not to discuss the charges with anyone.
Respondent admitted in the disciplinary proceeding the attempted theft, although he could not recall many of the details. He acknowledged a strong interest in golf, but he could not explain why he tried to buy the golf clubs when he already owned three sets and had not played for some time. Similarly, respondent had no explanation for, and claimed no knowledge of his possession of the mail, credit card statements, catalog and a motor vehicle registration belonging to others found on him when he was arrested. Based on the foregoing, the DEC found that respondent violated NJRPC 8.4 (b) and ( c ) as charged in the complaint.
B. Second NJRPC 8.4 (c) Violation
At a hearing before the DEC, respondent testified that when he applied for a firearms purchaser identification card, he failed to disclose on the application that he had a psychiatric history. The application inquired: (1) whether the applicant had ever been confined to a mental institution or hospital for treatment or observation of a mental or psychiatric condition; and (2) whether the applicant had ever been "attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an in-patient or out-patient basis for any mental or psychiatric condition." Although respondent had been institutionalized involuntarily in 1980 and treated for depression by psychiatrists since at least 1973, he did not disclose the information in response to these questions. Further, on seven separate applications for permits to purchase handguns, he answered the same questions in the same manner. Respondent claimed that his psychiatrists had told him that he could properly answer the questions in the negative. The DEC rejected respondent's explanation and found that respondent lied on the applications, thus violating NJRPC 8.4 (c).
In mitigation, respondent presented evidence that he suffered from bipolar disorder. He offered a history of the psychiatrists who had treated him. He presented as an expert witness, Dr. Robert L. Goldstein, a psychiatrist, who confirmed the bipolar diagnosis, with periods of "hypomania or mania," characterized by grandiose feelings, reckless stock market speculation leading to substantial financial losses, increased sociability, impulsive shopping sprees, sleeplessness, unbounded energy and unrealistic optimism about himself and his abilities. Dr. Goldstein opined that when respondent was taken off the drug Zoloft by his treating physician, the absence of the drug precipitated a manic episode in April 1996. The expert testified that, during the trip to California, respondent displayed classic symptoms of the onset of a manic episode. He further testified that antisocial behavior often accompanies manic episodes. Dr. Goldstein testified that although respondent knew what he was doing when he committed the attempted theft, he could not control his behavior because of his "manicky condition." He added, however, that respondent was not insane under the McNaughten test because he knew that he was trying to acquire the golf clubs using someone else's credit card and he knew that it was wrong to do so.
At the request of the NJOAE, respondent was examined by another psychiatrist, Dr. Daniel P. Greenfield. While Dr. Greenfield agreed with the bipolar disorder diagnosis, he disagreed with respondent's expert's conclusion that respondent was "out of control," and therefore, not responsible for his actions. He noted that there was no indication in the treatment notes that respondent exhibited symptoms of uncontrolled mania on his last office visit before the attempted theft. Dr. Greenfield testified that, although respondent was in a vulnerable state because his treating doctor had discontinued his prescription for Zoloft and had not yet prescribed Lithium, respondent knew what he was doing when he attempted to obtain the golf equipment by using someone else's credit card and that he understood it was wrong for him to do so.
Based on the evidence, the DEC found that respondent's conduct was knowing, volitional, purposeful and that there had been no break from reality or loss of competency, comprehension or will. Therefore, it concluded that the respondent had not met the standard required for proof of mitigation under In re Jacob, 469 A.2d 498, 501 (N.J. 1984) (stating that an attorney must present "competent medical proofs that [he or she] suffered a loss of competency, ...