¶1concurring and dissenting.
¶2The majority fairly sets forth the facts of this case in a comprehensive opinion. I concur with the determination that respondent’s conduct violates R.P.C. 8.4(b). I also agree that a penalty must be imposed upon respondent. I respectfully dissent, however, with regard to the quantum of that penalty. A reprimand and a probationary sanction including additional community service would satisfy the need to protect the public interest while serving the administration of justice.
¶3*310The following factors are relevant to the analysis: the decision of the Disciplinary Review Board (DRB or Board) to impose a reprimand; the determination of the Office of Attorney Ethics (OAE) not to appeal the DRB decision; the lack of knowledge on the part of respondent that his conduct was criminal; the context in which this dispute arose; the DRB dissent; the substantial mitigation; and the fairness of prospectivity. I review those circumstances seriatim.
¶4The DRB
¶5Our review is de novo on the record. R. 1:20-16(c). Nonetheless, it is appropriate in these circumstances to give due deference to the determination of the DRB. The DRB has achieved substantial expertise and experience in attorney disciplinary matters. Just as lower courts enjoy the “feel of the case” in assessing whether a miscarriage of justice occurred, Carrino v. Novotny, 78 N.J. 355, 361, 396 A.2d 561 (1979), the DRB has a similar “feel” in ethics cases. In the past, we have shown deference to the DRB’s “firsthand opportunity ... to assess-respondent’s demeanor and attitude.” In re Stern, 92 N.J. 611, 617, 458 A.2d 1279 (1983). The Board is also in the best position to evaluate the totality of the circumstances, including respondent’s character, ethics history, culpability, and remorse, as well as any mitigating and aggravating factors. Far from being timid about penalties, the DRB imposes suspensions when appropriate. In this ease, it decided not to suspend. I would accord appropriate weight to that decision.
¶6The OAE
¶7Deference is also appropriate in this case because the OAE declined to appeal the DRB recommendation of a reprimand to the Court. As with the DRB, reticence is not the hallmark of the OAE. The OAE pursues ethics violations with diligence, especially those concerning alleged interference with the governing process. Although the OAE urged that a six-month suspension be imposed *311when it was before the DRB and when it appeared before the Court, the OAE chose not to petition for review of the DRB imposition of a reprimand. The OAE’s decision not to appeal suggests that the interests of justice are served by a reprimand. However, as discussed below, I would add additional conditions to that penalty.
¶8Although not dispositive, the views of those two respected ethics agencies, the DRB and OAE, are relevant.
¶9Lack of Knowledge
¶10The DRB found that respondent “did not realize ... that his conduct was criminal.” The OAE agreed, stating in its brief that respondent
did not realize that his conduct was criminal in nature. Although it has often been said that ignorance of the law or disciplinary rules does not diminish responsibility for an ethics violation, it does not seem appropriate to hold respondent to the same standard as an attorney who knowingly committed a federal felony.
¶11Again, the OAE stated that respondent “did not knowingly commit a crime.” The OAE elaborated at the DRB hearing when it said that respondent “didn’t realize he was committing a crime. He thought he was engaging in political lobbying.” (Emphasis added.)
¶12Fundamental fairness requires that we make a decision upon the record as presented. This was a violation of the Hatch Act. That is what was charged, nothing more, nothing less. Judge Rodriguez has duly punished respondent for that infraction. We must determine how that should affect his professional standing. Our ethics jurisprudence and common sense allow us to look at respondent’s state of mind in determining that penalty. Here, the DRB and the ethics prosecutor concluded that respondent did not know he was committing a crime. If it was clear to respondent that his conduct was criminal, I would join the majority. Indeed, I would argue for an even stronger penalty. But respondent believed that his conduct was political, not criminal. Sadly, that is a fine line that is all too often blurred.
¶13*312I do not suggest that the absence of criminal intent exonerates respondent. He is not a naif — he knew what he was doing. Nonetheless, he did believe that he was engaged in legal lobbying. That belief may be irrelevant to law enforcement authorities, but it is germane to an ethics determination. Importantly, the DRB and the OAE credited his belief. That does not exculpate; it does mitigate.
¶14Context
¶15This matter should be measured in the factual crucible in which it occurred. Years ago, and long before the incident in question, respondent, as Mayor of Edison, supported Robert J. Engel’s initial appointment to an at-will County job. Again, long prior to this dispute, respondent also assisted Engel’s unsuccessful efforts to convert his employment status from at will to permanent. At the meeting in question, the Engels sought respondent’s assistance in changing the younger Engel’s position to a permanent one. Respondent agreed and, in turn, the Engels agreed to help with the votes.
¶16That background is not determinative and has only marginal value. Yet, as we try to understand what happened and what we should do about it, it is helpful to know that there was a long history of efforts, neither unethical nor unlawful, by respondent to help Engel. Respondent also represents that the Engels initiated the final improper meeting. That representation has gone unchallenged. Neither fact, however, undermines that which is conclusively established by the criminal conviction: respondent’s conduct on this occasion was both unlawful and unethical. It is nonetheless important to note that respondent’s infraction occurred within the above context.
¶17The DRB Dissent
¶18A brief comment is appropriate on the dissent of the DRB member who argued that respondent’s conduct was bribery. I respect that sincerely-held view. The majority of the Court, *313however, takes a better approach by avoiding a discussion of the merits of the bribery issue. And the DRB majority expressed a better view when it stated in its opinion that “it would do ‘violence to the procedures that govern our disciplinary function’ to analogize respondent’s misconduct to a bribery offense.” (Citation omitted). There simply is no verdict or plea to support bribery, and it is presumptuous and unfair to “find” it here. The United States Attorney did not charge bribery; a federal jury did not convict him of bribery; and respondent did not plead guilty to bribery. Similarly, the State did not charge respondent with bribery. We cannot come to a conclusion on the issue without a complete record. In State v. Schenkolewski, 301 N.J.Super. 115, 141, 693 A.2d 1173 (App.Div.), certif. denied, 151 N.J. 77, 697 A.2d 549 (1997), a case involving defendants indicted for bribery who claimed that they only intended to engage in lobbying, the court found that “it would be for the jury to decide with what subjective intent these defendants accepted the money.” So too, I am uncomfortable finding bribery in general or deciding questions of intent in particular without traditional safeguards that attend a criminal proceeding. We should not surmise whether this is bribery or not, as does the DRB dissent. If the United States Attorney and the State of New Jersey did not indict and convict respondent of bribery, neither should we.
¶19The only fact we know for certain is that he was charged with and pled guilty to a violation of the Hatch Act, a “fairly obscure and moribund statute” with its “somewhat arcane criminal code provisions.” Stanley Brand, The Hatch Act: Little Known Statute May Become Important in Evaluating Political Activity by Presidential Aides, 44 Fed. Law. 12 (Mar./Apr.l997). We should base our finding on the indisputable conviction under the Hatch Act. I am not inclined to work backwards, to rummage through the ethics warehouse to find any arguably applicable crime to fit a desired penalty. We should follow the traditional route and find a fair penalty that fits the established violation.
¶21The DRB found:
There are ... compelling mitigating circumstances in this case. During his career, respondent has been actively involved in professional, civic and charitable organizations. His family, friends and clients have attested to his good character and the fact that he has, except for this incident, led an exemplary life. Although restitution was not applicable in respondent’s case, he has agreed to perform community service in excess of that required by the court. Finally, ... respondent has shown genuine remorse for his misconduct ... [and] has enjoyed a previously unblemished thirty-year legal career.
[(Emphasis added.)]
¶22The majority opinion of the Court also recognizes that significant mitigating circumstances inhere in this case. The Office of the United States Attorney acknowledged that respondent “clearly demonstrated a recognition and acceptance of responsibility for his conduct in this matter.” Finally, Judge Rodriguez stated at sentencing: “I am certain that this offense may be unique in your life, [and] I don’t think we will ever see you again in a court of law under these circumstances.” The mitigation is compelling, as the DRB found.
¶23Prospectivity
¶24R.P.C. 8.4(b) states that an attorney cannot commit an act that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” If an attorney does so, he or she must be punished. Respondent cannot argue that that proscription is in any sense new. Punishment is appropriate. Yet, one of the difficulties in this matter is that the facts are somewhat unique. Respondent pled guilty to a violation of the Hatch Act. Both the DRB and OAE agreed, at argument before the DRB, that this case is a matter of first impression, at least insofar as the Hatch Act is concerned. The ease law does not provide guidance on the discipline for the type of “influence” present in this case. It is unfair if we ratchet up the heat on the ethics thermometer for the first time here.
¶25A primary reason behind punishing ethics infractions is to deter other attorneys from engaging in similar conduct. We satisfy the *315interests of deterrence if we announce that hereafter a suspension without conditions will be the general rule for attorneys who engage in such activity. Prospective application is appropriate and fair in the totality of the circumstances of this case. The Bar will be on notice that such activity, however characterized, will be punished in the future. Although a bright-line demarcation has not been present to date, suspension should be the general rule hereafter.
¶26At the time of sentencing, Judge Rodriguez captured the context when he observed that respondent’s conduct occurred
in a world where unfortunately, in the scheme of things, much of the activity that has taken place in this situation, is either condoned or determined to be the proper course of conduct in the way of doing business.
¶27Although Judge Rodriguez did not sanction such activity, and in fact condemned it as serious, as do we, he assists our review because he identified the political milieu in which respondent’s misconduct occurred. Just as he balanced the wrong against the reality in meting out the sentence, we achieve justice if we issue a probationary sanction together with a reprimand, plus additional community service, and a warning to all that suspension without conditions will be the byword for those who continue to conduct “business as usual.”
¶28Penalty
¶29Respondent’s sentence for the Hatch Act violation was three years probation, confinement to his residence for three months, 500 hours of community service, and a $5,000 fine. The majority opinion correctly notes that respondent has already been subject to substantial punishment for his actions. Although I concur with the opinion of the majority that a suspension is in order, I would then, as the Court may do, “suspend the suspension,” issue a reprimand, and impose a probationary sanction with additional stipulated community service, penalties that in the aggregate would satisfy the ethics process.
¶30*316This Court on occasion has imposed a probationary sanction embracing community service. As Justice Handler noted in In re Kotok, 108 N.J. 314, 332, 528 A.2d 1307 (1987), that type of sanction has been viewed approvingly by the American Bar Association and a number of other jurisdictions as an alternative to the traditional disciplinary measures. In New Jersey, such a sanction ordinarily has been reserved for situations in which the ethical infractions are remote in time and the respondent has since demonstrated an exemplary record as a professional. In Re Alum, 162 N.J. 313, 744 A.2d 172 (2000); Matter of Stier, 108 N.J. 455, 530 A.2d 786 (1987); Matter of Kotok, supra,108 N.J. 314, 528 A.2d 1307. Although there was a longer hiatus in those cases between the transgression and discipline, mitigating circumstances here justify invoking that remedy.
¶31Importantly, those cases note that one of the goals of discipline — rehabilitation—would not be advanced by imposing a suspension where rehabilitation already has been realized. Similarly, in this case, I believe that respondent already has been rehabilitated in the sense that he now knows that his conduct, though seemingly “political” to him at the time, was criminal. Both respondent and the Bar are now on notice that a similar Hatch Act violation by an attorney will not be tolerated by this Court. The goals and purposes of discipline, however, are not furthered by imposing a suspension on an attorney for a violation that previously had not been confronted by this Court in the context of a disciplinary proceeding. The penalty of a probationary sanction is a sensible solution that should be used in limited circumstances such as those present here.
¶32Conclusion
¶33The majority makes a principled case for a suspension without conditions. It is a close question. I would give the benefit of the doubt to respondent under the circumstances. I would suspend the suspension as the Court did in Kotok. 108 N.J. at 332, 528 A.2d 1307; see also In re Alum, supra,162 N.J. at 316, 744 A.2d 172 (suspending one-year suspension); In re Schaffer, 140 N.J. *317148, 161, 657 A.2d 871 (1995) (suspending three-month suspension); In re Ichel, 126 N.J. 217, 218, 595 A.2d 515 (1991) (suspending six-month suspension). I then would impose a reprimand together with a probationary sanction embracing 1,000 hours of community service, with appropriate credit for service performed as a result of his federal court sentence. A total of 1,000 hours of community service is the functional equivalent of a six-month suspension. The proposed resolution serves the dual purpose of punishment and deterrence. Such a result does not strain mercy — or justice — beyond reasonable limits.
¶34I therefore dissent with regard to the penalty imposed by the majority.
¶35Justice LONG joins in this opinion.
¶36For suspension — Chief Justice PORITZ and Justices STEIN, COLEMAN and VERNIERO — 4.
¶37Concurring in part, dissenting in part — Justices ZAZZALI and LONG — 2.
¶38ORDER
¶39SAMUEL V. CONVERY, JR., of METUCHEN, who was admitted to the bar of this state in 1969, having been Ordered to Show Cause why he should not be disbarred or otherwise disciplined,
¶40And good cause appearing;
¶41It is ORDERED that SAMUEL V. CONVERY, JR., be suspended for six months and until the further Order of the Court, effective February 23, 2001; and it is further
¶42ORDERED that respondent be restrained and enjoined from practicing law during the period of his suspension and that he comply with Rule 1:20-20, which governs suspended attorneys; and it is further
¶43*318ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter, including the costs of transcripts.