CONCURRENCE
I concur with the findings, conclusions and recommendations of the Board concerning this respondent’s conduct under the particular facts and procedural posture of this case. The independent examination and evaluation of the entire record required of the Board is limited to the facts underlying respondent’s convictions. It cannot and does not include consideration of unproven allegations. In re Gross, 67 N.J. 419, 424 (1975); R. 1:20-6(b)(2)(ii). Absent the criminal convictions and the totality of the circumstances surrounding respondent’s behavior, I would have recommended a public reprimand.
/s/Waldron Kraemer Waldron Kraemer, Esq.
Date: March 7, 1987
CONCURRENCE
I reluctantly concur with the findings, conclusions and recommendations of the Board. This matter comes before the Board pursuant to R. l:20-6(b) as a Motion for Final Discipline Based Upon Criminal Conviction. The rule mandates that in such applications the sole issue to be determined shall be the extent of final discipline to be imposed.
Pursuant to R. l:20-6(b)(2), the Director of the Office of Attorney Ethics is accorded exclusive jurisdiction to investigate and prosecute all matters where an attorney is a defendant in a *11criminal proceeding. Subpart (i) of this rule specifies that at the conclusion of all criminal matters resulting in conviction, “... the Director may file directly with the Board and serve upon the respondent or counsel ... a Motion for Final Discipline Based Upon a Criminal Conviction.” (emphasis added). Discretion is accorded to the Director in this regard. What this rule imports is that the Director need not proceed in this fashion but might, should he so elect, alternatively proceed by filing an ethics complaint in the ordinary course.
During the hearing in this matter before this Board, counsel for the Office of Attorney Ethics responded that it would be in the Board’s discretion to direct further hearing or investigation,1 but that in this particular matter substantial reasons existed why pursuing such a course was not practical (Disciplinary Review Board Hearing, July 16, 1986, p. 5). In large measure, reliance was placed upon the decision made by the County Prosecutor’s office in accepting the plea agreement (Disciplinary Review Board Hearing, July 16, 1986, p. 25-6).
The underlying facts of this case present very serious allegations. The respondent pled to but three of many counts alleged. I concur with the Board and with Board Member Kraemer’s concurrence that the Board may not act on and consider unproven allegations. My willingness to concur with the Board’s opinion is based upon my understanding of what is now properly before the Board, as well as upon the understandable and proper decision of the Office of Attorney Ethics in exercising its discretion not to pursue the other serious allegations encompassed in the remaining counts of indictment.
Nonetheless, I find it appropriate to here underscore the discretionary nature of the Director’s decision whether, following a criminal conviction, a motion of this sort should be brought. The exigencies and practicalities of criminal practice *12do not always directly parallel the strictures of the Rules of Professional Conduct. Indeed, even an acquittal in a criminal proceeding against an attorney is not res judicata and does not preclude a subsequent disciplinary proceeding based on the same charge or conduct. In re Callahan, 70 N.J. 178, 184 (1976); In re Hyett, 61 N.J. 518, 521 (1972); In re Friedland, 59 N.J. 209 (1971); In re Pennica, 36 N.J. 401, 418 (1962).
Clearly, the prosecutor’s decision in the criminal context to dismiss certain counts of an indictment in favor of a plea should not always mandate a like decision by the Office of Attorney Ethics. That Office and its Director should view each case as an individual entity and base its decision upon the facts and circumstances of each individual case.
/s/Lee M. Hymerling Lee M. Hymerling, Esq.
Date: March 6, 1987
Rule 1:20—6(b)(2)(ii) would appear, however, to limit this Board’s power to remand to remands dealing solely with mitigation.