dissenting.
I dissent from the judgment of disbarment in this case primarily for the reasons I stated in In re Conway, 107 N.J. 168 (1987), also decided today. Here, as there, I find an important factor in my judgment to be the uneven application of our precedent in similar disciplinary cases.
But here we do more than depart from precedent. We disbar an attorney exonerated by a jury of any criminal involvement in the corrupt scheme detailed in Conway, supra, 107 N.J. 168. I recognize that a criminal acquittal does not of itself preclude the imposition of an ethical sanction when the totality of the circumstances plainly manifests an unethical, although not *212criminal, violation. In re Pennica, 36 N.J. 401 (1962). But when the central issue of ethical failure is so closely intertwined with the jury’s finding of innocence on a single, crucial factual issue, respect for the meaning of trial by jury compels me not to impeach the jury’s verdict.
For here, as in Conway, the dominating event is the meeting of August 19, 1981, requested by Sergeant Lazaro, at the direction of his superiors in the State Police, to solicit involvement of the lawyers in advancement of the bribery scheme that had been unearthed. At the secretly taped meeting, Sergeant Lazaro, a childhood friend of respondent Rigolosi, feigned to present McDowell’s proposed testimony. The jury must have believed that Rigolosi, although knowing McDowell was changing his story, did not know that McDowell had been bribed to change his story and that discussion of McDowell’s story was not aiding and effectuating the act of bribery.
On the other hand, it is obvious and incontestable, as the Special Master and the Disciplinary Review Board (DRB) found, that respondent knew that grave ethical questions surrounded the use of such testimony. We have disciplined attorneys even for suggesting that the processes of justice are for sale. In re Milita, 99 N.J. 336 (1985). We expect lawyers to adhere to conduct that does not permit even inferences of dishonesty. Respondent had to know that his involvement in this episode, however motivated, could not help but be seen as casting doubt upon the integrity of the criminal judicial process.
Hence, discipline is in order — but what discipline? Even respondent’s most troubling statement to Lazaro on the way home after the August 19th dinner — “was that handled clean enough, that ah, you know?” — evokes the ethical ambiguity that our cases have sought to dispel. Does that ambiguity demonstrate the total failure of character that is the premise for disbarment in the absence of conviction of serious crime? It is not possible to read the transcript of these proceedings or of the trial without some sense of doubt in reaching the conclusion that respondent must be disbarred. There is no *213unerring evidence that demonstrates that defendant has an utterly “unsalvageable professional character,” or is “beyond the pale of professional rehabilitation.” In re Templeton, 99 N.J. 365, 376, 377 (1985).
So uncertain were the State Police investigators of the meaning of the August 19, 1981, meeting and conversations that they believed it was necessary to gain further evidence to demonstrate criminal involvement. On this aspect of the case, the DRB agreed “with the finding of the Special Ethics Master that the proofs were insufficient to show that respondent knew of, assisted or encouraged in advance either the change by McDowell of his initial report or the bribery of McDowell.” It was not until Lazaro spoke to Rigolosi on the way home after the August 19th meeting that respondent had to know that a corrupt plan was unfolding. Hence the State Police continued to call respondent to try to enmesh him further in the disposition of the case. It is quite clear that during the September 2, 1981, solicitation respondent refused to speak to Sergeant Lazaro until Conway came upstairs. By this time the lawyers were obviously suspicious of the conduct of Sergeant Lazaro.
The Chairman of the DRB questioned whether the conversation showed anything other than respondent “trying to distance himself and unload Luzzaro [sic].” What exactly did that conversation prove? Did the respondent, knowing of the evil intentions of Lazaro, fail to act in accordance with law or ethical duty? The jury acquitted respondent of failure to act in accordance with law. But the Special Master found, and the DRB concurred, that respondent “joined and participated in the scheme, although it may have originally been contrived by others.” This finding is plainly inconsistent with the jury verdict. As noted, since all panels agree that Rigolosi had no prior knowledge of the bribe, the crucial question is — what did respondent do after the night of August 19, 1981?
The predicate for the DRB’s conclusion was this:
"[A]ttorneys are ‘officers of the court' with a special responsibility to protect the administration of justice * * Cf. In re Hinds, 90 N.J. 604, 615 (1982). *214Thus, “as judicial officers, lawyers differ from ordinary citizens.” Id. at 616. When respondent learned that there was a criminal scheme afoot to thwart the administration of justice, he was required to do more than he did. His claimed disassociation from the planned criminal act was totally inadequate. At the very least, respondent should have unequivocably informed Lazaro that he wanted no part of his activity. He also should have stated that he was duty bound to report the conversation to law enforcement authorities. See N.J.S.A. 2C:5-ld and 2C:5-[2]f(3).1
If that is the finding, what is the appropriate degree of discipline that we should impose upon an attorney who does not take affirmative steps to prevent the imposition of a fraud upon a tribunal. To my knowledge this is the first time that we have undertaken to measure the meaning of the duty imposed upon a non-party lawyer. Cf. In re Yaccarino, 101 N.J. 342 (1985) (client's disclosure of his plan to destroy evidence to other attorneys permits client’s attorney to reveal evidence of criminal plan to proper authority). Rule of Professional Conduct 1.6(b)(2) requires an attorney to reveal information necessary to prevent his or her client from committing “a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.” Even in that direct context attorneys are told to be watchful that they not adopt “the role of judge or jury to determine the facts,” United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3rd Cir.1977), lest the client be deprived of independent advocacy. Nix v. Whiteside, 475 U.S. 157,-, 106 S.Ct. 988, 1006, 89 L.Ed.2d 123, 149 (1986) (Brennan, J., concurring). The Rule poses a challenge for attorneys:
*215Lawyers, one would think, would be among the last to make a virtue of informing. At the center of their professional code of conduct is a special obligation of confidentiality that is honored even at the cost of serious suffering and injustice. Although this strong obligation applies only within the limited area of ‘confidences’ and ‘secrets,’ the heroes of the legal profession tend to be those who keep secrets faithfully rather than those who blow the whistle on wrongdoers. [Lynch, “The Lawyer as Informer,” 1986 Duke L.J. 491, - (1986) (citations omitted).]
In some cases the fraud is transparent, making the choice clear; in others it may not be so. It is easy for us to conclude that respondent should have turned everyone in now that we know that McDowell was bribed. How then should we approach the issue of discipline under this Rule?
So uncertain is our precedent that the DRB was divided in its judgment of the appropriate discipline. Three members of the Board recommended two years of suspension. But the report also stated:
Conversely, three members of the Board find that there are substantial factors in mitigation of respondent’s conduct which temper the need for suspension. This is the first disciplinary proceeding against respondent, a member of the bar for 27 years. The misconduct consisted of a single incident fostered by a misguided attempt to mediate possible cross complaints and adverse civil consequences to a long time friend and client. There was no pecuniary gain to respondent. [In re] DiBiasi, [102 N.J. 152, 156 (1986)]. Respondent’s reputation in the legal and civic community and his years of service to the community and his profession cannot be ignored. Matter of Weinroth, [100 N.J. 343, 351 (1985)]; In re Infinito, [94 N.J. 50, 57-58 (1983)]; In re Sears, 71 N.J. 175, 199 (1976). The many letters submitted on respondent’s behalf evidence his character and the esteem in which members of the profession and community hold him and of their continued faith in him. Assessing these many factors, it is unlikely “that he will engage in similar activities in the future.” In re Sears, supra, at 200. Matter of Templeton, 99 N.J. 365, 374 (1985); In re Goldstaub, 90 N.J. 1, 5 (1982).
Suspension is not necessary to deter similar conduct by this respondent, nor can it be justified as a deterrent to others. Consequently, three members of the Board recommend that the Court impose a public reprimand.
Hence, I am even more troubled by the inconsistency of our precedent than in Conway. How strange it must seem that our most respected board of attorney discipline should fall so far from the Court’s mark. This respondent has been found innocent of crime. In the span of cases that preceded the Verdira-*216too decision,2 in In re Infinito, 94 N.J. 50 (1983), an attorney convicted of misusing another’s property was given a three-year suspension; in In re Rosen, 88 N.J. 1 (1981), an attorney convicted of attempted subornation of perjury was suspended for three years; and in In re Mirabelli, 79 N.J. 597 (1979), an attorney who pled guilty to a charge of bribery was given a three-year suspension. I point out this precedent not because it commends itself to being followed, but because of the inconsistency it displays.
As I explained in Conway, I have arrived at this judgment by a different route from that of the other members of the Court. But even if I approached this question as does the majority, I would assign a pre-eminent value to the meaning of trial by jury. In cases like this, when the State has candidly acknowledged its use of State officials to engage others in the commission of crime (and I imply no criticism of that regrettably necessary means of law enforcement), it may be better to err on the side of the jury on the crucial question of whether respondent joined in the corrupt scheme.
There is no pristine truth in this case. There are no heroes: not the moonlighting State Police officer; not the veteran State Police sergeant who passed the bribe on to the young State trooper, not the bribers, and regrettably not respondents Conway or Rigolosi who knew that McDowell was changing his story. There is blame enough for all concerned. Although innocent of the plan to bribe, both attorneys could not help but know that with the admitted overtones of organized criminal activity (Conway’s client, Lombardo, injected this issue into the case by threatening McDowell with reprisals), the last thing that could be tolerated was any suggestion of acquiescence in wrongdoing or favoritism. Lawyers know the only way to deal *217with such matters. See In re Friedland, 59 N.J. 209 (1971). Hence I regard the ethical infraction as grave, and therefore view it as warranting a three-year suspension.
For disbarment — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK and GARIBALDI — 4.
Dissenting — Justice O’HERN — 1.
ORDER
It is ORDERED that VINCENT P. RIGOLOSI of HACKEN-SACK, who was admitted to the bar of this State in 1959, be disbarred and that his name be stricken from the roll of attorneys of this State, effective July 1, 1987; and it is further
ORDERED that VINCENT P. RIGOLOSI be and hereby is permanently restrained and enjoined from practicing law; and it is further
ORDERED that respondent comply with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with disbarred attorneys; and it is further
ORDERED that respondent reimburse the Ethics Financial Committee for appropriate administrative costs.
I am not too sure of the relevance of the DRB's reference to this provision. The law has always carefully circumscribed criminal culpability for inchoate crimes. N.J.S.A. 2C:5-ld provides a defense for one who has previously participated in and subsequently renounced a criminal attempt, not a duty; 2C:5-2f(3) is to the same effect for one who has participated in criminal conspiracy. The finding here is that defendant had not previously participated in a criminal conspiracy. More to the point is N.J.S.A. 2C:29-1 (obstructing administration of law or other governmental function), although that section does not apply to “failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions." (Emphasis added).
In In re Verdiramo, 96 N.J. 183 (1984), I concluded that the Court had adopted a clear precedent, applicable to cases occurring after that date, that conviction of serious crimes, particularly those involving dishonesty, would almost invariably warrantment disbarment. However, the Rigolosi incident occurred before the decision in Verdiramo.