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In re Avis

Decided: March 3, 1952.

IN THE MATTER OF JAMES B. AVIS, AN ATTORNEY AND COUNSELLOR AT LAW


To suspend for three months and until further order -- Justices Heher, Oliphant, Wachenfeld and Burling. To disbar -- Chief Justice Vanderbilt. Vanderbilt, C.J. (dissenting).

Respondent suspended for three months and until further order.

VANDERBILT, C.J. (dissenting).

The respondent does not appear before the court as a first offender. The gravamen of the complaint against him now is that he has wrongfully appropriated to his own use moneys received by him as the attorney of a client and that only after a complaint made by the client to this court did he make restitution. The proofs establish that the misappropriation took place on October 24, 1950, six months after he had been privately reprimanded by this court for a similar breach of the Canons of Professional Ethics. On the former occasion he was involved in a dispute with a client over a fee paid for services to be rendered. He finally agreed with his client to refund a substantial portion of the fee, giving his check in payment thereof. The check was drawn on an account in which there were not sufficient funds and on presentation it was dishonored. The client in that transaction, as in the one now before us, did not recover his money until a complaint was made to this court. At the conclusion of the reprimand Mr. Avis volunteered this:

"May I say a few words? I realize, gentlemen, I made a very, very serious mistake. I assure you that I appreciate from the bottom of my heart the action you have taken, and wish to assure you you will have no further difficulty with me. I thank you very much. May I retire?"

The warning given by the court went unheeded. Mr. Avis' solemn assurance to the court was quickly forgotten and he

has again brought disrepute upon the profession as a result of which he again stands before the court on charges.

The facts are undisputed. On September 28, 1949, a school bus owned and operated by the Board of Education of East Greenwich Township was involved in a collision with an automobile owned and operated by George Clevenger, with the result that several children riding on the bus were injured. The respondent who represented the insurance company covering the board of education against liability was also retained by the board of education to bring an action on its behalf against Clevenger to recover for damages to the bus. Clevenger counterclaimed and brought a separate action against the bus driver, and Avis also appeared on his behalf. The matters were settled before trial and mutual covenants not to sue were executed on October 16 and 17, 1950, and Clevenger's attorney mailed Avis his check in the sum of $575 in payment of the settlement and made payable to "James B. Avis, attorney for the Board of Education of East Greenwich Township." By the agreement between Avis and the board of education, Avis was to retain $75 in payment of his fee and the balance of $500 was to be turned over to the board. Avis endorsed the check and deposited it in a checking account in his name as attorney on October 24, 1950. The bank statement of his account showed that on the same day the net balance in the account was reduced below $500 (the sum to which the board was entitled) and thereafter never reached or exceeded that figure until April 9, 1951, when the board was actually paid. Indeed, on October 27th, three days after the deposit in question, the account was overdrawn and remained overdrawn for a period of some 17 days.

On December 19, 1950, the district clerk of the board of education wrote to Avis complaining that the settlement had not been received and inquiring as to the status of the matter. This and similar letters dated January 11, 1951, February 21, 1951, and February 24, 1951, were all ignored by Avis and went unanswered. On March 26, 1951, the

district clerk wrote a letter of complaint to the court, pointing out that Avis had never delivered the funds owing and had also failed to turn over the covenants not to sue. The complaint was referred to the Ethics and Grievance Committee for Gloucester County on April 3, 1951, and on April 6, 1951, Avis delivered his check to the board of education, almost six months after he had misappropriated the funds.

It should be noted that the record discloses that Avis failed to cooperate in the hearings before the Ethics and Grievance Committee. Indeed, despite the requirements of Rule 1:9-4(c), the repeated requests of the secretary of the committee in writing and by telephone and his own promises to comply, he failed to file an answer within the ten-day period required by the Rules. It was only after the secretary brought the matter to the attention of the court and Avis was directed to file an answer that he complied.

The defenses presented by Avis not only fail to meet the charges made against him but again demonstrate his lack of those attributes of character so essential in any man who is to be recognized by society as meriting that special trust and confidence which must be the cornerstone of the relationship between attorney and client. Avis testified he failed to turn over the money promptly because the insurance company did not wish him to prejudice their chances of effecting favorable settlements in claims for damages made against the bus driver on behalf of the children injured in the collision. The only representative of the insurance company to testify denied having made any such request. In any event, how could the settlement made by Clevenger with the board have prejudiced the company's defense to the claims of the children? The board was receiving a substantial settlement predicated in law on Clevenger's negligence and on the absence of contributory negligence in the ...


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