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In re Gavel

Decided: October 4, 1956.

IN THE MATTER OF ERIC J. GAVEL, AN ATTORNEY-AT-LAW


On order to show cause why the respondent should not be disciplined.

For disbarment -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For two years' suspension -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J.

Vanderbilt

Alex Kurpiewski, an illiterate Polish immigrant 66 years of age, filed charges against the respondent Eric J. Gavel, an attorney-at-law of Sayreville, Middlesex County, with the Ethics and Grievance Committee for Middlesex County. The charges were complicated. The committee heard 30 witnesses on seven different days, taking in all over 750 pages of testimony. Its presentment found the respondent guilty of unethical conduct not only in several respects alleged by the complainant but also with respect to acts not alleged in this complaint but disclosed by testimony taken before the committee.

The five-page typewritten brief submitted on behalf of the respondent prior to the oral argument last June and the oral argument itself were so inadequate that at the conclusion of the argument the court expressed from the bench

the need of a detailed brief and argument from the respondent and set the matter down for early argument this fall.

The second brief filed on behalf of the respondent, a typewritten affair of 12 pages, in opposition to the printed brief of the committee covering the situation fully, was no improvement on the first. It is, moreover, replete with admissions of the respondent's unethical conduct:

"* * * it would seem to have been the duty of respondent not only to urge upon Kurpiewski that he be represented by another attorney but, upon Kurpiewski declining to take such advice, respondent should have withdrawn entirely from the matter and should have required his father to obtain other counsel. The situation is aggravated by the failure of respondent to have the agreement between the parties reduced to writing and in specific detail, and this writing, at least, witnessed by an indifferent person. Respondent now admits his fault in this regard and makes respectful submission to this Honorable Court therein."

"Respondent flatly testified:

'I inflated the purchase price. If you are going to dwell on the subject, rather than have you dwell any further, on the subject, there was an inflation of the purchase price in order to obtain initially the granting of a mortgage.' (p. 666-13)

The matter is not otherwise justified or defended."

"* * * respondent would seem to be culpable in these respects, to wit:

(1) In not withdrawing from the matter when Kurpiewski was without other legal representation or independent advice especially in view of the fact that the kin and personal friends of respondent were involved in the transaction;

(2) In failing to have the whole arrangement between the parties reduced to writing; executed in the presence of and witnessed by an indifferent person; and

(3) In his improper handling of trust funds although it does not appear that loss occurred to anyone thereby."

The findings of the committee and of the court, of course, go beyond the concessions of the respondent.

Before the reargument this fall the court had been advised that the complainant and his wife had brought a civil suit against the respondent and his wife in the Chancery Division of the Superior Court for an accounting as his attorney on the same matters mentioned in the presentment here, and

that the respondent had settled the suit for substantially the same amount involved in the proceedings here. The settlement involved a turning over to the complainant of $4,045 in cash and the assignment to him of two mortgages obtained by the respondent and his wife as a result of the sale of properties of the complainant on which there is due an approximate unpaid balance of $4,200. Neither the suit itself nor the settlement was mentioned in either brief of the respondent or at the first argument. When queried concerning it by this court at the opening of the reargument, his counsel said the respondent had first told him of the suit and the settlement that morning and asked leave to withdraw from the case. When this court asked the respondent why he had not disclosed the facts to his counsel or this court, his only reply was that he was tired of hearing about the matter -- a strange attitude indeed to be taken by an officer of the court seeking to maintain his standing at the bar. We gave the respondent the choice of engaging new counsel, arguing the matter himself, or submitting it on the record including the parts of the civil suit and its settlement. He elected to submit. It may be contended that settlement of a civil obligation does not of itself carry with it proof of guilt in a disciplinary proceeding, but when the amount of the settlement is comparable to the full amount sought by the complainant, and the facts of the suit and of the settlement are not revealed in circumstances which called for their frank disclosure and an absurd reason is offered for the concealment, the inferences against the innocence of the respondent are most compelling.

The respondent's deviousness, however, first appeared much earlier in the proceedings. In his testimony at the hearings before the committee this respondent took a position diametrically opposed to that taken in his five-page sworn answer, an answer which his counsel characterizes as "almost pro forma." Either his answer or the testimony must not only be untrue but false.

We cannot, however, rest our decisions on these general observations, even though they dictate our conclusions. We

are driven to the tedious task of analyzing the voluminous record of an involved factual situation to ascertain, first, the facts that appear to be beyond question; second, the accusations of the complainant and the explanation of the respondent attorney; and third, our views and the disposition of the matter.

I.

The complainant Alex Kurpiewski was the owner of six parcels of real estate in South Amboy and Sayreville, all of which were covered by a blanket mortgage held by the South Amboy Trust Company. He had lost the job which he had held for 42 years; he was behind in his mortgage payments; his taxes were delinquent and he was otherwise in financial difficulties and threatened with the loss of his home and small tavern business through foreclosure. In all, his total indebtedness was approximately $17,500.

In this situation he sought help. He wanted a lawyer, but not from South Amboy, where he lived. Prior to July or August 1954 Kurpiewski and Eric J. Gavel were personally unacquainted with each other. Kurpiewski approached John Gavel, the respondent's uncle, in the summer of 1954, and after a self-introduction told John Gavel that he was looking for a lawyer. Kurpiewski had indicated an acquaintance with several of John Gavel's employees and presumably he knew that John's nephew was a lawyer, for he sought an introduction with the respondent through the uncle. Kurpiewski's initial need for legal assistance was in connection with a claim for wrongful discharge from employment. Kurpiewski also came to know the respondent's father, Joseph Gavel, an inactive real estate broker and the proprietor of a gas station in Sayreville, and Chester Weiss, a young man who had been raised from boyhood in the Gavel household and who was at times an employee of John Gavel.

A great deal of discussion ensued in the days and weeks that followed the initial introduction of Kurpiewski to the Gavel family, most of which involved Kurpiewski's desire to get out ...


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