On order to show cause why respondent should not be disciplined.
For suspension -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For disbarment -- Chief Justice Vanderbilt. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting).
The Essex County Ethics and Grievance Committee has presented the respondent for unprofessional conduct and such disciplinary action as the court may deem proper and necessary under the facts and circumstances.
In the presentment the committee found the respondent guilty of unethical and unprofessional conduct: (a) that he grossly and negligently failed to protect a client's interest with the result that the client's matrimonial action was dismissed for lack of prosecution; (b) that the respondent's affidavit of inquiry as required by R.R. 4:95-1(a) contained statements false in fact; (c) that in answer to his client's inquiries concerning the status of the divorce action he made false answers that were calculated to mislead the client; and (d) that respondent had done nothing to have the dismissed matrimonial action restored as an active case on the trial calendar. The committee concluded that the respondent's conduct violated Canons 15, 21, 22 and 29.
The following important facts are gleaned from the record. On December 10, 1954 the respondent was retained by the complainant Metz, a resident of this State, to institute a divorce proceeding against his wife, and Metz paid the respondent the sum of $200 as a retainer and on account of his total fee. On February 7, 1955 the respondent filed a complaint for Metz against his wife for a divorce a vinculo, on the ground of desertion, together with an affidavit of residence of the plaintiff as required by R.R. 4:95-1(a). No affidavit of inquiry was filed nor was any attempt made to obtain service by publication and substituted service under R.R. 4:96-1 to 4:96-5.
It does not appear on the record but I think we can assume that the respondent had information that the defendant would acknowledge service under R.R. 4:96-6, because on May 5, 1955 he forwarded a copy of the summons and complaint to the Sheriff of Riverside County, California, and asked him to serve the defendant at the address given in the complaint and have her execute the acknowledgment
of service which had been typed on the back of the copy of the summons accompanying the complaint, and asking that the copy as acknowledged be mailed back together with the affidavit of service.
On May 16, 1955 the Sheriff of Riverside County returned all the papers, stating that "defendant's father, Mr. Devine, stated that Patricia Metz has returned to her husband who is in the Service at Fort Hustus [ sic ] Virginia." The respondent testified below that the plaintiff Metz later in the summer got in touch with him and said his wife was coming here and that he could get her to accept service in New Jersey. At the hearing before the Ethics Committee there was introduced into evidence an acknowledgment of service signed by the defendant Patricia K. Metz, in which she submitted generally to the jurisdiction of the courts of New Jersey. This acknowledgment was dated August 20, 1955 and was not executed in July as the Ethics Committee report indicates, nor was it executed on a Sunday as the respondent testified and as the Ethics Committee found in their presentment.
This acknowledgment could have been, but was never, filed with the clerk of the Superior Court, with the result that on November 9, 1955, on motion of the clerk, a notice of motion was sent to the respondent returnable on December 9, 1955, to dismiss the action for lack of prosecution, and the action was so dismissed. The respondent had not appeared on that date because he claimed he was in Canada on business and had been during this same period and that he did not return until December 10 or 11, at which time the case had been dismissed.
On February 25, 1956 Metz received a letter from the respondent advising him that "due to a clerical error in my office, your case went off the court calendar. I am now having it restored on the calendar and I shall do everything possible to expedite it." Despite repeated telephone calls Metz heard nothing from the respondent, and in September 1956 he left a note at the respondent's office stating he intended to contact the bar association.
On September 20, 1956 he received a letter from respondent stating "through a clerical error your case went off the trial calendar without my knowing about it. I am appearing before the judge on Tuesday morning to have the matter replaced on the calendar. I will advise you in the next week or so how the case stands." On October 11, 1956 Metz reached the respondent by telephone and was advised that a "certificate" of some kind was needed and the necessary certificate was to be mailed to him. However, Metz heard nothing further and in the meanwhile, on November 1, 1956, Metz complained by letter to the Chief Justice and eventually filed a complaint with the Ethics Committee on January 24, 1957. Three days prior to the date of the formal hearing on February 8, 1957 the respondent paid to Metz the $200 which he had received as a retainer.
Respondent has been a member of the Bar of this State since October 1935, and so far as the record discloses there have been no complaints as to his conduct. He admittedly had very limited experience in divorce litigation, since the difficulty he ran into was common in such cases where there is an out-of-state defendant who has to be located and served. There seems to be a common impression, which is not so, that this is the sole responsibility of the lawyer in the case. R.R. 4:96-1, relating to the affidavit of inquiry, requires it be made by the plaintiff or his attorney, but much of the information must be supplied by the client and it is the lawyer's responsibility, through the affidavit of inquiry, to definitely fix the identity of the person to be served as the defendant in the case. In this case Metz supplied the address of the defendant. This address, according to the Sheriff of Riverside County, was a correct address but the defendant no longer resided there, and if the statement made by her father is true and she had returned to her husband, then at that time Metz may not have had a cause of action.
We make these preliminary remarks because delay in the prosecution of a client's cause without more is not necessarily malpractice, although it may result in a ...