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In re Shear

Decided: March 8, 1977.

IN THE MATTER OF ROBERT L. SHEAR AND ROBERT H. KRAUS, ATTORNEYS AT LAW


For reprimand -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None.

Per Curiam

[72 NJ Page 475] This disciplinary proceeding against respondents Robert L. Shear and Robert H. Kraus, who are members of the bar of this State, has its origin in their representation of Leon J. and Paula H. Yarusi in a real estate transaction. The Yarusis owned property at the corner of South Avenue (N.J. State Highway Route 28) and Second Street in Fanwood, N.J., which had highway frontage of approximately 186' and was 156' in depth. In October 1971, the Yarusis agreed to sell the corner portion of the property measuring 100' x 156' to a savings and loan association and consulted respondent Shear about a contract, subdivision of the property and other details. The savings and loan association was anxious to have a contract

executed as soon as possible as it was filing an application for a branch office with the Department of Banking of the State of New Jersey and needed the contract to support its application.

A form of contract was prepared in respondents' office. Shear had the Yarusis sign the draft on November 7, 1971 and immediately delivered it to the president of the savings and loan association. It then developed that the survey of the property (dated August 26, 1969) attached to the contract, which purported to indicate the tract to be conveyed, was obsolete as it showed the corner to be squared when in fact the State of New Jersey had in 1970 rounded off the corner and installed curbing.*fn1 This error resulted in the proposed contract actually providing only 94' of highway frontage for the purchaser and was unsatisfactory to the association which insisted on a full 100' frontage.

In order to compensate for the inaccuracy, a revised survey, dated November 18, 1971, was then attached to the contract in place of the original survey. The revised survey fixed the dimensions of the tract to be conveyed as 100' frontage on South Street, overall width of approximately 106' and depth of approximately 156'.

It is this change in the contract which added an additional six feet to the width of the tract being conveyed, together with the addition of clauses regarding parking privileges, etc., which form the basis of the ethics complaint. The Yarusis allege that the contract modifications were made without their knowledge and consent. They also claim that respondents' retention of Charles Thatcher, another attorney, to handle the subdivision application, was done without their authorization. They contradict Kraus' testimony that he told the Yarusis in November 1971 that he was a member of the Fanwood Planning Board, that the

office could not handle the subdivision application because of the conflict, and that another attorney was being retained to process it. Indeed, the Yarusis testified that in November 1971, when Thatcher was retained, they did not even know respondent Kraus and met him for the first time in February 1972.

The foregoing testimony by the Yarusis formed the background of an additional unrelated ethical charge against respondents as follows. When the Yarusis were cross-examined as to their insistence that they had never met Kraus prior to February 1972, they were shown legal documents dated in June 1971 signed by them and bearing Kraus' signature as a witness. Two of the documents were wills executed by the Yarusis and dated June 21, 1971. These wills bore the attesting signatures of Shear and Kraus. Despite this evidence, the Yarusis adhered to their prior testimony and, as to the wills, said they had executed them in the presence of Shear only. According to Mrs. Yarusi, Shear said that Kraus would sign the wills later.

Respondents categorically deny that the wills were executed in such a manner. It is suggested that the Yarusis had a motive for testifying as they did because, had they admitted that the wills were executed in the presence of both respondents, it would have contradicted their prior testimony that they never met Kraus until February 1972.

The Somerset County Ethics Committee,*fn2 with one member dissenting, regarded the Yarusis' testimony as clear and convincing and found that respondent Shear had induced the execution of the wills outside the presence of a necessary witness and that respondent Kraus had signed as a witness when in fact he did not witness the execution of either will.

It is unnecessary to resolve the factual issue. We are satisfied that in view of the conflicting testimony, the doubt cast on the veracity of the Yarusis' testimony by virtue of other pre-February 1972 documents bearing Kraus' attesting signature and the possible motive the Yarusis could have had for fabrication, the ethical violations charged to respondents in connection with their attesting to the execution of the ...


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