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In re Surgent

Decided: May 14, 1979.

IN THE MATTER OF JOHN W. SURGENT, ATTORNEY-AT-LAW


On Order to Show Cause why respondent should not be disbarred or otherwise disciplined.

For suspension -- Chief Justice Hughes, Justices Mountain, Clifford, Schreiber and Handler and Judge Halpern. Opposed -- None.

Per Curiam

After considering three complaints against respondent the District Ethics Committee for Passaic County issued presentments on two of the matters and recommended a private reprimand on the third. Thereafter the Disciplinary Review Board, upon a review of the full record and following a hearing, agreed with the local Committee's determination that Mr. Surgent had engaged in improper and unethical conduct. The Board recommended that this Court issue a public reprimand and charge respondent for the actual cost of disbursements for stenographic transcripts arising out of these disciplinary proceedings.

Our independent review of the entire record leads to the conclusion that respondent has been guilty of ethical infractions in several instances. Moreover, while we attach considerable weight to the recommendations of the Disciplinary Review Board, it is our view that a reprimand inadequately reflects the seriousness of the misconduct revealed by this record. We therefore impose a period of suspension.

We address the three complaints in the same order as appears in the Decision and Recommendation of the Disciplinary Review Board.

I

In October, 1977 Mrs. Barbara McNeill retained respondent to institute suit on behalf of Automated Management Association, a corporation of which Mrs. McNeill was a principal. It was a matter of some urgency requiring immediate attention. Respondent promptly but unsuccessfully sought emergent relief in the Superior Court and, when that was denied, immediately made application in the United

States District Court, likewise for emergent relief. In this latter suit respondent, for jurisdictional purposes, listed various clients of Automated Management Association as plaintiffs. The signatures of these clients were needed for the Verified Complaint and on the individual verifying affidavits filed with the federal court.

To that end, and in order to expedite matters, respondent arranged for Mrs. McNeill personally to travel to the clients' various offices in New York State to obtain the necessary signatures. However, although respondent cautioned Mrs. McNeill as to the necessity for the clients to read the documents before signing them, and although Mrs. McNeill was supplied with a chauffeur to driver her to the clients' offices, no Notary Public accompanied her for the purpose of taking the jurat on the papers to be signed by the clients.

When Mrs. McNeill returned with the papers, respondent took the jurat for the respective clients who had signed the documents, even though he had not actually seen them affix their signatures and had not obtained their acknowledgement of those signatures or placed them under oath. Respondent admits that his conduct in this regard amounts to a violation of DR1-102(A)(4), prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation, and of DR7-102(A)(5), prohibiting the knowing making of a false statement of law or fact, as found by the Disciplinary Review Board; but he attempts to minimize the severity of the misconduct by reference to the emergent nature of the circumstances. We need not determine whether the Disciplinary Review Board's findings, which respondent challenges, that he took the jurat "casually" and that his disregard of his professional obligation was "cavalier" are supported by clear and convincing proofs in the record; for irrespective of respondent's state of mind or of the circumstances in which he found himself, we are not presently aware of any situation whatsoever in which this sort of violation could be condoned. While it is true that similar violations have received less than perfectly consistent treatment by our courts over the

years (compare In re Breidt and Lubetkin, 84 N.J. Eq. 222 (Ch. 1915) with In re Conti, 75 N.J. 114 (1977); and see In re Mocco, 75 N.J. 313, 317 (1978)), we take this opportunity to disabuse the bar of any lingering notion that the plain and unmistakable requirements regarding the ...


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