On Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None.
Respondent John P. Fusciello was admitted to the bar of New Jersey in 1963. This disciplinary proceeding against him is bottomed on charges of the misuse and mishandling of trust funds, failure to act competently and failure to maintain proper financial records. He has been under temporary suspension by order of this Court since December 13, 1977.
Evidence presented at the disciplinary hearing established the following:
Respondent represented the buyers in the purchase of a residence in Colts Neck. A mortgage commitment was received from the Statewide Savings and Loan Association the amount of which, together with additional funds provided by the buyers, was turned over to respondent to be used by him to pay off an existing mortgage on the property in the amount of $77,000. Respondent, however, did not pay off the old mortgage. Instead, he misappropriated the $77,000, using it to satisfy preexisting overdrafts on his trust account.
Lanigan was injured in an accident in 1967. He and his wife retained respondent to institute suit. Although respondent told the Lanigans that suit had been instituted in federal court and was proceeding normally, he never filed suit and allowed the statute of limitations to run on the claim. Thereafter, he advised the Lanigans that the defendant's insurance carrier had
forwarded a partial settlement of $25,000 to respondent and that he had placed the money in his trust account. This representation by respondent was false, and the purported settlement a complete fiction. However, at the Lanigans' request respondent paid them a total of $6,000, supposedly out of the $25,000, as an advance on the settlement. Actually, the $6,000 payment was made out of trust funds belonging to other clients. To complete the charade, respondent notified the Lanigans that the case had been settled for $85,000 and delivered to them his trust check for $59,250 ostensibly representing their share of the settlement. Aside from the fact that there had never been a settlement, respondent knew that the Lanigan check would be dishonored since there were no funds in his account. The Lanigans have subsequently sued respondent for malpractice.
Respondent represented Elizabeth Schneider and settled a claim of hers for $2,500 out of which she was to receive $1,500. Although respondent deposited the settlement check in his account, ...