On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For suspension for three years -- Justices Sullivan, Pashman, Clifford, Schreiber and Pollock. Opposed -- None.
[83 NJ Page 110] These disciplinary proceedings arise from separate transactions involving four of respondent's clients. In June, 1975, the Middlesex County Ethics Committee received the first complaint against respondent from Callie Hawkins, who was dissatisfied with Rabb's handling of her false arrest claim against a department store. In due course a statement of charges was filed against Rabb. As a result of the hearings on those charges and the report of the Committee's investigating member the Committee itself filed a second statement of charges in January, 1977 regarding Rabb's representation of Elaine Bell, likewise in connection with the department store incident, and of Elaine Bell's daughter, Kim Hawkins, in connection with an entirely unrelated incident. After further hearings the Committee filed its presentment with this Court. The third complaint and statement of charges, filed in February, 1978 by the same Committee and resulting in a Presentment to the Disciplinary
Review Board (DRB),*fn1 emanated from a trial judge's discovery during a settlement conference of respondent's alteration of a treating physician's report referable to one of Rabb's clients, Grace Brunt. The DRB held hearings and in due course sent its decision and recommendation to this Court.
Before discussing the charges in order, we observe that Rabb, who was admitted to the bar in 1966, was suspended from the practice of law for six months from June 13, 1977. In re Rabb, 73 N.J. 272, 281-82 (1977). An application for reinstatement after that period had elapsed was rejected by this Court because of a criminal indictment then pending against respondent. The State eventually dismissed the indictment in 1979, and the Committee in turn dismissed an ethics complaint based on that same indictment. In the meantime the Callie Hawkins-Elaine Bell-Kim Hawkins matter was first argued before this Court in May, 1978, by which time the episode involving the Brunt medical report had surfaced. We therefore withheld final disposition of the Bell-Hawkins charges pending resolution of the Brunt incident. Respondent's suspension has thus continued since 1977.*fn2
We address first the charges surrounding respondent's representation of Callie Hawkins, who, together with her sister-in-law,
Elaine Bell, retained respondent in July, 1974. Mrs. Hawkins and Mrs. Bell executed retainer agreements on that date in connection with their claims arising out of an alleged false arrest in a discount department store. As will appear below, Mrs. Bell's daughter, Kim Hawkins, executed a retainer agreement at the same time with respect to her separate claim for personal injuries resulting from an accident which had occurred some years previously. On the occasion of this first interview the clients initially spoke with an associate in the Rabb office and thereafter briefly discussed their claims with Rabb himself. They executed the retainer agreements in respondent's presence.
Shortly thereafter respondent filed a complaint in the Union County District Court on the false arrest claims, naming Elaine Bell and Kim Hawkins as plaintiffs. Obviously he confused Kim Hawkins, who had no involvement whatsoever with the false arrest, with Callie Hawkins, in whose name suit should have been brought. As might be expected this error generated further confusion, compounded by respondent's failure to communicate significant information (for instance, the trial date) to Mrs. Hawkins even after the mistake in naming the parties had been brought to his attention. When Rabb's associate informed Mrs. Hawkins that the case had been settled (the Union County District Court records so indicated), the relationship was hardly enhanced, in view of the fact that neither Mrs. Hawkins nor Mrs. Bell had authorized any settlement.
Mrs. Hawkins' continuing efforts to talk directly with Rabb were deflected until, her frustration no longer capable of containment, she threatened to "take [respondent's] whole staff to court if he did not get on the 'phone." This offer produced the desired result in that respondent promptly took the telephone call, but it is not entirely clear what the ensuing dialogue accomplished. While it is obvious that Mrs. Hawkins expressed her displeasure with the way her case had been handled, it is equally obvious that she did not discharge her attorney.
Nevertheless, the following day, April 30, 1975, Rabb sent Mrs. Hawkins a certified letter reciting that he had been unsuccessful in obtaining any money for her. The letter informed her that she had until February 2, 1976 (the expiration date of the statute of limitations) "to seek the services of another Attorney"; and that "[a]s of this time forth" respondent considered the employment relationship terminated. At this point he had taken no steps to have Mrs. Hawkins' case restored to the trial list; nor did he deliver to his client, with the April 30 "termination notice," any pertinent papers relative to the suit. It was not until about a month later, upon receipt of Mrs. Hawkins' letter requesting her papers, that respondent sent Mrs. Hawkins an examining physician's report, together with the doctor's bill. Mrs. Hawkins was understandably nonplussed to discover that the report referred to Kim Hawkins' injuries in the entirely separate incident and that even at this late date Rabb persisted in the identification error which had spawned his troubles. Shortly thereafter Mrs. Hawkins sent a letter of complaint to the Committee.
Respondent's written response to the Committee undertook to excuse his conduct on the ground that Mrs. Hawkins' claim "was, in fact, a spurious, frivolous one, one completely without merit in that she suffered no real damages." Claiming that he "exercised [his] judgment as an officer of the Court not to reinstitute or restore the matter" because DR 7-102(A)(2) cautions against knowingly advancing a claim unwarranted under existing law except in a good faith effort to change the law, respondent told the Committee that Mrs. Hawkins had "acted in bad faith in initially representing * * * that she had a valid claim."
The facileness of this pretentious, self-serving justification for respondent's mishandling of claimant's affairs is underscored by the fact that after her unfortunate experience with Rabb, Mrs. Hawkins went to another attorney who instituted a new suit on the same cause of action and prosecuted it to a successful
conclusion, the jury returning a verdict of $2,000 (later compromised for $1700).
The Committee rejected respondent's assertion that he knew nothing about the dismissal of Mrs. Hawkins' case. It found him to be less than candid as a witness, and concluded that he had "deliberately failed and refused to receive and return telephone calls" of Mrs. Hawkins "because he did not choose to speak with [her] concerning the status of the case." The Committee concluded that Rabb's conduct constituted deceit and misrepresentation by nonfeasance in violation of DR 1-102(A)(4), that respondent improperly withdrew from employment in ...