On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. Opposed -- None.
The Disciplinary Review Board (DRB) considered two presentments filed by the District IV Ethics Committee for Camden and Gloucester Counties (Committee). Those presentments dealt with three areas of alleged misconduct on the part of respondent, Harry L. Shaw, growing out of his representation of clients involved in automobile accidents occurring in 1973 and 1975.
The first allegation of ethical misconduct was that respondent unethically induced the driver and passenger in the 1973 accident to undergo unnecessary medical treatment to bolster their otherwise inconsequential claims for personal injuries. The DRB was troubled by the wide discrepancies between the versions of the driver and passenger on the one hand and the respondent on the other, and by the fact that the treating physician had not been subpoenaed to testify before the local Committee. However, on the record before it, the DRB was
"constrained to take no action regarding this portion of the case." Our independent review of the record leads us to concur in that determination. We therefore turn to the two remaining charges, as to which the DRB concluded that ethical infractions had been established by clear and convincing proof.
The second allegation grew out of respondent's representation of both the passenger and driver of one automobile involved in a two vehicle accident on June 24, 1973 in Palmyra, New Jersey. The complainant, Efraim Martinez, was the driver and Edwin Santana was his passenger. The DRB found, and respondent admits, that by July 1972 respondent was representing both complainant and his passenger for claims arising out of that accident. His efforts to settle the Martinez and Santana claims were unsuccessful. Events thereafter, as summarized by the DRB, were as follows:
[O]n or about June 15, 1975 respondent, as attorney for [the driver, Martinez], filed a complaint in the Superior Court of New Jersey, Law Division, Burlington County, naming Gertrude Fuller, the driver of the other vehicle, as the sole defendant.
On June 24, 1975 respondent, as attorney for Edwin Santana, filed a complaint in the same court, naming both the complainant and Ms. Fuller as defendants. The second paragraph of the second count of that complaint read thusly:
"At the aforesaid time and place the defendant Efraim Martinez so carelessly, negligently, and wantonly drove his vehicle so as to cause it to come into violent contact with the vehicle driven by Gertrude Fuller whereby the plaintiff was permanently injured, requiring him to incur substantial medical bills, present and future and preventing him from attending to his business."
Respondent's representation of both Martinez and Santana continued until January 12, 1976, when another attorney was substituted as attorney for Martinez. In his answer to the complaint respondent explained his failure to withdraw from Mr. Martinez' representation as of June 24, 1975 as a "clerical error by my office". In his letter of June 15, 1979 submitted to the Board prior
to its consideration of this matter respondent stated that he met with a representative of Ms. Fuller's insurance company in July 1974 and verbally settled both cases. Subsequently that particular representative left the employ of the insurance company and the settlement agreed to could not be finalized. Finally, as the time for the running of the Statute of Limitations approached, respondent was unable to find an attorney willing to take one of the cases, and, as a last resort, filed both complaints.
Shaw's representation of these conflicting claims continued until January 12, 1976, when he turned the Martinez file over to another attorney. Respondent's only explanation for clinging to both files so long was that he was unable to find other counsel willing to handle one of the claims.
The local Committee determined that Shaw's conduct in representing the competing claims of both Martinez and Santana was clearly unethical. It recommended a private reprimand. The DRB ultimately filed a report and recommendation with this Court calling for respondent's suspension from the practice of law for six months. However, while the matter was pending here, an additional ethics complaint was lodged against Shaw, wherefore we ordered the Martinez-Santana matter remanded to the DRB for further consideration after the second complaint had been processed.
In its final determination the DRB reiterated its conclusion that respondent's representation of the driver and passenger, and, more particularly, his representation of the passenger in a suit against his own client, driver Martinez, clearly violated DR1-102(A)(5) and (6), prohibiting conduct prejudicial to the administration of justice and conduct reflecting adversely on a lawyer's fitness to practice law, and DR5-101(A), requiring a lawyer to "decline proferred employment" when it would create a conflict of interest. The DRB found that Shaw ...