On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. Opposed -- None.
[88 NJ Page 444] The District II Ethics Committee for Bergen County charged the respondent with numerous incidents involving improper conduct. The Committee held hearings and then submitted its presentment to the Disciplinary Review Board which, after examining the record and hearing counsel and the respondent, submitted its recommendation to this Court. We issued an order to show cause, heard oral argument and reviewed the record. We make the following findings and conclusions based on our independent review of the record.
Ruth and Harold Witter retained respondent on January 3, 1974 to appeal a judgment granting custody of their grandchildren to a maternal aunt. They paid respondent $1,320 of which $900 was for his fee. The balance of $420 was to be applied to costs of the appeal. When the cost of the transcript exceeded the estimate by $111.50, the Witters paid respondent that amount.
Respondent had promptly filed a notice of appeal and thereafter did nothing further to prosecute the appeal except to order the transcript. Thereafter during a period of more than three years, Mr. and Mrs. Witter telephoned respondent to find out the status of the appeal. At first he replied that the appeal had been filed and the matter would be coming up shortly, despite his knowledge that the appeal had been dismissed for lack of prosecution. Later, respondent simply failed to respond to the Witters' inquiries.
Finally the Witters retained other counsel in April 1977 to find out what had happened. Their new attorney wrote respondent on four occasions, April, July, August and October. Respondent never replied.
A complaint was filed with the District II Ethics Committee and served on respondent on March 10, 1978. When the matter came on for hearing more than a year later, respondent had not filed an answer. When asked why it had not been prepared, he responded, "It's just inattention." He sought an adjournment, saying, "Now that I'm here -- I need counsel."
The matter was adjourned. When the hearing recommenced on May 30, respondent appeared pro se. He stated he had not spoken to an attorney whom he desired to retain until the day before, but the attorney was not available.
The hearing was not completed on May 30 and the continued date was September 17, 1979. Respondent did not appear on that date or explain his unavailability.
Insofar as the appeal is concerned, the record disclosed that (1) a notice of appeal was filed on January 9, 1974; (2) the Appellate Division on its own served a motion to dismiss the appeal on May 13, 1974; (3) the motion was denied and the respondent given to June 13, 1974 to file his brief; (4) the brief was not filed and a motion to dismiss was served on August 23, 1974, returnable September 3, 1974, and (5) there being no appearance, the appeal was dismissed.
On August 30, 1974, respondent telephoned David Brantley and requested he appear on the motion on September 3 to seek another extension of time to file the brief. Respondent was going on vacation for approximately four weeks. Brantley understood the return date was September 4. Respondent had not mailed the notice of motion to Brantley until Saturday, August 31. Monday, September 2 was Labor Day, and Brantley did not receive the notice until the end of the business day on September 3. Brantley called the Clerk's office and was advised that a motion to vacate would have to be filed.
Respondent moved to vacate the dismissal more than 16 months later on January 23, 1976. The clerk of the Appellate Division wrote respondent that his motion had to be supported by a brief. Respondent did not reply. Repeated telephone calls were made from the Clerk's office to respondent seeking the ...