On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For reprimand -- Chief Justice Wilentz, and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. Opposed -- None.
Two clients have brought separate complaints against respondent, Richard Rosenthal, in connection with his handling of their cases. As a result of their complaints, both the District X Ethics Committee and the District XI Ethics Committee brought presentments against him. These presentments concern either neglect of the client's case or failure to communicate with the client.
The first complaint was brought by Elsie Van Dunk to the District X Ethics Committee. She was referred to Rosenthal's office by another attorney following a fall on a sidewalk on October 13, 1974. Rosenthal and another attorney in the same office signed a fee agreement with Ms. Van Dunk in late October. The case was initially handled by the other attorney who filed a complaint in March of 1975 and began an investigation. Rosenthal first became actively involved in the case in April of 1975 in propounding and answering interrogatories. Trial was scheduled for February 4, 1976.
At a settlement conference with the only named defendant on the scheduled trial date, Rosenthal informed his client that defendant had offered $500 to settle the case. He advised against accepting the offer since expenses would absorb the bulk of that amount. He also told Ms. Van Dunk that they should have named several municipal entities as defendants. He recommended dismissal of the complaint without prejudice followed by the filing of a new complaint naming additional defendants. Van Dunk agreed to his recommendation.
Respondent did not contact Ms. Van Dunk from February to July of 1976. When she met with him at his office in July, he informed her that he had determined that neither of the municipal entities could be found liable. He advised her that she would have to bear the expense of expert witnesses if she wished to collect more than the $500 offered by the defendant in the first complaint. She felt that it was the attorney's responsibility to pay such expenses. They did not reach an agreement at that meeting and she indicated that she might contact another attorney.
To avoid the running of the statute of limitations, Rosenthal filed a second complaint against the original defendant on October 6, 1976. However, he failed to effectuate service upon the defendant. Nor did he send a copy of the summons and complaint to defendant's attorney. Rosenthal wrote to defendant's attorney in September, stating that a new complaint had been filed and suggesting that the case be settled on the basis of defendant's previous offer. Defendant rejected Rosenthal's settlement offer.
In November 1977, Rosenthal received notice that the Van Dunk suit was about to be dismissed. He took no action on the notice; nor did he advise Ms. Van Dunk that the suit was about to be dismissed. On December 19, 1977 the suit was dismissed for lack of prosecution. Rosenthal claims that he did not notify Ms. Van Dunk of the impending dismissal because she had indicated sometime in November that she did not wish to proceed with the case. She did not learn that her case had been dismissed until after she had filed her ethics complaint against Rosenthal in the spring of 1979. She finally obtained this information, not from Rosenthal, but from the County Clerk's Office.
The District X Ethics Committee concluded that Rosenthal had violated DR 7-101(A) by failing to keep his client informed of the status of her suit, failing to serve the summons and complaint, failing to oppose dismissal of the case, and failing to ...