On an order to show cause why respondent should not be disbarred to otherwise disciplined.
For suspension -- Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
This case arises from a report of the Disciplinary Review Board (DRB or Board) recommending a five-year suspension for multiple instances of misconduct by respondent. The matter came before the Board upon a presentment filed by the District V Ethics Committee (Committee). The presentment included complaints filed by eleven former clients against respondent pertaining to a continuing course of misconduct over a prolonged period. The misconduct encompassed a pattern of neglect of clients, failure properly to represent clients, and failure to communicate with them concerning the status of their cases. The presentment also asserted the failure of respondent to answer or otherwise respond to these complaints, as well as his failure to cooperate with the former Division of Ethics and Professional Services (Division).
The Committee found that respondent was guilty of the charges contained in the presentment. The Committee concluded that respondent had violated DR 1-102(A)(6) in that he engaged in conduct that adversely reflected on his fitness to practice law. The Committee also found that respondent had
violated Rule 1:21-6 by failing to maintain adequate records of his trust account. It further determined that he failed to answer some of the complaints filed against him, and as to other complaints, failed to answer within the time prescribed. The Committee recommended that respondent's temporary suspension should continue until such time as he made application for reinstatement, and at that time respondent should submit to a psychiatric examination to determine whether he is suffering from any problem that would prevent him from properly representing clients.
Upon a review of the full record, the DRB concluded there was clear and convincing evidence demonstrating respondent's guilt of unethical conduct. As noted, it recommended a five-year suspension subject to certain conditions. We have independently reviewed the record in this case and reach substantially the same conclusion.
Most of the complaints against respondent disclose a pattern of neglect of his clients' legal problems. Some of the complaints against respondent demonstrate a professional neglect of the legal affairs of his clients that reflected a disregard of their welfare:
(1) One such complaint was filed by Irene Calhoun (later remarried under the name of Kirk). She retained respondent to represent her in a divorce action against her husband and paid him $250 to file an 18-month no-fault divorce at a fee arrangement of $40 an hour. She was having difficulty with her husband regarding child support, but respondent failed to send a letter to her former husband as requested. Following an automobile accident the client informed respondent to delay the divorce proceedings because of problems relating to her husband's insurance coverage. After the settlement of her claim for injuries, the client telephoned respondent's office to advise him to proceed with her divorce action because she was planning to remarry; she later met with respondent and told him she wanted the divorce as soon as possible, but respondent never filed the divorce complaint. For almost a year the client telephoned respondent's office every few days, without success. The client, however, having seen respondent only three times, felt she was at least entitled to a refund of $130 from the $250 retainer. Sometime during this period, she did speak with respondent, who apologized and promised that a check for $130
would be mailed to her within three or four days. Finally, approximately two-and-one half years after she had originally engaged respondent, the client terminated his services and retained another attorney who obtained a divorce.
(2) A client, William McCann, retained respondent to represent him with respect to litigation over a franchise agreement. The client paid respondent $500 and thereafter met with respondent three or four times. Later he received a copy of a letter sent by respondent to the parent company disclosing that a settlement had been reached. According to the settlement, the client was to recover $8,750, approximately one-half of his investment, and the company's law suit against the client was to be dismissed. Respondent called the client two months after the settlement and said he would have papers for him to sign. However, the client did not hear from respondent, and when he began experiencing financial difficulties, he commenced telephoning respondent's office once or twice a week; respondent never returned the calls. When, months later, the client did speak with respondent, the latter was "very antagonistic" and told the client not to bother him or his secretary.
Other complaints reflect not only professional neglect, but resulted in the improper refusal to return unearned retainers:
(1) Richard T. Rosengarten retained respondent to obtain a divorce and paid him a $300 retainer. Respondent failed to respond to client's telephone calls, letters and attempts to communicate with him; he performed no services at all. Eventually the Clients' Security Fund awarded to the client the sum of $300, returning the respondent's unearned retainer. After the matter was referred to the Committee, respondent filed an overdue response with the Committee, denying the allegations and maintaining that the client no longer wished a divorce, which the Committee determined was not true.
(2) Jacqueline E. Lynn and Rose Bembry paid respondent $700 toward a retainer of $1,000 to assist Danny Bembry, who was incarcerated in the Essex County jail. Respondent wanted $2,500 for the case and told the two women that he would not see Danny Bembry until he received the full $1,000 retainer. Later respondent went to the home of the two women and told them that a relative of his was in trouble and that he could use the money they owed him. All they had was $150, which he accepted. Thereafter, the two women made numerous attempts to contact respondent, but were unsuccessful. Two weeks after the original retainer, Danny Bembry escaped from the county jail, obviating the need for legal services from respondent. When respondent was informed of this, he refused to refund any of the money to the two women. Complainants then filed a complaint against respondent, seeking a return of the retainer they had given him. Respondent contended that he had explained to his clients that the retainer was not refundable, which they denied; they also challenged a statement by respondent that he had seen Danny Bembry in the county jail. The Clients' Security Fund credited the complainants' version, concluding that respondent had not earned a retainer, and awarded the complainants $850.00.
Other instances of neglect by respondent of clients' legal matters resulted in legal injury to his clients:
(1) Pearl Hoffman and her husband retained respondent on a contingency fee basis to represent Mrs. Hoffman in a personal injury suit against a hospital for injuries she suffered when she fell on the steps of the hospital. Respondent assured her that a complaint for her injuries would be filed. Several months later, respondent informed her that the insurance company would be contacting her to settle the case, but that she should not accept the offer and should refer the insurance company to him. The client attempted to contact respondent without success; she left messages with the answering service, with respondent's secretary, and sent registered letters, but respondent never contacted her. More than three years after respondent had been retained, the client hired another attorney. Through this attorney Mrs. Hoffman filed a malpractice suit against respondent and eventually obtained a judgment by default for $60,390. When the Committee inquired into this matter, respondent claimed but could not verify that he had "filed a complaint within the applicable limitations" on behalf of his client.
(2) In another matter, respondent had been retained by Joseph Hannon to represent him in a civil action. Answers to interrogatories were not answered, which resulted in Mr. Hannon's defenses being suppressed and a default judgment for $7,500. Respondent contacted Mr. Hannon who, at this time, was residing in California and informed him that if he acquiesced in the $7,500 judgment, respondent would give him a promissory note for $2,500. Mr. Hannon sent the settlement check to his father-in-law, Harold Reiter, who personally delivered the check to respondent to be forwarded to plaintiff's attorney. When Mr. Reiter asked respondent why he would give his son-in-law $2,500, respondent replied that he felt it was the right thing to do. Mr. Reiter concluded that respondent realized that the default judgment was his fault. When Mr. Reiter asked respondent for the promissory note, respondent said he would give this note when he received the release from plaintiff's attorney. Mr. Reiter never received either document and Mr. Reiter's subsequent attempts to contact respondent were unavailing. Telephone messages were unanswered. Finally, he sent respondent a registered letter stating that if he did not receive the release within 24 hours, he would write to the Committee. Respondent never replied and Mr. Reiter filed an ethics complaint.
(3) Also in this category is the complaint of Delilah Dunn, who retained respondent to represent her in a medical malpractice suit against her doctor on a contingency fee basis. Mrs. Dunn had met with respondent for two hours and was told to prepare a listing of all the treatment and medication her doctor had prescribed. When she completed this, she returned to Respondent's office and conferred with him. He told her he would review the material and promised to contact her neurologist. She later discovered in a conversation with that doctor that respondent never contacted him. When Mrs. Dunn did not hear further from respondent she began writing letters and calling ...