On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
[99 NJ Page 511] This case concerns respondent's representation of a client in an appeal to the Appellate Division from a Bergen County
District Court judgment rendered against her in a landlord-tenant case. The client, Ms. Schulz, filed a complaint with the District II Ethics Committee (Committee) in which she alleged that the respondent failed competently to handle her appeal to the Appellate Division and that he improperly withdrew as her attorney. The Committee dismissed the complaint after a hearing. Ms. Schulz appealed, and the Disciplinary Review Board (DRB) reversed the Committee's dismissal. After a hearing, the DRB found by clear and convincing evidence that respondent "violated DR 6-101(A)(1) in that his failure to properly pursue the appeal despite the client's failure to pay the requested retainer constituted gross negligence," and that "he violated DR 2-110(A)(2) by improperly withdrawing from employment." The DRB recommended that respondent be suspended from the practice of law for three (3) months. We agree.
Respondent was admitted to the Bar of New Jersey in 1971 and was an Assistant Prosecutor in the Bergen County Prosecutor's Office. In 1978 he went into general practice with two other attorneys. Neither at the Prosecutor's Office, where he had been assigned to the trial section, nor in private practice did respondent do any appellate work. The appeal involved herein was the first appellate matter respondent handled.
The respondent did, however, have substantial experience in the field of tenants' rights. In 1978 respondent was active in the New Jersey Tenants' Organization where he provided free legal counseling once a week, and in the New Jersey Tenants' Research and Educational Development Organization. He was also Chairman of the Cliffside Park Rent Leveling Board. Respondent continues to be active in the field of tenants' rights, both as a professional and a volunteer.
After respondent had been in private practice for approximately nine months, the New Jersey Tenants' Organization requested that he represent, without charge, Ms. Schulz in a
summary dispossess action in the Bergen County District Court. Prior to retaining the respondent, Ms. Schulz had been involved in litigation with her landlord that included six court appearances. In two of these appearances she was represented by private attorneys, in two by attorneys from Legal Aid, and two appearances were pro se.
Included among these appearances was one occurring in April of 1979, in which she was represented by a private attorney in connection with a dispute with her landlord. She had paid her monthly rent into court for approximately five months and asked for a rent abatement on the ground that the premises were not habitable. Subsequent to an adverse ruling by Judge Taylor, she again withheld her rent.
In June 1979 respondent represented Ms. Schulz in a similar dispute with her landlord. The trial, which lasted for two days before Judge Franklin, resulted in a ruling against Ms. Schulz. Respondent did not charge Ms. Schulz a fee for his representation.
At this time Ms. Schulz told respondent that she was unhappy with the result of the April 1979 case and asked him to appeal the case for her. Respondent agreed to represent Ms. Schulz in her appeal for a fee of $200. Although Ms. Schulz denies it, respondent claims that he told her he wanted a $100 retainer before he would start work on the brief. No written retainer agreement was entered into by the parties. On July 6, 1979, respondent filed a notice of appeal to protect Ms. Schulz's rights. However, he claims that he did not believe that filing the notice would commence his representation, that he was doing her a favor, and that this would be the end of the matter because he did not believe she could obtain even the $100 retainer.
The notice of appeal filed in July was rejected by the Clerk of the Appellate Division because respondent failed to submit the proper transcript request form. There were other problems with the filing fee and the filing of the original transcript, but
these problems were corrected. On August 14, 1979, the notice of appeal was deemed filed.
Between July 1979 and November 1979 respondent had many conversations with Ms. Schulz. He claims he repeatedly told her he would not pursue the appeal unless he received the $100 retainer. On November 28, 1979, he sent a letter to Ms. Schulz stating:
We are in the process of preparing the Brief and Appendix for your appeal. It should be done shortly. However, we note that you have not sent in a retainer for our fee in this case.
Kindly send us $100.00 for the retainer, so that we can continue working on your appeal. Of course, the retainer is applied against the final fees.
Ms. Schulz claims that until she received this letter, she was unaware that the $200 fee had not been paid. She further claims she was never told that nothing would be done on her appeal until the retainer was paid. Ms. Schulz was expecting respondent's fee to be paid by one of her friends. Upon receipt of respondent's letter Ms. Schulz informed respondent that his fee was supposed to have been paid by another, but that it appeared unlikely that the person who had ...