For suspension -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
[102 NJ Page 504] Based upon a decision and recommendation of the Disciplinary Review Board (DRB or Board), this Court issued an order to show cause why respondent Kurt E. Johnson should not be disciplined. The Board determined that respondent had engaged in unethical conduct in violation of Disciplinary Rules 1-102(A)(4) and (5). The unethical conduct consisted of a misrepresentation
made by respondent to a trial court for the purpose of securing an adjournment of a case that was then being tried. The Board recommended that respondent be suspended from the practice of law for a three-month period as a result of such conduct.
The evidence in this case consisted of the testimony of witnesses who differed rather sharply as to the events critical to the charges. Consequently, the findings of essential facts are dependent upon a careful assessment of witness credibility and a comparative, probative weighing of testimony. The Board meticulously narrated this evidence in its determination. We have also independently reviewed the record and are satisfied that the Board's recapitulation of the evidence is complete and accurate.
The record discloses that respondent had been retained in 1980 by the Bomboleviches with respect to claims against a builder. The case was assigned by respondent to an associate in his office, who prepared and, in May 1982, undertook the trial of the matter. In the course of the trial, on May 25, 1982, the court ruled that the testimony of plaintiffs' expert would be restricted in scope. As a result of this ruling, the value of plaintiffs' case was drastically reduced. The clients were upset over this and arranged a meeting that evening to discuss the matter with respondent. Also concerned about the impact of the trial court's ruling, the associate secured an adjournment of the trial until 10 a.m. the following day. According to the DRB, "the associate was upset by the court's ruling, but had no health problems at that time."
The DRB describes the meeting between the Bomboleviches and respondent:
At the meeting, the Bomboleviches expressed their dissatisfaction with the way their case was proceeding. Respondent told them he would "cancel tomorrow out." This would give Respondent five days to study the court's ruling since Memorial Day was observed on the following Monday. Respondent told them the associate "might become sick." The Bomboleviches were instructed by Respondent not to go to the courthouse the following morning. Mr. Bombolevich testified that the Respondent would take care of the associate
"having a sick day." According to Mr. Bombolevich, there was no further discussion about the associate's health.
Respondent's testimony differed, viz:
Respondent * * * contended that [the Bomboleviches] discussed the fact that the associate appeared to be ill. Respondent maintained that the Bomboleviches informed him that the associate had become discomposed at the hearing. Respondent concluded from this conversation with his clients that his associate had become very "ashen." Respondent stated that if the associate were ill then the trial could not continue the following day. Respondent claims he told the Bomboleviches that his firm would attempt to postpone the trial, but if this was not successful, they would either have a neighbor witness testify or they would deliberately prolong the engineer's testimony so he would have to resume Tuesday.
Respondent stated he was unable to reach his associate that evening after the meeting. The associate, however, claimed he was not able to contact respondent, and thereafter telephoned Mr. Bombolevich, who stated that he and his wife had been instructed by respondent not to attend court the following day because respondent was going to obtain an adjournment. This conversation, we note, was not verified by Mr. Bombolevich. There then occurred a telephone conversation between the associate and respondent, at 7 a.m. on May 26, 1983, pertaining to prolonging or adjourning the trial. "The associate maintained," as restated by the DRB, "that respondent told him that the case would be adjourned and for the associate to report to the law office." But,
Respondent claimed they discussed various options, such as having the neighbor testify, adjourning the trial and the fact that the associate "was not feeling well" due to either a stomach or backache. Respondent maintained that he left to his associate's discretion that if he was not feeling well enough to continue with the trial then that was the answer and they did not have to discuss the other alternatives.
Respondent and the associate then met later that morning at their law office. The associate stated this occurred at approximately 9 a.m. and that upon arriving at the office he "did not ask respondent if the trial had been adjourned." According to respondent, this meeting occurred shortly after ...