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, Garibaldi and Stein. Opposed -- None.
This disciplinary proceeding arises out of two presentments filed by the District IV Ethics Committee for Camden and Gloucester Counties (the Ethics Committee), which concluded in each matter that respondent had committed unethical conduct. The Disciplinary Review Board (DRB) agreed with the Ethics Committee's finding of unethical conduct, and unanimously recommended that respondent be publicly reprimanded. Our independent review of the record leads us to the conclusion that respondent has been guilty of unethical conduct in the matters charged. However, we think that a three months suspension from the practice of law more appropriately reflects the seriousness of respondent's conduct.
Respondent was admitted to the bar in 1951. The presentments stem from two separate transactions.
On October 19, 1982, Lloyd Humphrey retained the respondent on a contingency fee basis to handle all claims for injuries
that Humphrey sustained in a fall from the roof of his brother's house. Three days later, on October 22, 1982, Humphrey sent a mailgram to respondent to "cancel" their agreement. On that same date, Humphrey sent respondent a letter confirming he would "like to cancel" their agreement for respondent to represent him.
Shortly thereafter, notwithstanding Humphrey's termination letter, respondent telephoned Humphrey several times and urged him to continue the legal action, suggesting that the insurance company would not settle if Humphrey were not represented in his claim. Respondent also forwarded several letters to various persons including doctors and a hospital in preparation of the case.
By letter dated April 18, 1983, Humphrey advised respondent he did not "currently wish" to have respondent represent him, adding that should he find the insurance company totally uncooperative in settling the matter, he would then use respondent's services. By letter dated April 29, 1983, respondent replied he had already filed the lawsuit. At the ethics proceedings, respondent produced a copy of a letter dated April 12, 1983, to the Clerk of the Superior Court in Trenton in which he filed the legal action on behalf of Humphrey. A copy of the first page of the complaint marked into evidence at the ethics proceedings reflected a filing date of April 22, 1983.
When Humphrey received respondent's letter, he telephoned respondent and told him he did not want a lawsuit filed. Respondent replied that if he attempted to withdraw the legal action at that time, Humphrey would incur expenses and would not receive anything from the insurance company. Humphrey then instructed respondent to do what he could to settle the matter immediately.
On August 30, 1983, Humphrey wrote respondent, stating that his family did not agree with his approach in resolving this matter and instructed respondent "to do whatever is necessary to resolve and settle this case immediately." This letter was
followed by a mailgram dated September 1, 1983, in which Humphrey directed respondent "to settle this case within the week or drop it completely."
Respondent answered by letter dated September 8, 1983. He informed Humphrey that he was awaiting a medical report before he could proceed further with the case. On October 11, 1983, respondent received the medical report in which the doctor found that Humphrey would experience some disability, including pain and a limitation of functioning.
Two days later, on October 13, 1983, Humphrey sent respondent a letter, which stated in part:
Effective with the date of this letter, please be advised that your services are no longer required and are terminated. Your authority is null and void.
Respondent was further directed by Humphrey to transfer all his files to a Patrick Shannon, Esq., Humphrey's new attorney. Nonetheless, on October 17, 1983, respondent accepted the insurance company's offer of $5,000 in full settlement of the case. He immediately wrote Humphrey informing him of the settlement. In that letter he acknowledged Humphrey's October 13, 1983, letter merely by stating that he had received it. On October 20, 1983, without waiting for further communication from his former client, respondent wrote to the insurance company, requesting a release.
On October 17, 1983, Patrick Shannon, Esq., Humphrey's new attorney, wrote respondent, informing him that he had been retained by Humphrey. Four days later he wrote a similar letter to the insurance company.
On October 25, 1983, before the insurance company became aware of the presence of a second counsel, it forwarded a release form and Stipulation of Dismissal to respondent.
This flurry of correspondence caused confusion, and on October 28, 1983, the attorney for the insurance company wrote to Mr. Shannon:
Both you and Mr. Brady have confirmed that this case is settled for $5,000. Under these circumstances, I am confused as to who is representing Mr.
Humphrey, at this point. I would appreciate your advice ...