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Matter of Sommers

Decided: February 17, 1989.

IN THE MATTER OF CHARLES W. SOMMERS, AN ATTORNEY AT LAW


On an order to show cause why respondent should not be disbarred or otherwise disciplined.

For disbarment -- Chief Justice Wilentz and Justices Handler, Pollock and Garibaldi. For suspension -- Justices Clifford, O'Hern and Stein. Clifford, Justice, dissenting.

Per Curiam

This disciplinary proceeding arises out of three presentments filed by the District II-B (Bergen County South) Ethics Committee (the DEC Committee), which concluded in each matter that respondent had committed unethical conduct. The Disciplinary Review Board (DRB) agreed with the DEC's finding of unethical conduct, and unanimously recommended that respondent be disbarred. We remanded the matter to the DEC for a further hearing on respondent's claim of right to the funds that the DRB determined he had misappropriated. After a hearing the DEC concluded "based upon the facts adduced and testimony adduced before it that the respondent did in fact willfully and knowingly misappropriate funds in his trust account that belonged to other than himself, namely to Mary Gener and to John Gener." Our independent review of the record leads us to the conclusion that respondent misappropriated funds. We conclude that he should be disbarred.

I

Respondent was admitted to the bar in 1969. The presentments stem from seven complaints. Six of these complaints were filed by former clients of the respondent. The seventh complaint was filed by the Office of Attorney Ethics (OAE). We discuss first the six complaints filed by respondent's former clients, all of which establish a pattern of gross neglect and negligence on the part of respondent.

Gullone Matter

In May 1978 respondent was retained by James Gullone to institute a legal action for personal injuries sustained in an

automobile accident. Although respondent filed suit for Mr. Gullone, the suit was dismissed for failure to answer interrogatories. Throughout his representation of Mr. Gullone, respondent failed and refused to advise the client adequately of the progress of his legal action, failed and refused to communicate in writing or by telephone with his client, and failed and refused to turn over papers or provide information to the client when the client sought to engage other counsel.

Jazwinski Matter

In May 1983 respondent was retained by Mary and John Jazwinski to represent them in the purchase of a condominium. The closing for the condominium occurred on May 11, 1983. Respondent failed to give his clients the deed to the condominium until September 1983. Additionally, after the closing respondent failed and refused to provide his clients with a copy of their closing statement, any explanation of the matters shown on the closing statement, and failed and refused to answer any phone calls concerning the closing statement.

Berkey Matter

In August 1980 respondent was retained by Mr. Berkey to represent him in a divorce action. Due to the neglect of respondent, Mr. Berkey was precluded from testifying on his own behalf at the trial. Respondent filed an appeal from the trial court decision without requesting that any fee be paid for his services. Subsequently the divorce action was satisfactorily settled but respondent failed and refused to provide his client with an accounting of the sum of $400 allegedly paid to respondent for expenses, failed to provide his client with a copy of the Final Judgment of Divorce or deed to the marital home, and refused to answer any of his client's telephone calls or letters.

Dispoto Matter

In December 1979 respondent was retained by Madeline Dispoto and her husband to institute a legal action for personal

injuries Mrs. Dispoto had sustained in an automobile accident. Although respondent filed suit for the Dispotos, the suit was dismissed for lack of prosecution on August 9, 1982, with leave to reopen the case. No further action being taken, the action was dismissed with prejudice on March 8, 1983. Earlier in his representation, respondent advised the Dispotos that the suit was proceeding and that he would be "wrapping it up soon." Subsequently, respondent failed to respond to any of his clients' inquiries on the progress of their legal action, failed and refused to communicate in writing or by telephone with his clients, and failed and refused to turn over papers or provide information to the client who sought to engage other counsel.

Conway Matter

Anna Conway died on January 5, 1977. She left a will wherein she named respondent's father as the executor. Prior to her death Ms. Conway had been confined to a hospital, and a law firm had been retained to start incompetency proceedings against her. However, prior to any judgment of incompetency, Ms. Conway died.

Respondent was hired by his father, the executor, as the estate's attorney. He filed for the necessary probate in May 1978. Two of the beneficiaries of the estate, one of whom was named as alternate executor under Ms. Conway's will, constantly wrote letters of inquiry and made telephone calls to the respondent, concerning an accounting and the distribution of the estate. All such inquiries were unanswered. No writings or documents were submitted for the estate; no accounting ever was prepared or filed; and at the time the presentment was filed, the status and location of the estate's assets were not known.

Guido Matter

In 1977, Louis R. Guido retained respondent to represent him in a divorce action. Judgment for divorce was entered on

February 2, 1978, and incorporated the disposition of the marital property. The marital premises were sold pursuant to the Judgment in July 1979 and respondent placed the proceeds in an interest-bearing account.

Thereafter several post-judgment Motions were filed relating to the disbursement of the trust account funds. Between July and November 1980, several disbursements were made from the account to various creditors of the Guidos. A handwritten accounting dated September 1981 was submitted to the court, which resulted in an Order dated November 12, 1981, directing immediate disbursement in accordance with the accounting. Innumerable telephone calls by Mr. Guido to respondent failed to result in distribution of the funds, and respondent had failed to provide an updated accounting to Mr. Guido. Indeed, neither Mr. Guido nor his former wife, Carmen Guido, has received any funds from respondent.

The DRB held that with respect to these six complaints, respondent was "guilty of gross neglect, DR 6-101(A)(1); a pattern of neglect, DR 6-101(A)(2); failure to carry out contracts of employment, DR 7-101(A)(2); allowing statute of limitations to run on various clients' claims, DR 7-101(A)(3); and making misrepresentations to clients and failing to communicate with them, DR 1-102(A)(4) and (6).*fn1

II

Gener Matter

The most serious claim against respondent arises from his handling of income-tax refund in the Gener matter. In 1983

respondent was retained to represent Mary Gener in her divorce action against her husband, John Gener. At a hearing held on October 25, 1983, the court determined the terms of the divorce, including equitable distribution of the marital assets. Specifically, with respect to the federal-income-tax refund received by the Geners, the court stated:

As far as the IRS refund is concerned, when the defendant left I find that there were the following debts: fuel, $587; one and a half months of the first mortgage of $445; two months of the second mortgage of $400. Those were the only provable items. They amount to $1,432. $1,432 out of the total of $1,940 will go to the plaintiff, that leaves a balance of $510 -- my numbers are wrong, leaves a balance of $510. Out of that $510 it will be divided in half, two fifty-five to the plaintiff; two fifty-five to the defendant. In effect, plaintiff will receive $1,687. The defendant will receive $255.

The court directed respondent to prepare an appropriate order setting forth the above-enunciated distribution. He failed to do so. Consequently opposing counsel prepared an Order entered on December 8, 1983, that provided as follows:

Ordered that a certain IRS refund check in the amount of $1,940 and a certain Homestead Rebate check which was previously received by the plaintiff in the amount of $186.00 shall be divided between the parties as follows: $347.00 shall be paid to the defendant and $1,593.00 shall be paid to the plaintiff. From said $1,593, the plaintiff shall pay certain debts which arose from the operation of the marital abode prior to the date hereof. Said expenses are as follows: fuel $587.00; 1 1/2 months of the mortgage payments due on the first mortgage $445.00; 2 months on the second mortgage $400.00; and it is further ORDERED that the attorney for the plaintiff shall pay said $347.00 to the defendant, as said IRS check was to be deposited in the Trust Account of the ...


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