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Matter of Gill

Decided: March 3, 1989.

IN THE MATTER OF JOHN V. GILL, AN ATTORNEY AT LAW


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.

Per Curiam

[114 NJ Page 246] This matter involves an attorney-disciplinary proceeding prompted by three complaints filed against the respondent, John V. Gill. The complaints generally allege a pattern of

neglect and conduct indicating unfitness to practice law. The Disciplinary Review Board (DRB) determined that respondent's actions "constituted conduct involving dishonesty, fraud, deceit and misrepresentation," and demonstrated an "appalling pattern of neglect." Further, the DRB found respondent had breached his fiduciary obligation to a client by failing to forward $500 to the client's husband, but concluded that respondent had not knowingly misappropriated clients' funds. Respondent voluntarily withdrew from the practice of law in 1983. Following a motion for temporary suspension by the Office of Attorney Ethics, respondent consented to his suspension from the practice of law in January 1984. A majority of the DRB recommended that respondent's consensual suspension in January 1984 to the present be deemed sufficient discipline. Among other conditions, the DRB recommended that respondent's reinstatement be subject to respondent's submitting proof of his fitness to practice law in the form of a psychiatric report. After a thorough and independent review of the record, we adopt the disposition recommended by the DRB.

I.

Respondent was admitted to the Bar of the State of New Jersey in 1974. Respondent was a sole practitioner when the incidents underlying this disciplinary action arose in 1979. Before this Court, respondent neither denies the allegations against him nor disputes the factual conclusions and recommendations of the DRB. The facts surrounding the three complaints follow.

The Infante Matter

In October 1977, Madelyn Infante fell in a shopping-center parking lot, fracturing a bone in her arm. Mr. and Mrs. Infante retained respondent to represent them in a negligence action against the owner of the shopping center. In October 1979, respondent filed a complaint on behalf of the Infantes, but neither served the complaint on the defendant nor took any

further steps to litigate or settle the claim. As a result, the matter was dismissed for lack of prosecution.

From the time of the Infantes' initial visit in 1977 until December 1982, respondent either avoided communicating with his clients or misrepresented the status of the suit. At one point, respondent falsely informed Mrs. Infante that the defendant, who never had been served, had agreed to settle the case for $18,000. On another occasion, respondent told Mrs. Infante that she needed a medical report and drove her to a doctor, giving her $100 for the examination. The examination was conducted and a report was drafted. However, respondent never took steps to obtain a copy of the report. Finally, in December 1982, respondent visited the Infantes' home and admitted that the case had been dismissed because of his failure to serve a summons and complaint. He also acknowledged his misrepresentation about the settlement offer. The Infantes subsequently instituted a civil action against respondent, but after depositions elected to discontinue the matter. That suit was eventually dismissed for lack of prosecution.

The Ferrara Matter

Respondent was retained by Joan Ferrara in 1979. Her former husband, Charles, from whom she was divorced in 1975, had died in a traffic accident in California. Although Mrs. Ferrara had no knowledge about the specific circumstances of the accident, she engaged respondent in order to pursue a possible wrongful-death claim on behalf of her two minor children. Respondent accepted a $50 retainer. From May 1979 until early 1982, respondent informed Mrs. Ferrara that he had retained California counsel and that the case was proceeding. In early 1982, respondent told Mrs. Ferrara that he had discharged the California attorney and was in the process of retaining new counsel. During the next several months, Mrs. Ferrara was unable to learn more about the status of her suit despite several attempts to do so. In November 1982, Mrs. Ferrara was told by respondent that he had settled the case for

$46,000 and that she would have the money by the end of December 1982. By January 1983, Mrs. Ferrara had heard nothing more from respondent about the settlement. Mrs. Ferrara called respondent, and he informed her that the delay was caused by her son's status as a minor. Respondent assured his client she would receive the settlement money on the following Monday. When no check arrived, Mrs. Ferrara again called respondent. Respondent told Mrs. Ferrara to be patient, and represented that California counsel would be mailing the settlement check forthwith. Mrs. Ferrara asked for the name of the California lawyer but respondent refused to divulge it. When no settlement documents or monies were forthcoming, Mrs. Ferrara sought new counsel, who advised her to contact the Ethics Committee.

After an investigation by Mrs. Ferrara's new counsel, it was learned that no suit had ever been filed on her behalf in California. The failure to file suit resulted in the running of the statute of limitations. That attorney also obtained copies of the police report concerning the accident and learned for the first time that Charles Ferrara had been contributorily negligent and that there was little, if any, chance that a claim could successfully have been asserted on behalf of the two minor children. The attorney instituted a malpractice claim against respondent, but Mrs. Ferrara ultimately determined not to pursue the action.

The Vanderbeck Matter

Respondent represented Margaret Vanderbeck in her divorce from Charles Vanderbeck in 1979. At the time of her divorce proceeding, Mrs. Vanderbeck had a workers' compensation claim pending against her employer. The judgment of divorce provided that Mr. Vanderbeck would receive 20% of the net recovery awarded to Mrs. Vanderbeck in the workers' compensation matter.

Mrs. Vanderbeck subsequently was awarded $2,500 for her workers' compensation claim. In November 1981, the workers' compensation carrier mailed respondent two checks, one in the amount of $500 payable to respondent as his fee, and one in the amount of $2,000, payable to both respondent and Margaret Vanderbeck. Respondent deposited the $500 check in his business account and the $2,000 check in his trust account. Pursuant to the 1979 judgment of divorce, $500 of the award was to be paid to Charles Vanderbeck.

In June 1982, Charles Vanderbeck received a check for $500 drawn on respondent's trust account. Mr. Vanderbeck attempted to cash the check at the bank on which it was drawn. The bank refused to honor the check because the account was closed. The evidence indicated that in December 1981, respondent's trust-account balance was $28.41 and remained substantially at that level until the account was closed by the bank. Respondent apparently was unaware at the time that the bank had closed his trust account. In January 1983, Charles Vanderbeck instituted proceedings to enforce the divorce settlement, and an order was entered compelling respondent to pay Vanderbeck the sum of $500, representing his share of Margaret Vanderbeck's workers' compensation award. In April 1983, Charles Vanderbeck was paid $500 by respondent's counsel.

Before the District Ethics Committee, respondent testified that he gave the $500 he held for Charles Vanderbeck to his client, Mrs. Vanderbeck, because she was in desperate financial straits. When asked whether the banking records reflected this transfer, respondent's counsel informed the Committee that the records were not then available but would be forwarded to the Office of Attorney Ethics shortly after the hearing. After the bank records were submitted, respondent stipulated that the $2,000 sum deposited to respondent's trust account on November 25, 1981, was paid out of that account as follows:

11/25/81 Margaret Vanderbeck $1,000.00

11/25/81 Margaret Vanderbeck 400.00

11/25/81 Margaret Vanderbeck 200.00

11/14/81 John V. Gill ...


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