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Matter of Kasdan

Decided: June 19, 1989.



The Disciplinary Review Board having filed a report with the Supreme Court recommending that MARCIA S. KASDAN, of ENGLEWOOD CLIFFS, who was admitted to the Bar of this State in 1978, be suspended from the practice of law for three

months and that her restoration to the practice of law be conditioned by the requirement that her resumption of the practice of law be under the supervision of a proctor for two years;

And the Disciplinary Review Board's recommendation having been reached on its balancing of its findings of numerous instances of unethical conduct, including instances where respondent misrepresented the status of matters to clients and failed to communicate with them, in violation of DR 1-102(A)(4) and DR 7-101(A)(2) and in being grossly negligent by closing title in a matter without collecting sufficient funds from her clients, in violation of RPC 1.1(a);

And this Court having fully reviewed the record, and good cause appearing;

It is ORDERED that the findings of the Disciplinary Review Board are hereby adopted, and MARCIA S. KASDAN is suspended from the practice of law for three months, effective July 17, 1989, and until further order of the Court; and it is further

Ordered that the Decision and Recommendation of the Disciplinary Review Board, together with this order and the full record of the matter, be added as a permanent part of the file of said MARCIA S. KASDAN as an attorney at law of the State of New Jersey; and it is further

Ordered that MARCIA S. KASDAN be restrained and enjoined from practicing law during the period of her suspension; and it is further

Ordered that MARCIA S. KASDAN comply with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with suspended attorneys; and it is further

Ordered that respondent reimburse the Ethics Financial Committee for appropriate administrative costs incurred in the prosecution of this matter.

Decision and Recommendation of the Disciplinary Review Board.

To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

These matters are before the Board based upon three presentments filed by the Districts IIA and IIB (Bergen County) Ethics Committees.

The Frumkin Matter

In May 1981, Israel Frumkin retained respondent to represent him in an action against his landlord for the return of the security deposit and the payment of damages in excess of $3,000.

Eager to determine the status of his case, Frumkin telephoned respondent's office twice a week between September and December 1981. Respondent rarely returned his telephone calls.

In early 1982, respondent informed Frumkin that a complaint had been filed. Thereafter, respondent forwarded interrogatories to Frumkin in April 1982, which Frumkin answered and returned within one day. Respondent, however, never furnished the answers to her adversary in the lawsuit. As a result, the complaint was dismissed on May 21, 1982. Respondent neither informed Frumkin of the dismissal of the complaint nor filed a motion for its reinstatement.

Between September 1982 and July 1983, respondent made numerous misrepresentations to Frumkin that trial dates had been scheduled and adjourned for various reasons. In early 1984, Frumkin took it upon himself to call the court to determine the status of the matter. He was advised, at that time, that his suit had been dismissed for failure to answer interrogatories. When confronted by Frumkin, respondent denied the dismissal and continued to insist that Frumkin would "get a check" very soon. As of the date of the ethics hearing on May

17, 1985, Frumkin had not received any monies representing a recovery from or a settlement of his lawsuit.

The presentment found that respondent's conduct in this matter had been unethical when she failed to respond to Frumkin's reasonable requests for information and when she misrepresented the status of the matter to him, by failing to advise him of its dismissal and by providing him with false trial dates.

Respondent also represented Frumkin, in 1983, in connection with the incorporation of a business and with the purchase of a condominium unit. In the incorporation matter, Frumkin complained that respondent had never delivered the corporate "kit" to him. The committee found that respondent's conduct had not been unethical because it constituted "common practice" and because there was no evidence that Frumkin had ever demanded the "kit."

With regard to the condominium purchase, it appears that Frumkin was to receive a $250 credit at the closing of title. Although Frumkin believed that he was to receive the $250 sum as a direct payment, the closing statement indicates that he received a credit in that amount. Accordingly, the committee found no evidence of wrongdoing on the part of respondent with respect to this transaction.

The Ploshchansky Matter

In July 1982, respondent was retained by Aida and Peisak Ploshchansky to represent them in connection with the purchase of a condominium unit. The purchase price was $130,000. A $90,000 loan was to be obtained either through a lending institution or by means of a purchase money mortgage held by the sellers. After the sellers' attorney prepared the contract of sale, respondent obtained the Ploshchanskys' signature thereon and forwarded a $13,000 deposit to the attorney. Pursuant to the terms of the contract, the transaction was to be contingent upon the Ploshchanskys' ability to obtain a conventional mortgage commitment from a mortgage lender in the amount of

$90,000. Alternatively, the contract provided for a purchase money mortgage by the sellers in the amount of $90,000.

The sellers, however, were unwilling to agree to either mortgage contingency clause. When their attorney returned the contract to respondent, both clauses had been stricken and initialed by the sellers. The attorney requested that the Ploshchanskys also initial the changes.

By letter dated October 22, 1982, respondent returned the contract to the attorney, informing him that it had been initialed by Mrs. Ploshchansky and that Mr. Ploshchansky had verbally approved the omission of the clauses. Respondent also changed the closing date from November 15 to November 30, 1982. Although respondent agreed to assist the Ploshchanskys in arranging for a mortgage, she did not submit an application on their behalf until late December 1982. On December 2, 1982, the sellers' attorney sent a time-of-the-essence letter for a December 10, 1982 closing. Respondent did not inform the Ploshchanskys of that closing date. After several closing dates had gone by, the sellers' attorney announced directly to Mrs. Ploshchansky that it was the sellers' intention to declare the contract null and void and to retain the deposit monies.

Understandably distressed by this significant development, the Ploshchanskys attempted to contact respondent on numerous occasions to determine the status of the transaction. Their calls were ignored. When they were finally able to reach respondent at her home, she told them "not to worry." Pursuant to respondent's testimony, she paid $750 to the sellers out of her own funds, presumably as an increase in the purchase price, in order to obtain their consent to the extension of the first time-of-the-essence closing date from December 10, 1982, to January 14, 1983.

Realizing the urgency of the matter, the Ploshchanskys retained new counsel, who commenced an action on April 5, 1983, to prevent a forfeiture of the deposit monies. On May 31, 1983, represented by new counsel, the Ploshchanskys took title to the

condominium unit at an increased price of $138,000, financed by a mortgage of $90,000 and by a purchase money mortgage from the sellers in the amount of $10,500. The $13,000 deposit was fully credited to them. Thereafter, the Ploshchanskys filed a malpractice action against ...

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