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Matter of Spagnoli

Decided: July 7, 1989.

IN THE MATTER OF JAMES SPAGNOLI, AN ATTORNEY AT LAW


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

For disbarment -- Justices Clifford, Handler, Pollock, Garibaldi and Stein. Justice O'Hern has filed a separate dissenting opinion. For suspension. O'Hern, J., dissenting.

Per Curiam

[115 NJ Page 505] This matter involves an attorney-disciplinary proceeding prompted by fifteen complaints filed against respondent, James V. Spagnoli. The complaints allege a pattern of neglect, gross negligence, a lack of due diligence in representation, failure to communicate with clients, and failure to return clients' files. The respondent is also charged with having made a misrepresentation to the court and with failure to cooperate in the disciplinary proceedings. Respondent's conduct, termed an "ethical violations spree" by the Disciplinary Review Board

(Board or DRB), prompted a five-member majority of the Board to recommend disbarment. Three members would have imposed a three-year suspension to be continued indefinitely until the respondent could demonstrate that he was fit to resume the practice of law. After a thorough and independent review of the record, we adopt the disposition recommended by a majority of the DRB.

I.

The facts as developed before the district ethics committee were fully and accurately summarized by the DRB. These facts relate in detail the circumstances surrounding the ethical violations.

" The Christoffersen Matter

"John E. Christoffersen ('Grievant') retained respondent in September or October 1984 to represent him in a matrimonial action, at which time he paid respondent a $1,500.00 retainer. On October 25, 1984, grievant signed a complaint for divorce. He requested respondent file the complaint immediately, but not have it served until grievant's return from vacation in December. On several occasions in the fall of 1984, respondent assured grievant that "everything was taken care of". On March 19, 1985, six months after he instructed respondent to file a complaint in his behalf, grievant was served with a divorce complaint filed by his wife. Respondent then agreed to file an answer and counterclaim and a pendente lite motion.

"On March 20, 1985, grievant was told that the answer and counterclaim and the motion had been filed. On May 19, 1985, a default judgment was entered against him. He discovered then that respondent had not filed any pleadings in his behalf. Between May 30, 1985, and June 21, 1985, grievant attempted to contact respondent by telephone, but his calls were not returned. On June 6, 1985, grievant sent respondent a telegram terminating his services. Grievant then retained new

counsel, who was successful in vacating the default. The Clients' Security Fund reimbursed to grievant the total retainer of $1,500.00.

" The Headley Matter

"Ruth Headley ('Grievant') retained respondent in August 1984 to represent her in connection with a potential interest in her ex-husband's pension benefits. On numerous occasions grievant attempted to contact respondent, without receiving a return phone call. Dissatisfied with respondent's representation, in August 1985, grievant requested that respondent return her file. Although she called respondent's office almost daily for a week, her calls remained unanswered. On a particular occasion, grievant was told that her file could not be returned to her, only to another attorney.

"In August 1985, grievant appeared at respondent's office, unannounced. She was told that she could not have the file because it had to be copied. After the presenter in this matter contacted respondent's office, grievant was informed that the file would be available at respondent's office. Once again, when she appeared at respondent's office, she was unable to secure her file. Although she wrote a letter to respondent on November 21, 1985, as of the date of the ethics hearing, January 27, 1986, respondent had not returned her file. When grievant consulted with new counsel, he would not agree to represent her without prior review of the file.

" The Kudla Matter

"Kathleen A. Kudla ('Grievant') paid respondent a $1,475.00 retainer on May 3, 1984, for representation in a divorce action filed by her husband in April 1984. Pursuant to respondent's testimony, he dictated an answer and counterclaim on June 15, 1984, having instructed his secretary to have the affidavit of verification and non-collusion signed and the documents properly filed with the court. On July 2, 1984, respondent acknowledged

service of the complaint for divorce against grievant. On August 20, 1984, respondent's adversary in the matter filed a request to enter default. On September 19, 1984, a default judgment was entered against grievant. The judgment provided that equitable distribution of assets had already been accomplished, pursuant to agreement by the parties. That was untrue.

"Upon discovering the judgment, grievant met with respondent, who informed her the court had apparently lost her file and he would have to make an application to set aside the default. Respondent testified he prepared a notice of motion and certification in November 1984, again delegating to his secretary the responsibility for the filing of the documents. Upon inquiries in October 1984, November 1984, and January 1985, grievant was informed by respondent that the papers had been filed. On March 3, 1985, upon reviewing the court file, grievant discovered the motion had not been filed. Accordingly, she wrote to the judge, requesting information about the status of her case. By letter dated April 3, 1985, the judge advised her a default had been entered against her. Pursuant to respondent's testimony, on April 27, 1985, he found the answer and counterclaim and the notice of motion in an unrelated file.

"On May 28, 1985, respondent was contacted by an attorney with whom grievant had consulted. Thereafter, respondent took no further steps to represent grievant. On July 22, 1985, respondent received a letter from yet another attorney, requesting grievant's retainer be returned, along with her file. When respondent did not return the file or the fee, the attorney was forced to file a motion seeking the return of both. The motion was granted. Although the court order provided for personal service upon respondent, service was made on a secretary in respondent's office. Respondent, however, admitted knowledge of its contents. As of September 22, 1985, he had not returned the file to grievant or her attorney, in spite of the court order. Grievant testified, also, that she had considerable difficulty in

reaching respondent throughout their professional relationship. Respondent did not return her telephone messages and cancelled 20 -- 25 appointments with her.

"Respondent's neglect of the matrimonial matter caused grievant financial injury. In one particular instance, because of respondent's inaction, she was forced to pay storage charges for a boat kept in a marina, which boat was an asset subject to equitable distribution.

" The Imes Matter

"Shirley Imes ('Grievant') retained respondent in late November or early December 1984 to represent her in a matrimonial matter. At that time, grievant informed respondent that she was in dire financial straits and instructed him to file a motion for support forthwith. Respondent assured her that the matter would be before the court within two weeks. From December 1984 through February 1985, grievant had considerable difficulty in contacting respondent. She was finally able to reach him in February 1985, at which time she was advised the motion would be heard in two weeks. Although a notice of motion was indeed filed on March 11, 1985, it was not heard until August 2, 1985, as a result of adjournments requested by respondent's adversary. On the return date, respondent failed to appear.

"By letter dated June 26, 1985, grievant advised respondent of her dissatisfaction with his representation and requested a refund of her retainer. Respondent ignored her request. Once again, in August 1985, grievant expressed her unhappiness and informed respondent that she was terminating his representation, having retained new counsel. In December 1985, she requested the return of her file. As of the date of the ethics hearing, April 1, 1986, the file had not been returned.

" The Burslem Matter

"In August 1985, Gloria Burslem ('Grievant') paid a $1,500.00 retainer to respondent for the preparation of a property settlement

agreement. In October 1985, when she inquired about the status of the matter, respondent informed her that the delay in the preparation of the agreement was the fault of her husband's attorney. He added he had written several letters to the attorney and had tried to call him several times, all to no avail. Between October 1985 and January 1986, grievant attempted to contact respondent, unsuccessfully. When she was finally able to reach him, she requested copies of the letters written to her husband's attorney. Respondent hung up on her. On February 18, 1986, grievant telephoned her husband's attorney. She discovered respondent had not contacted the attorney at all, with the exception of an initial letter written in August 1985.

"On April 23, 1986, grievant requested respondent send her file to her new attorney. When respondent ignored her request, the attorney interceded in her behalf. His efforts were also unavailing. Pursuant to grievant's testimony, respondent's inaction detrimentally affected her position with regard to the negotiation of the property settlement agreement.

" The Cook Matter

"In January 1986, Deborah Cook ('Grievant') paid respondent a $900.00 retainer for representation in certain post-judgment matrimonial matters and a bankruptcy case. Although another attorney in respondent's office eventually filed the bankruptcy petition, after a complaint by grievant, respondent never filed any pleadings in connection with her matrimonial matters. This notwithstanding, he misrepresented to grievant the papers had been filed and her ex-husband had been served.

"Beginning in May 1986, grievant asked respondent for the return of her file at least a dozen times. As of the date of the ethics hearing, November 14, 1986, respondent had not complied with her request, to grievant's financial detriment. Specifically, she was forced to work 18 to 25 hours a week ...


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