The Disciplinary Review Board having filed a report with this Court recommending that RICHARD L. ROSENTHAL of MORRIS PLAINS, who was admitted to the bar of this State in 1965, be suspended from the practice of law for one year and that his reinstatement to the practice of law be conditioned by the requirement that he practice under a proctorship for one year, the Disciplinary Review Board's recommendation being based on its determination that respondent's conduct involved numerous ethical violations, among them: 1) incidents of gross negligence, 2) the display of a pattern of negligence, 3) the failure to seek the lawful objectives of his clients, 4) the failure to carry out contracts of employment, 5) the harm suffered by his clients, 6) the failure to communicate adequately with his clients, 7) misrepresentations to his clients, 8) the failure to refund a $1,500 retainer, and 9) the failure to cooperate in the ethics proceedings, the foregoing conduct being in violation of DR 6-101(A)(1) and (2), DR 7-101(A)(1), (2), (3), and, and DR 9-102(B)(4), and good cause appearing;
It is ORDERED that the findings and recommendations of the Disciplinary Review Board are hereby adopted, and RICHARD L. ROSENTHAL is suspended from the practice of law for a period of one year and until the further order of the Court, effective February 26, 1990; 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 RICHARD L. ROSENTHAL as an attorney at law of the State of New Jersey; and it is further
Ordered that respondent 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.
This matter is before the Board based upon a presentment filed by the District X (Morris County) Ethics Committee. The pertinent facts and conclusions on the three matters below, as found by the District X Ethics Committee and contained in its panel report, are as follows:
(a) Respondent's conduct clearly constituted gross negligence in handling the matter entrusted to him. Respondent stated that he filed a Complaint. The Grievant, Inal Gof, said that Respondent had indicated that he had indeed filed the Complaint, although Mr. Gof never saw or received a copy of this Complaint. Mr. Gof inquired about the status of his Complaint on numerous subsequent occasions. Respondent's reply each time was "We are still waiting for a trial date. Call me in a few weeks." Respondent asserts the Complaint was subsequently dismissed for lack of prosecution and never reinstated. Assuming Respondent filed a Complaint on behalf of Grievant, Respondent's failure to resist the dismissal of the Complaint or vacate it once entered, thereby allowing the Statute of Limitations to run, constitutes gross negligence. In re Goldstaub, 90 N.J. 1, 446 A.2d 1192 (1982).
(b) The conduct of Respondent constituted a failure to act with reasonable diligence and promptness. More than 5 months elapsed after the accident before Respondent requested money to institute the court proceedings. Respondent waited for more than 18 months from the time of the accident before requesting affidavits from the automobile shop. It is not clear when, if at all,
the Complaint was filed. For the next two years, Respondent indicated he was awaiting a trial date. Finally, more than 3 1/2 years after his accident, Mr. Gof was forced to ask Respondent for his file and to release him as his attorney due to his failure to act on the case. At that time, grievant learned the Statute of Limitations served as a bar to any recovery on his part. Because of Respondent's inaction, Mr. Gof is left with absolutely no means of recovery for the damage to his sister's automobile. Respondent clearly failed to act with reasonable diligence or promptness, thus leaving his client with no way of recovering for his automobile accident.
(c) Respondent failed to reasonably inform the client about the status of the matter and failed to promptly comply with reasonable requests for information. Respondent affirmatively indicated to Grievant that the case was being processed, when, in fact, nothing was being done. On many occasions over a period of several years, Respondent indicated that he was awaiting a trial date; however, his failure to prosecute eventually led to a dismissal of the case. At some point in time after the Complaint was dismissed, Respondent continued to inform Grievant that he was awaiting a trial date. This constitutes misrepresentation. Had Respondent kept his client reasonably informed about the status of the case, Mr. Gof could have looked for recovery from one of the insurance carriers prior to the running of the Statute of Limitations. Thus, Respondent clearly violated R.P.C. 1.4 by failing to keep his client reasonably informed about the status of the case and failing to comply promptly with requests for information.
Respondent attempted to bring up a defense of emotional stress during the hearing on April 6, 1987. Affirmative defenses may be brought pursuant to R.1:20-3(i) in order to mitigate the charges. However, since respondent never filed an Answer to the Complaint, he should not have been able to raise this defense. Even if this panel determined that Respondent could properly bring this defense to their attention during the hearing, whatever emotional distress the Respondent may have been under has not been established as a factor related to the representation of Grievant.
6. The Committee has carefully considered and reviewed the testimony and evidence and has concluded that respondent's conduct was clearly unethical in that his conduct constituted gross negligence, failure to act with reasonable diligence and promptness, and failure to keep a client reasonably informed about the status of the case and to comply promptly with requests for information.
(a) During April 1983, David Colon, Jr., the son of David Colon, the Grievant (who was then incarcerated at the Essex County Penitentiary since January 6, 1983), retained the services of the Respondent, giving him $1,500.00 in cash.
The Grievant had been sentenced by Judge Ronco in Essex County upon a guilty plea to two gambling indictments, numbers 480-75 and 31340-80, to two 180-day terms, on January 5, 1983. Respondent did not represent him in conjunction with the pleas or sentences, but rather was expressly retained, in the words of the undated receipt he wrote out and signed, "for a motion of reduction of sentence for David Colon, Sr." (CC2 in evidence). The Grievant had recently been sentenced on a guilty plea to another gambling indictment (number 1166-82F) by Judge Donatelli in Passaic County to a 3 year term, consecutive to that imposed in Essex County, imposed in March or April, 1983. Similarly, respondent did not represent Grievant in that matter either.
(b) Rule 3:21-10(a) states that with certain exceptions, noted in sub-part (b), none of which seems to apply, motions to reduce or change a sentence "shall be filed not later than 60 days after the date of the judgment of conviction." Such relief is not to be granted unless done so "by order entered within 75 days from the date of the judgment of conviction and not thereafter." Under Rule 1:3-4(c), enlargement of these time restraints are prohibited. The defendant need not be present for the decision on any such application. Rule 3:16. Respondent was retained for this purpose; and not retained for an appeal of the sentence nor an application for post-conviction relief. These rules are referred ...