On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For disbarment -- Justice Clifford. Clifford, J., dissenting.
[118 NJ Page 163] This disciplinary proceeding arises out of a presentment filed by the District IV Ethics Committee (DEC), which concluded that respondent had committed unethical conduct. The Disciplinary
Review Board (DRB) agreed that respondent engaged in unethical conduct that violated DR 1-102(A)(4), DR 1-102(A)(5), DR 7-102(A)(5), and DR 7-102(A)(6).*fn1 The DRB unanimously recommended that respondent be suspended from the practice of law for one year.
Respondent was admitted to the bar in 1959. He has not been the subject of prior discipline. Throughout his career his practice consisted primarily of personal-injury litigation on behalf of both plaintiffs and defendants.
This disciplinary matter concerns respondent's conduct with respect to a personal injury action brought on his own behalf. The suit arose from a visit respondent, his wife Sylvia, and teenage son made on April 27, 1980, to a casino in Atlantic City. The Lunns had dinner at one of the casino's restaurants and walked around the casino. Respondent alleges that while leaving the casino, he sustained personal injuries when an escalator to the parking garage came to a sudden and unexpected stop. Another passenger, J.F., also claimed injury as a result of the sudden stop. The casino did not make a record of the accident and neither party reported the accident to the casino.
Mrs. Lunn died in August of 1980. By letter dated April 2, 1982, respondent wrote to the casino's insurance company and enclosed a handwritten statement that he referred to "as a statement of my wife Sylvia P. Lunn which sets forth basically how the incident occurred."
On April 22, 1982, respondent filed a suit in Superior Court against the casino and the manufacturer of the escalator,
claiming damages for his injuries from the escalator incident. He also filed suit on behalf of J.F. and her husband. Respondent later withdrew as counsel for J.F. and also obtained counsel for himself.
In the course of the litigation respondent answered interrogatories propounded of him by the defendants. He responded to question twenty-one, which inquired whether he had obtained any statements concerning the incident, as follows: "Yes. Statement from my wife and son have been supplied to defendants' insurance company and I assume defendants." Respondent certified that the statements made in answer to the attached interrogatories were true.
As the DRB accurately sets forth in its Decision and Recommendation, respondent was asked at least five times during his deposition about the statement purportedly signed by his wife:
Respondent first identified his handwritten statement as follows:
A. Yes, this appears to be the statement of information that my wife supplied and, you know, I think that your insurance company got it.
Q. The Exhibit W-1 is a statement of April 30, 1980 by Sylvia P. Lunn; is that correct?
A. To the best of my knowledge.
Later, in response to specific questions, respondent testified that he could picture his wife sitting at the dining room table and writing out another statement. Id. at 62. Subsequently, the following occurred:
Q. Mr. Lunn, what's been marked W-1, that is your wife's statement --
Q. She wrote that out; is that correct?
Thereafter, on page 132 of Exhibits EC-10 in Evidence, the following occurs:
Q. -- now, sir, after this incident, two statements were prepared by your wife and your son. Is that true, sir?
A. Yes, because, as I mentioned previously, when -- well, you know, I knew that I -- I thought that somebody would probably contact me from Bally. . . .
Q. Okay. Let me ask you first about W-1, which is a two page document. Did Sylvia herself write that out, sir, physically write it out? [or] did she dictate that to somebody or did she tell somebody else and they wrote it down. Did she physically write that?
A. Well, to the best of my recollection, you know, as I've indicated to you, this was written, signed by my wife in our dining room after we discussed, you know, preparing some sort of a memo or statement or whatever concerning this incident.
Q. Okay. Whose idea was it to prepare such memos?
Q. Let me ask you this: you, of course, were married to your wife for a great number of years. Are you ...