On an order to show cause why respondent should not be disbarred or otherwise disciplined.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
This disciplinary proceeding arose from a complaint filed against respondent, Harry A. Delventhal, Jr. The District
Ethics Committee (DEC) found that respondent had acted unethically in seeking and obtaining an ex parte order dismissing a complaint for failure to answer interrogatories, despite alleged assurances to his adversary that he would await his response, and in using the dismissal order to obtain the release of funds held in escrow in connection with a writ of attachment. The DEC further concluded that respondent had not acted unethically in obtaining a second ex parte order of dismissal for failure to answer supplemental interrogatories in the same case. The Disciplinary Review Board (DRB) concluded that the evidence regarding the first ex parte application for an order of dismissal was ambiguous, and thus the record did not support a finding of ethical violation for that charge. With respect to respondent's withdrawal of the escrow funds, however, the DRB found that the DEC's findings of professional misconduct were supported by clear and convincing evidence. The DRB also agreed with the DEC that respondent had not acted improperly in obtaining the second order of dismissal.
A majority of the DRB recommended a public reprimand, one member voted for a private reprimand, and one member voted to dismiss the case. Our independent review of the record leads us to agree that respondent engaged in unethical conduct. In our view, however, a three-month suspension from the practice of law more appropriately reflects the seriousness of respondent's misconduct.
In February 1988, Wayne Batten signed a contract to sell his house. In April 1988, he hired respondent to represent him in connection with that sale, and to defend him in a breach-of-contract suit involving the renovation of real estate by a construction company in which Batten had been a partner. The grievant, A. Harold Kokes, was a member of the law firm of Loveland, Garrett, Russell & Young (Loveland, Garrett) and was responsible for the firm's representation of the plaintiffs in
the breach-of-contract action. In that action, Kokes had obtained a writ of attachment against Batten's real and personal property that was delaying the closing of title on Batten's house.
After agreeing to a lump-sum-fee arrangement with Batten, respondent moved to vacate the writ of attachment. In May 1988, the court signed an order directing that the closing on Batten's residence take place on the condition that the net proceeds, including $3,500 in legal fees to respondent, be held in an interest-bearing escrow account. The funds were to remain in escrow "until further order of this court," and the plaintiffs' writ of attachment was to otherwise "remain in full force and effect." On the same day, title closed on Batten's house and respondent placed the sum of $19,870.25 in escrow with the Title Company of New Jersey (TiCo). The escrow agreement provided that TiCo was to retain the funds until "receipt of court order directing payment."
In July 1988, respondent again moved to vacate the writ of attachment. The court denied the motion and ordered
that no monies shall be released from the * * * escrow account * * * until further order of this Court only after a duly filed Motion for release of funds for emergent purposes only * * * after Defendant, Wayne Batten, has demonstrated to the Court's satisfaction that he is gainfully employed or after a duly filed Motion by Harry A. Delventhal, Jr., Esquire * * * for release of attorney's fees, or under further order of this Court.
In late July 1988, respondent moved for release of certain monies from the escrow account. On July 29, 1988, the court ordered that TiCo make payments totalling $4,703.78, including $3,703.78 to pay two of Batten's debts and $1,000 to be paid to Delventhal. The court specifically ordered that TiCo make those payments "upon presentation * * * of a true copy of this order by Harry A. Delventhal, Jr., Esquire." Those funds were then withdrawn from the account.
In the meantime, respondent continued to represent Batten in the underlying lawsuit. In connection with that litigation, respondent served interrogatories on Kokes on July 7, 1988.
Pursuant to Rule 4:17-4(b), the answers were required on or before September 5, 1988. When respondent had not received the answers by September 9th, he wrote to Kokes:
Answers to Interrogatories, service [of] which [was] acknowledged by you on July 7, 1988, are now overdue. Be advised that unless I receive answers within the next five days, I shall be forced to file the appropriate motion.
Kokes received respondent's letter on September 12th and called him the following day to apologize for the late answers. He explained that there was a large volume of documents to compile and that Scott Schwarz, the principal plaintiff in the action, was a pilot who was away frequently during the sixty-day period. Although both Kokes and respondent agree that Kokes then told respondent that the answers would be forthcoming, they sharply disagree about the date on which Kokes promised to serve them. Respondent testified at the DEC hearing that Kokes promised to send them by the end of that week (September 16th). Kokes testified, however, that he told respondent that the "the earliest [he] could get him the answers would be the end of that week [September 16th], but the latest [he] would get them to him would be the following week." In the affidavit that he subsequently submitted with his motion to reinstate the complaint, Kokes specified that he had promised to send the answers by September 16th, and his file notes concerning the conversation indicated "answers end of week [September 16th] = o.k."
On September 20th, respondent applied ex parte for an order dismissing the complaint pursuant to Rule 4:23-5(a) on the basis that he had not received the answers that Kokes had promised.*fn1 On September 22nd, the court signed an order
dismissing the plaintiffs' complaint for failure to answer interrogatories. Kokes mailed the interrogatory answers to respondent the next day, September 23rd.
On September 27th, respondent wrote to Kokes, acknowledging receipt of the answers and enclosing a copy of the court's dismissal order. (Kokes testified that respondent did not include a copy of the supporting affidavit, as Rule 4:23-5(a) required, until October 31, 1988, after he had requested it from respondent.) In the letter respondent volunteered to sign a consent order vacating the dismissal order and reinstating the complaint. Respondent did not consult with his client before sending that letter.
On receiving respondent's letter, Kokes called him on September 28th or 29th to ask "what was going on." Kokes and respondent agree that respondent reassured Kokes in that conversation by again offering to sign a consent order to vacate the dismissal order. They disagree, however, concerning the content of their discussion about the escrow funds. Kokes testified that he had asked respondent if he planned to use the dismissal order to invade the account, and that respondent had told him that because Rule 4:23-5(a) allowed Kokes thirty ...