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Matter of Trueger

May 5, 1995

IN THE MATTER OF HOWARD C. TRUEGER, AN ATTORNEY AT LAW.


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

Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

IN THE MATTER OF HOWARD C. TRUEGER, An Attorney at Law (D-70-94)

Argued January 3, 1995 -- Decided May 5, 1995

PER CURIAM

Howard C. Trueger, a New Jersey attorney, was charged by formal complaint with misconduct in three matters. The District X Ethics Committee (DEC) found misconduct in each matter and recommended to the Disciplinary Review Board (DRB) that Trueger receive public discipline.

In the first of the three matters, Sackner, Trueger filed suit as requested by his client, Dr. Stanley Sackner, and the matter proceeded without incident for more than one year. Thereafter, Dr. Sackner began to have difficulty reaching Trueger by telephone and later learned that his suit had been dismissed after unopposed motions for summary judgment were granted against Dr. Sackner. Dr. Sackner also learned that actions that Trueger said had been taken in the litigation had never occurred.

The DRB, which conducted its own review of the record before the DEC, concluded that Trueger had grossly neglected the Sackner matter by failing to reply to the summary-judgment motions and by failing to seek to set aside those orders after their entry, in violation of RPC 1.1(a). It also concluded that Trueger had failed to keep Dr. Sackner informed of the status of his matter and to comply promptly with his requests for information, in violation of RPC 1.4(a). The DRB further found that Trueger had violated RPC 8.4(c) by engaging in a pattern of misrepresentation to Dr. Sackner and to his new attorney about the status of the matter. Finally, the DRB concluded that Trueger had violated RPC 8.1(b) by failing to cooperate with the DEC in its investigation of the matter.

The DRB, like the DEC, rejected Trueger's defense of psychiatric illness and noted that Trueger had admitted that he had been able to deal effectively with the business of other clients during this period.

In the second matter, Sprich, Trueger filed an answer and counterclaim on behalf of his clients, the Sprichs, but failed to provide timely answers to interrogatories or to oppose the motion to strike the answer and counterclaim for failure to answer interrogatories. Neither did Trueger respond to a subsequent motion for entry of final judgment by default after the answer and counterclaim were stricken. Final judgment by default was entered against his clients in the amount of approximately $62,000 plus costs.

Trueger filed an unsuccessful motion to vacate the default judgment and dismiss the complaint eighteen months later. Trueger and his firm ultimately assisted the clients in settling the litigation.

In the hearing before the DEC, the testimony of Trueger and Edward Sprich differed regarding the reasons that interrogatories had not been answered and regarding the scope of the legal representation. The DRB disagreed with the DEC's finding of unethical conduct in the handling of the Sprich matter, finding a lack of clear and convincing evidence, and recommended the dismissal of all charges except for that of violation of RPC 8.1(b). On that count, the DRB agreed that Trueger had failed to cooperate with the DEC in its investigation.

In the third matter, Inter-Tel, Trueger was retained by Inter-Tel, Inc. to perform collection services. Trueger performed the required services without complaint from Inter-Tel for one or two years, after which point a representative of Inter-Tel complained to Trueger about discrepancies in his status reports and apparent inactivity on several accounts.

Although Trueger responded to these concerns, the Inter-Tel representative did not consider them to be adequate and the relationship between Trueger and Inter-Tel ended. New counsel for Inter-Tel requested that Trueger forward the remaining files to him, together with substitutions of attorney and an accounting of amounts due to or collected on behalf of Inter-Tel. It took nearly five months for Trueger to comply fully with that request.

The DRB agreed with the DEC that Trueger had failed to keep Inter-Tel informed of the status of certain matters and had failed to respond to the client's requests for information, in violation of RPC 1.4(a). The DRB rejected the findings of the DEC that Trueger had behaved unethically in the manner in which he forwarded the files to the new attorney and provided an accounting to that attorney.

In its report to the Court, the DRB recommended that Trueger be suspended from the practice of law for a period of one year. The DRB also recommended that Trueger be required to submit proof of fitness to practice law prior to reinstatement and that he practice under the supervision of another attorney for a period of two years after reinstatement.

The DRB found no mitigating factors, rejecting the defense of a history of psychiatric problems as "incredible." The DRB found as aggravating factors that Trueger had cooperated with the DEC only after an application was made to the Court for his temporary suspension for lack of cooperation, and that Trueger has twice previously been disciplined for virtually identical misconduct.

HELD: Howard C. Trueger is suspended from the practice of law for a period of one year for gross neglect; failure to keep his clients reasonably informed about the status of matters and to comply promptly with requests for information; failure to respond to lawful demands for information by the disciplinary authorities; and for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

1. Trueger's false representations to Dr. Sackner and to his representative on three separate occasions are intolerable and the sort of conduct that undermines public confidence in the bar. (p. 18)

2. Although Trueger submitted a report of his treating psychiatrist that for several years he was under severe emotional stress that related directly to his difficulties in addressing all his responsibilities, there is no evidence that Trueger was ever out of touch with reality or unable to appreciate the ethical nature of his conduct. The Court, therefore, agrees that Trueger's psychiatric history does not excuse or mitigate his conduct. (pp. 18-19)

3. Trueger's failure to respond to the DEC's requests for information in its investigation and to answer the complaints filed against him until faced with an Order to Show Cause why he should not be temporarily suspended from practice is a flagrant violation of RPC 8.1(b). (p. 20)

4. Trueger's ethical history is another aggravating factor. He was privately reprimanded in 1978 and publicly reprimanded in 1983 for similar misconduct in a total of three matters. (pp. 20-21)

5. Although Trueger testified that he has taken steps in his practice to avoid future problems, he promised to implement similar changes after his public reprimand in 1983. Because of Trueger's repetitive misconduct and his failure to cooperate with the DEC, significant discipline -- a one-year suspension from practice-- is required. Also, Trueger must submit proof of fitness to practice law prior to reinstatement and must practice under supervision for two years on reinstatement. (pp. 21-22)

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in the Court's opinion.

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

PER CURIAM

This matter involves three formal complaints that charged respondent, Howard C. Trueger, with misconduct in three separate matters. The District X Ethics Committee (DEC) determined that respondent had committed misconduct in each matter, and recommended that respondent receive public discipline. The Disciplinary Review Board (DRB) found that the DEC's Conclusion that respondent had acted unethically was "fully supported by clear and convincing evidence." However, the DRB rejected some of the DEC's specific ...


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