The opinion of the court was delivered by: Per Curiam
Argued September 28, 1998
On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
This attorney discipline matter arises from a Report and Recommendation of the Disciplinary Review Board (DRB) that respondent be publicly reprimanded. Three members of the DRB concluded that a public reprimand would be insufficient discipline and recommended a three-month suspension. The majority recommendation is based on findings of the District VB Ethics Committee (DEC), concurred in by the DRB, that respondent had been guilty of gross neglect, a violation of RPC 1.1(a), and a lack of diligence, a violation of RPC 1.3. The misconduct involved the failure to file a timely answer to a complaint against his clients and his subsequent failure to act with necessary diligence to vacate a default entered on the complaint. Respondent also failed to communicate with his clients in a timely manner and misrepresented the status of the matter.
Respondent does not deny the essential facts but asserts that the conduct resulted from a misunderstanding that his adversary had withdrawn the complaint and his failure to have received notice of the proposed default judgment. Respondent contends that the Court should not follow the DRB's recommendation that he be publicly reprimanded.
Based on our independent review of the record, we find clear and convincing evidence that respondent engaged in conduct proscribed by RPC 1.1(a) and RPC 1.3, and that a public reprimand is warranted.
The matter involves respondent's representation of Robert Palceski and his wife Janet, who owned a company against which a former employee threatened to file an employment-practices claim. The disgruntled employee had hired an attorney in 1992. Respondent told that attorney that if the employee sued, the employer would file a counterclaim based on alleged financial improprieties engaged in by the employee. That attorney did not file an action. The employee hired a new attorney.
In January 1993, the new attorney served a summons and complaint on the employer. The employer retained respondent again. After some modification of the documents, respondent obtained a stipulation to extend the time for filing an answer to the complaint.
Respondent never filed the stipulation or the answer and counterclaim. Although he testified that his conversation with the employee's attorney led him to believe that she would voluntarily dismiss the matter, the adversary testified that she had never made such a statement because her client was "adamant" about pursuing the claim. Meanwhile, respondent had told the Palceskis that he had filed the answering papers and that, because he had heard nothing further from opposing counsel, the case would just "go away."
The employee's attorney said that she called respondent several times and left a number of messages on his answering machine between March and May 1993 to determine whether respondent intended to file an answer to the complaint. She eventually learned by calling the court that respondent had never filed an answer on behalf of his client.
In May 1993, the employee's attorney obtained an order entering default. Her transmittal letter to the court and an affidavit of service prepared by her secretary indicated that the request for entry of default and a copy of the proposed default order had been sent to respondent by regular mail. Respondent denied receiving them.
The court entered a default judgment against the employer for $1.7 million in September 1993. A court officer seized the trucks, tools and bank accounts of the employer. A constable sought to seize the personal cars and other assets of the Palceskis.
Robert Palceski telephoned respondent while the constable was at his home. Respondent assured him that he would go to court the next day to have their assets returned to them. He went to the Palceskis' home that evening to obtain copies of the papers served on them to prepare an emergent motion to vacate the default and assured them that he was working on the motion. The Palceskis asked for a copy of the motion, but respondent "put them off." It was only when Robert Palceski threatened to drive to respondent's office to pick up a copy of the motion that respondent agreed to fax him a copy. The faxed copy consisted of fourteen blank pages. When later asked about the blank pages, respondent stated that he might have put the pages in the machine backwards or improperly transmitted the document.
When respondent went to court two days later, he was only able to obtain the release of the Palceskis' trucks and tools. (Respondent contends that the default judgment improperly included a business entity not named in the original complaint.) Although respondent filed a later motion to vacate the default in full, the trial court held that respondent's papers were ...