The opinion of the court was delivered by: Per Curiam.
On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
This attorney discipline proceeding arises from a complaint filed by the District XIII Ethics Committee (DEC) against respondent Robert J. Forrest. The DEC issued a report, finding that respondent had engaged in unethical conduct warranting a public reprimand. The matter proceeded to a hearing before the Disciplinary Review Board (DRB). The DRB found that respondent had failed to disclose a material fact to a tribunal, obstructed a party's access to evidence of potential value, and engaged in conduct involving deceit, dishonesty and misrepresentation. The DRB recommended that respondent be suspended from the practice of law for three months, thereby rejecting the DEC's recommendation that respondent be reprimanded.
In 1984, respondent was admitted to the New Jersey bar. At the time the ethics complaint was filed, respondent practiced with the law firm of Lieberman & Ryan in Somerville. In March 1993, Robert and Mary Ann Fennimore, husband and wife, retained Lieberman & Ryan to represent them in a personal injury action resulting from a car accident in which the Fennimores' car had been hit by another vehicle. The Fennimores, both of whom were in the car at the time of the accident, sought to recover from the driver of the other car. Mr. Fennimore claimed that as a result of the accident he suffered a rotator cuff tear, limitation of movement in his right ring finger, limitation of strength in his left shoulder, chronic cervical strain, and headaches. He further claimed that all of his injuries were "permanent." The scope of Mrs. Fennimore's injuries is not reflected by the record.
On April 5, 1993, Lieberman & Ryan filed a complaint against the driver of the other car on behalf of the Fennimores. Respondent was assigned to work on the Fennimores' file.
Mr. Fennimore died sometime between April 1993 and December 1993, for reasons unrelated to the car accident. (The record does not indicate the specific date of death.) Mrs. Fennimore notified respondent of her husband's death.
In December 1993, respondent, knowing of Mr. Fennimore's death, served unsigned answers to interrogatories, entitled "Plaintiff Robert A. Fennimore's Answers to Defendant's . . . Interrogatories," on his adversary, Christopher Walls, Esq. Neither the answers nor the cover letter indicated that Mr. Fennimore had died.
On June 8, 1994, respondent and Mrs. Fennimore appeared at an arbitration proceeding apparently conducted pursuant to Rule 4:21A (mandating arbitration in automobile negligence actions with amount in controversy less than $15,000 and other personal injury actions with amount in controversy less than $20,000). Before the proceeding, respondent advised Mrs. Fennimore that when she testified she should not voluntarily reveal her husband's death. When the arbitrator inquired about Mr. Fennimore's absence, respondent replied that Mr. Fennimore was "unavailable." The arbitrator awarded $17,500 to Mrs. Fennimore and $6000 to Mr. Fennimore. At no time before, during, or after the arbitration proceeding did respondent or Mrs. Fennimore inform the arbitrator that Mr. Fennimore had died.
After the arbitration, respondent contacted Walls to discuss a possible settlement. Again, respondent did not inform Walls of Mr. Fennimore's death.
From January to August 1994, Walls propounded several requests on respondent to produce Mr. Fennimore for a medical examination, but respondent did not reply to those requests. Consequently, Walls filed a motion with the trial court to compel Mr. Fennimore to appear for a medical examination. Respondent did not oppose or otherwise reply to the motion, and the court entered an order on September 9, 1994, that directed Mr. Fennimore to submit to a medical examination on October 4, 1994. After the order was entered, respondent did not disclose Mr. Fennimore's death but nevertheless contacted Walls to further discuss settlement. Only when Mr. Fennimore failed to appear for the court- ordered medical examination did respondent inform Walls of Mr. Fennimore's death.
The DEC found respondent's conduct in handling the Fennimore matter to be unethical and concluded that respondent violated certain Rules of Professional Conduct (RPCs), specifically RPC 3.3(a)(5) (failure to disclose material fact to tribunal), RPC 3.4(a) (obstructing party's access to evidence of potential evidentiary value), and RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). The DEC recommended that respondent be publicly reprimanded.
In December 1997, the DRB held a hearing in the matter, at which respondent waived his appearance. The DRB issued its decision in June 1998, and concluded that respondent's conduct warranted a three-month suspension. We denied respondent's petition for review of the DRB's decision.
Respondent appears before this Court on an order to show cause why he should not be disbarred or otherwise disciplined. Respondent admits that he acted imprudently when he failed to disclose Mr. Fennimore's death to the court, the arbitrator, and opposing counsel. Respondent argues, however, that certain circumstances mitigate his conduct. Specifically, respondent contends that he acted out of a desire to enhance the recovery for his clients and always had his clients' best interests in mind; that he made no misrepresentations throughout the Fennimore matter but merely withheld certain information, a negotiation technique he describes as "bluffing" and "puffing"; and that he did not ...