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In re Kivler

January 18, 2008

IN THE MATTER OF RUSSELL T. KIVLER, AN ATTORNEY AT LAW


SYLLABUS BY THE COURT

(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 this attorney disciplinary matter, the Court considers the appropriate level of discipline for an attorney with a history of discipline and failure to cooperate with investigating ethics authorities who fails to appear before the Court when ordered to show cause why he should not be disbarred or otherwise disciplined.

Respondent, Russell T. Kivler, was admitted to the practice of law in New Jersey in 1973. He first was disciplined in 2005, when the Court reprimanded him for gross neglect, failure to communicate with clients, and failure to supervise junior attorneys in his office. Kivler had urged in mitigation that he had sought treatment from a psychologist for stress created by his busy law practice. Among other conditions, the Court ordered Kivler to provide proof, as attested to by a mental health professional, of his fitness to practice law. When Kivler failed to do so within the time set by the Court, the Court temporarily suspended him from practice in October 2006. Kivler was reinstated to practice the next month after he complied with the Court's Order.

In a matter that was under investigation in 2005 when Kivler first was reprimanded, Kivler belatedly provided information to ethics investigators and although he asserted a defense to the grievance filed by his client and subsequently returned the full amount of a retainer paid by the client, he failed to file an answer to the formal ethics complaint served on him in January 2006. Kivler moved unsuccessfully before the Disciplinary Review Board (DRB) to vacate the default that was entered against him pursuant to Rule 1:20-4 (f) (2) based on his failure to file an answer to the complaint. As determined by the DRB, the Court reprimanded Kivler on December 5, 2006, for his failure to return the unearned retainer and to cooperate with the ethics investigators.

A third default matter for similar unethical conduct led the Court in January 2007 to suspend Kivler for a period of three months. In that matter, Kivler took a retainer from a client, but failed to perform any services for her; failed to respond to the efforts of the client to contact him; and failed to return any portion of the unearned retainer to the client despite requests that he do so. This conduct was found to be unethical, as was Kivler's failure to respond to the repeated requests of ethics investigators for information. As in the previous matter, the discipline that might have been imposed for Kivler's dealings with his client was enhanced by the aggravating factor of his failure to cooperate with the disciplinary authorities. The Court also ordered Kivler to return the unearned retainer to his client. Kivler has not done so.

The current matter before the Court, in which the DRB concluded that Kivler should be suspended from practice for a period of one year, is also a default proceeding because of Kivler's failure to file an answer to the December 2006 formal ethics complaint. The facts in the record certified to the DRB are deemed admitted pursuant to Rule 1:20-4 (f). On this record, the DRB found that Kivler failed to file a personal injury complaint for an elderly client, permitting the period of limitations to lapse; affirmatively misrepresented to the client that he had filed the complaint and blamed his staff for his inability to provide the client with a copy of the complaint or its docket number; when the client questioned why the court system had no record of her complaint, assured her that he would send her copies of all the papers he had prepared for her; and failed to respond to any further contacts she initiated with him from her home in Georgia.

The DRB concluded that Kivler's conduct amounted to gross neglect; a pattern of neglect when combined with the neglect in the previous matters; failure to keep the client informed about the status of the matter and to communicate with her; misrepresentation; and failure to cooperate with the ethics authorities. Eight members voted to suspend Kivler for one year; one member voted for disbarrment. After the DRB filed its decision with the Court, the Court ordered Kivler to show cause on November 27, 2007, why he should not be disbarred or otherwise disciplined. The Court set a briefing schedule and ordered that Kivler remain suspended under its January 2007 Order. Kivler did not file a brief and neither he nor anyone on his behalf communicated with the Court or appeared on the return date of the Order to Show Cause.

HELD: For his unethical conduct, his history of discipline and disregard for the attorney disciplinary system, and his unexcused failure to appear on the Court's Order to Show Cause, Russell T. Kivler is suspended from the practice of law for a period of three years and until he complies with conditions imposed by the Court.

1. In this matter, the fourth in which Kivler has defaulted, Kivler's misconduct includes gross neglect (RPC 1.1 (a)), failure to communicate with a client (RPC 1.4 (a)), and deceit and misrepresentation (RPC 8.4 (c)). The gross neglect in this matter, combined with the same unethical conduct in previous matters, amounts to a pattern of neglect (RPC 1.1 (b)). Kivler's failure to cooperate with the ethics authorities by not responding to requests for information and by not filing an answer to the formal complaint violates RPC 8.1 (b). (pp. 10-12).

2. Kivler's history of discipline and his failure to cooperate with the ethics authorities call for an elevation in the level of discipline to be imposed. Recently, the Court disbarred an attorney who committed serious infractions, had a history of discipline, failed to cooperate with the ethics authorities, and failed to appear before the Court when ordered to show cause why he should not be disbarred or otherwise disciplined. In re Kantor, 180 N. J. 226, 233 (2004). (pp. 12-13).

3. The complaints about Kivler's misconduct seem to have arisen during a single time frame, in which the incidents and grievances overlap. Kivler's record is not one of long-standing ethical lapses nor one on which the Court can fairly conclude that he has refused to improve his behavior following the previous imposition of discipline. The risk to the public presented by continued unrepentant behavior and a clear demonstration of unfitness that in Kantor mandated disbarrment, is not present here. Still, Kivler's failure to comply with Orders of this Court, most significantly the Order to Show Cause, and his failure to cooperate with the entities at various levels of the ethics process demonstrate a serious lack of regard for the disciplinary process and the Court. (pp.13-14).

4. The one-year suspension from practice that would have been appropriate based on the record considered by the DRB is inadequate when the record of Kivler's separate failings before the Supreme Court is considered as well. A respondent is required to comply with a Supreme Court Order to Show Cause. Absent a significant and compelling excuse for the failure to appear, the Court will consider the failure to appear a serious aspect of the record and may, on that basis alone, increase the level of discipline. In Kivler's case, a three-year period of suspension, with reinstatement to practice conditioned on compliance with the January 2007 retainer-reimbursement Order and a demonstration of fitness to practice, is appropriate. (pp.14-15).

The decision of the Disciplinary Review Board is AFFIRMED as MODIFIED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and WALLACE join in JUSTICE HOENS' opinion. JUSTICE RIVERA-SOTO did not participate.

The opinion of the court was delivered by: Justice Hoens

Argued November 27, 2007

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


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