(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).
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.
SUPREME COURT OF NEW JERSEY
D-
70 September Term 1994
IN THE MATTER OF
HOWARD C. TRUEGER,
An Attorney at Law.
Argued January 3, 1995 -- Decided May 5, 1995
On an Order to show cause why respondent
should not be disbarred or otherwise
disciplined.
Walton W. Kingsbery, III, Deputy Ethics
Counsel, argued the cause on behalf of Office
of Attorney Ethics.
Donald R. Belsole argued the cause for
respondent (Roy E. Kurnos, attorney).
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 findings of ethical violations. The DRB
unanimously recommended that respondent be suspended from the
practice of law for one year.
In its Decision and Recommendation, the DRB summarized the relevant facts in each of the three matters based on the evidence presented at the hearings held before the DEC.
The DRB first delineated the factual background of the Sackner matter:
In or about April 1988, respondent was retained by Dr. Stanley Sackner to bring suit to enforce a Florida judgment and to recover damages from defendants in a case pending in the Superior Court of New Jersey. At the time he was retained, respondent already had been representing several other plaintiffs to enforce similar claims against the same defendants. Dr. Sackner paid respondent a $5,000 retainer. Respondent filed an amended complaint naming Dr. Sackner as an additional plaintiff. At some point during 1988 or 1989, Dr. Sackner met with some other plaintiffs at respondent's office to discuss recovery strategy. Thereafter, in December 1989, Dr. Sackner spoke with respondent regarding the progress of his case and learned that respondent's father had passed away. Apparently, respondent's father had fallen ill in January 1989, and ultimately died in July of that year. During their December 1989 conversation, respondent expressed remorse to Dr. Sackner over his father's death and told Dr. Sackner of the effect his father had on his life.
Dr. Sackner testified that, after that conversation, "things weren't progressing well with the case." He was not able to get much information on the case and had difficulty getting in touch with respondent. In addition, on one occasion when he was able to speak with respondent, the information obtained was false. Specifically, Dr. Sackner spoke with respondent in March 1990 and learned from respondent that the judge
assigned to hear his matter had ordered the
deposition of one of the defendants. He
again telephoned respondent in late April,
but was unable to speak with him. He,
therefore, spoke to a secretary in
respondent's office and asked whether the
defendant's deposition had occurred. The
secretary advised him that there was no
record of the defendant's deposition having
ever been scheduled. Dr. Sackner then called
an attorney friend of his, James Gardner,
who, on several prior occasions, had
contacted respondent in Dr. Sackner's behalf
to inquire about the status of his matter.
He had done this at Dr. Sackner's specific
requests because respondent had not returned
many of Dr. Sackner's telephone calls. On
one of the occasions that Gardner spoke with
respondent, respondent advised him that he
had filed a summary judgment motion to set
aside an alleged fraudulent transfer made by
one of the defendants to the other. Incident
thereto, according to respondent, the judge
had ordered the defendant's deposition in
order to resolve certain factual issues.
Respondent further advised Gardner that the
deposition was about to be scheduled or had
been scheduled.
At some point after Dr. Sackner learned that the deposition of the defendant had never been scheduled, Gardner himself investigated the status of Dr. Sackner's case. Since respondent did not return any of Gardner's telephone calls to him, Gardner called the Morris County Clerk's Office on May 17, 1990 and learned that the last docket entry on the matter was an order of dismissal. Gardner immediately drove to the clerk's office to personally review the file. He found that orders of summary judgment had been entered in behalf of both defendants on April 3, 1989 and May 16, 1989. He further found that the orders contained language indicating that they were entered without opposition. The file contained no evidence of any motion for summary judgment to set aside the allegedly fraudulent transfer ever having been filed by respondent in Dr. Sackner's behalf. In fact, there was no activity reflected on the court file since
the entry of the orders granting summary
judgment in favor of the defendants.
After discovering the true status of Dr.
Sackner's claim, Gardner immediately
telephoned Dr. Sackner, who asked him to
assume the handling of the matter in his
behalf. Gardner then telephoned respondent
and advised him of his discovery. Respondent
expressed surprise and denied ever having
received notice of the motions for summary
judgment. Gardner, therefore, advised
respondent that he would be filing a motion
to set aside the judgments and that
respondent should send him both a
substitution of attorney and an affidavit
about the lack of notice of the motions for
summary judgment. Though respondent promised
to both call Gardner the following Monday and
to send the above documents, he did neither.
Gardner subsequently called the defendants'
attorney and learned that he had in his
possession proof of respondent's receipt in
the form of signed certified receipt cards.
Ultimately, Dr. Sackner's case was re-opened and resulted in a small settlement
($30,000) in his behalf. While Dr. Sackner's
original claim for relief was substantially
higher ($275,000) than the amount for which
the claim was settled, Gardner testified that
respondent's failure to file a motion to set
aside the allegedly fraudulent transfer
between the defendants had not adversely
affected or prejudiced that settlement.
At some point, Dr. Sackner filed a
malpractice suit against respondent.
Respondent subsequently entered into a
settlement agreement, requiring him to pay
Dr. Sackner's legal fees for Gardner's
efforts to set aside the judgments entered in
favor of the defendants. However, at the
time of the DEC hearing, respondent had
fallen behind on his payments to Gardner.
In addition, the complaint in the Sackner matter charged
respondent with a violation of RPC 8.1(b), for failing to
cooperate with the DEC. The evidence demonstrated that
respondent had failed to reply to the DEC investigator's multiple
requests for information on at least six occasions between
September 1991 and July 1992. As a result, in July 1992, the
Office of Attorney Ethics (OAE) filed an Order to Show Cause why
respondent should not be temporarily suspended for failing to
cooperate, and this Court sanctioned respondent in October 1992.
Respondent essentially admitted all of the factual
allegations underlying the ethics complaint. However, he
challenged their legal effect by asserting what he believed to be
mitigating circumstances. He testified that he had failed to
respond to the summary-judgment motions because at the time he
had been experiencing psychiatric problems, which had been
exacerbated by his father's terminal illness. Respondent noted
that when he had received the motions he had intended to object
to them, but had failed to do so because of the time he had been
spending with his father on a daily basis and the support he had
been providing to both his mother and his younger sister.
However, respondent admitted that he had represented other
clients diligently during that same period.
Respondent testified that he had lied to Dr. Sackner and Mr.
Gardner because he had been embarrassed by his initial neglect
and he had intended to file a motion to vacate the judgments. He
explained that he had not asked any of his three associates to
handle the matter because he had been too embarrassed and ashamed
to do so. Similarly, respondent attributed his failure to
respond to any of the DEC's requests for information to his
embarrassment.
In support of his claim of psychological impairment,
respondent submitted a report from his treating psychiatrist,
Philip M. Werner, dated April 5, 1993. That report indicated
that respondent had been a patient of Dr. Werner since 1985, and
that from 1989 through the end of 1992, respondent "was under
severe emotional stress that clearly was causally related to his
difficulties responding to all of his responsibilities."
Nevertheless, Dr. Werner found that respondent "seems to have
recovered to more than a sufficient degree to allow him to
perform in a professional and timely manner."
As of March 29, 1993, the date of the DEC hearing,
respondent was taking Prozac, an antidepressant, and Valium, a
sedative. Respondent testified that the "right combination of
dosage and frequency" of those medications had modified his level
of depression and anger, which enabled him to "grapple with not
winning every case." Furthermore, respondent testified that he
had hired a senior associate to ensure that the type of problem
presented by Dr. Sackner's case would not reoccur and that he had
become more comfortable with delegating responsibility.
The DRB next summarized the relevant facts in the Sprich matter:
Respondent was retained by Edward and Carrie Sprich, on June 10, 1985, to defend
them and to file a counterclaim in their
behalf in a matter then pending in the Law
Division, in Morris County. [T & J Custom
Builders, Inc. filed the complaint against
the Spriches.] Respondent filed an answer
and a counterclaim on July 2, 1985.
Thereafter, on August 5, 1985, the attorney
for the plaintiff (defendant on the
counterclaim) propounded interrogatories on
respondent. Respondent acknowledged receipt
of the interrogatories on August 6, 1985.
Pursuant to the Rules of Court, answers to
those interrogatories would have been due
within sixty days. On November 12, 1985,
plaintiff's counsel wrote to respondent to
remind him that the interrogatory answers
were overdue and to find out when the answers
would be forthcoming. Respondent wrote to
plaintiff's counsel, on November 18, 1985, to
advise that he expected to have the answers
within the next two weeks. On January 17,
198[6], when plaintiff's counsel did not
receive the long-overdue interrogatory
answers, he again wrote to respondent. That
letter followed two previous telephone
conversations with respondent, on January 2
and January 14, 1986, during which respondent
promised to forward the interrogatory
answers.
Thereafter, on or about February 5,
1986, plaintiff's counsel served respondent
with a motion to strike the Spriches' answer
and counterclaim for failure to serve answers
to interrogatories. That motion was
returnable on February 28, 1986. Respondent
neither served answers to interrogatories nor
opposed or otherwise replied to plaintiff's
motion. On April 11, 1986, an order was
entered striking the Spriches' answer and
counterclaim for failure to serve answers to
interrogatories. Thereafter, on June 23,
1986, plaintiff's attorney filed a motion,
returnable on July 3, 1986, requesting entry
of final judgment by default against the
Spriches. Although that motion was addressed
to and served upon respondent, he did not
reply to the motion. On July 30, 1986, final
judgment by default was entered against the
Spriches, in the amount of $61,694.32 plus
costs.
Approximately eighteen months later, on
January 22, 1988, respondent filed a motion
to vacate the default judgment and to dismiss
the complaint. In support of that motion,
respondent asserted that the indebtedness,
which formed the basis of plaintiff's
complaint, was void and unenforceable under
the provisions of the Secondary Mortgage Law
Act. In his brief, respondent acknowledged
that his clients had failed to answer
interrogatories. Respondent's motion, which
was opposed by plaintiff's counsel, was
denied on March 29, 1988. Subsequently,
plaintiff's counsel made routine collection
efforts, which included taking an assets
deposition of the Spriches on March 8, 1989.
Respondent attended that deposition as the
Spriches' counsel. Ultimately, respondent
was discharged as counsel, after his firm
assisted the Spriches in entering into a
settlement agreement with the plaintiffs.
The complaint in the Sprich matter also charged respondent
with failing to cooperate with the DEC, in violation of RPC
8.1(b). The evidence demonstrated that the DEC had notified
respondent of the charges in September 1991, but he had failed to
cooperate until approximately one year later, when he faced an
impending sanction from this Court.
Respondent essentially admitted all of the allegations in
the complaint, but maintained that his decision not to oppose the
various motions had been justified. He testified that he really
had no defense to the motion to strike the Spriches' pleadings
because they had never fully cooperated in providing answers to
interrogatories. Respondent stated that although Mr. Sprich had
answered some of the interrogatories, he had left respondent to
answer the remainder by retrieving information from "unorganized"
files, checks, and bills. Respondent maintained that he had had
several conversations with Mr. Sprich about the necessity of
completing the interrogatories and that Mr. Sprich repeatedly had
promised to "get [him] the information." Although the Spriches
had provided respondent with "draft" answers to the
interrogatories, respondent testified that he had never received
sufficient information to complete fully the interrogatories.
In support of his assertion that his clients had not
cooperated with him to complete the interrogatories, respondent
produced a letter he had written to Mr. Sprich, dated September
30, 1985. In that letter, respondent reminded his client that he
had failed to appear at respondent's office two weeks earlier to
answer interrogatories and had failed to pay additional sums
towards his retainer. The letter also stated that respondent had
"withheld actively being involved in this case based upon [Mr.
Sprich's] failure to meet [his] financial obligations to
[respondent's] office." The letter advised Mr. Sprich that it
was "time for this matter to either be aggressively attended to
or abandoned."
Moreover, respondent testified that he had not opposed the
motion to strike the pleadings because Mr. Sprich essentially had
lost interest in the matter. According to respondent, he advised
Mr. Sprich of the pending motion during a face-to-face
conversation, and urged him to make further payments towards
respondent's retainer from the settlement proceeds of another
case respondent had handled for him. Respondent testified that
Mr. Sprich had declined to make any further payments out of the
settlement proceeds, and had advised respondent to "put [the
case] over" to "buy [him] time." Respondent believed that he had
the motion adjourned once, although he had no documentation to
support that contention.
Finally, respondent testified that he had not opposed the
motion for entry of a default judgment because the Spriches
basically had lacked any defense to plaintiff's suit. That was
so, he asserted, because he had learned from plaintiff's attorney
that years before, in 1980, the Spriches had executed a release
in favor of plaintiff.
Although respondent and Mr. Sprich disagreed about whether
respondent had advised Mr. Sprich that a motion to strike the
pleadings had been filed, both agreed that respondent had
notified Mr. Sprich that a default judgment had been entered.
When the Appellate Division later issued an opinion in an
unrelated matter that supported the Spriches' original defense
and counterclaim, respondent filed the motion to set aside the
default judgment, which was denied.
While the original ethics complaint contained no such
allegations, the complaint was amended at the DEC hearing to
allege that respondent had failed to file an appeal of the denial
of the motion to set aside the default judgment. The answer was
similarly amended to deny that respondent had been retained to
file an appeal. Essentially, Mr. Sprich testified that he had
retained respondent to appeal the denial of that motion. In
support of his assertion, he produced a canceled check dated May
2, 1988, payable to respondent, in the amount of $325.00. "D.P.
T & J Appeal" was written in the memo portion of that check,
apparently indicating Mr. Sprich's intention to make a down
payment for the appeal. Mr. Sprich testified that he had
personally handed that check to respondent in his office.
Respondent maintained that although the check had been
endorsed by someone in respondent's name and had been deposited
into his account, he did not endorse the check and, in fact,
could not recall seeing it. Respondent believed that his
bookkeeper had endorsed the check. He testified that had he
received or seen that check, he would not have accepted it, given
the fact that the amount would not even cover the costs
associated with filing the notice of appeal, much less any fee,
and that it was apparently tendered only ten days before the time
to appeal would expire.
We note that in the subsequent deposition of the Spriches,
Mr. Sprich did not deny or otherwise react to plaintiff's
attorney's statement to him that no appeal of the denial of the
motion to set aside the default judgment had been filed and that
the time to do so had expired. Furthermore, despite Mr. Sprich's
claim that respondent had failed to file an appeal in his behalf,
he continued to employ respondent's services, or those of
respondent's firm, throughout the post-judgment proceedings,
which included not only the assets deposition, but also a motion
for a wage execution and, ultimately, a settlement agreement.
Finally, the DRB summarized the relevant facts in the Inter-Tel matter:
Sometime in 1989 or 1990, respondent was retained by Barry Wichansky, Vice-President of Inter-Tel, Inc., to perform collection services. No written retainer agreement was executed or prepared, despite the fact that respondent agreed to provide services on a contingency basis. Specifically, respondent would work on a contingency fee of twenty-five percent of the amount collected. While the presenter took the position that respondent's failure to enter into a written fee agreement certainly caused the client some confusion as to its responsibilities (for example, respondent and Mr. Wichansky disagreed on the nature and extent of Inter-Tel's obligation to reimburse respondent for costs), the presenter specifically excluded from the complaint any allegation of a violation of RPC 1.5(c), because he believed that the issue should more properly be presented to a fee arbitration committee.
In any event, in connection with his representation, respondent prepared and forwarded to Inter-Tel monthly status reports that essentially summarized the status of collection efforts on specific accounts. Respondent's services were apparently satisfactory to Inter-Tel until August 1991, when Mr. Wichansky's assistant, Nancy Bialos, complained to respondent of discrepancies in the status reports, as well as the apparent inactivity of several accounts for several months. Ms. Bialos wrote to respondent on several occasions, between August and November 1991, and raised specific questions on several accounts. Ms. Bialos received no response to any of those letters until January 30, 1992. On that date, respondent's associate wrote to Ms. Bialos and advised her of certain cases that had been closed and the reason therefor. Ms. Bialos apparently did not consider that letter to be completely responsive to her earlier inquiries. She, therefor, wrote to respondent's associate on March 19, 1992, again asking for responses to
her earlier letters to respondent.
Thereafter, additional correspondence ensued
from Ms. Bialos and Mr. Wichansky to
respondent, requesting essentially the same
information as that previously requested by
Ms. Bialos on several prior occasions.
While it is not clear whether Mr.
Wichansky discharged respondent or whether
respondent asked Mr. Wichansky to seek other
counsel, the relationship between respondent
and Inter-Tel was terminated by May or June
1992. Thereafter, Inter-Tel's new attorney,
Philip Levitan, wrote to respondent on June
22, 1992, requesting that respondent forward
to him the Inter-Tel files, along with
substitutions of attorney and an accounting
of amounts due to or collected in behalf of
Inter-Tel. When respondent did not reply to
that letter, Levitan followed up with another
letter, dated July 1, 1992. By letter dated
July 16, 1992, respondent advised Levitan
that he expected to have all of the "ninety-seven-some-odd" files together and ready for
transmittal to him shortly. By August 24,
1992, five weeks later, respondent still had
not forwarded anything to Levitan. Finally,
on October 20, 1992, respondent forwarded to
Levitan a copy of his ledger sheets and bills
to Inter-Tel. In that letter, he asserted
that Inter-Tel owed him $300.00 and inquired
of Levitan how his fee would be protected.
He further advised Levitan that he would send
substitutions of attorney on each of the
cases under separate cover.
On November 10, 1992, Levitan again
wrote to respondent, agreeing to protect his
fee and requesting that respondent forward
the files to him, particularly the [Concord]
and [Ellman] files. Levitan testified that
he had requested those two more substantial
files back in June 1992. It was not until
December 4, 1992 that respondent forwarded to
Levitan those two files. The remainder of
the files were never forthcoming.
Levitan testified that respondent seemed
to have invested a substantial amount of work
in both the Concord and Ellman files. In
fact, one of those files was completely
worked up by respondent for trial.
Respondent testified that he had stopped sending monthly
reports to Inter-Tel after August 1991 because the associate and
the administrative personnel who had been handling the Inter-Tel
files had left his firm. Furthermore, in February 1992, the
associate to whom respondent had subsequently assigned the Inter-Tel matters advised respondent that he would no longer perform
that work. Therefore, respondent advised Mr. Wichansky that his
firm could no longer handle Inter-Tel's collection matters.
Respondent gave several reasons to explain the delay in
forwarding the files to Inter-Tel's new attorney. Essentially,
respondent testified that he had been busy running a business,
that his bookkeeper had needed time to calculate the costs due
him, that many of the files to be forwarded had been closed, that
he had been asserting a retaining lien on the files, and that no
one had pressed him for copies of any of the files, with the
exception of Concord and Ellman.
The DRB found "respondent's conduct in the Sackner matter to be particularly egregious." It determined that respondent had failed to keep Dr. Sackner advised of the status of his matter and to comply promptly with his reasonable requests for information, in violation of RPC 1.4(a). It also found that respondent had violated RPC 8.4(c) by engaging in a pattern of misrepresentation to Dr. Sackner and to his new attorney, Mr. Gardner. The DRB further determined that respondent had violated
RPC 8.1(b) by failing to cooperate with the DEC for over one
year.
Finally, although the DEC made no such specific finding, the
DRB concluded that respondent had grossly neglected the Sackner
matter, thereby violating RPC 1.1(a), by failing initially to
reply to the summary-judgment motions, as well as failing to move
to set aside the orders granting summary judgment at any time
after their entry. The DRB found that "the DEC's rejection of
respondent's affirmative psychiatric defense was proper." It
emphasized that "[b]y respondent's own admission, his alleged
problems did not prevent him from effectively attending to the
matters of other clients."
With respect to the Sprich matter, the DRB rejected the
DEC's finding of unethical conduct, with the exception of failing
to cooperate with the DEC, in violation of RPC 8.1(b).
Specifically, the DRB disagreed with the DEC's conclusion that
respondent had acted unethically by failing to advise Mr. Sprich
of the pending motions to strike the pleadings and for default
judgment prior to the entry of orders granting that relief. The
DRB reasoned that
[w]hile both respondent and Mr. Sprich agreed
that respondent advised Mr. Sprich, after the
fact, that the motion for entry of judgment
of default had been granted, there was no
such agreement in their testimony with
respect to similar advice before the entry of
any orders, each taking opposite positions.
Simply stated, the Board could not make a
fair credibility assessment of the witnesses'
testimony vi[s]-a-vis both one another and
the balance of the evidence.
Accordingly, the DRB recommended the dismissal of all charges
relating to the Sprich matter, with the exception of the
violation of RPC 8.1(b).
In the Inter-Tel matter, the DRB accepted the DEC's finding
that respondent had failed to keep his client informed and had
failed to respond to his client's reasonable requests for
information, in violation of RPC 1.4(a). However, it rejected
the DEC's findings that respondent had committed ethical
violations because he had failed to forward the client files to
the new attorney and had failed to provide an accounting to that
attorney on termination of his representation.
Addressing the failure to forward the files, the DRB found
that respondent was asserting a retaining
lien over his client's files. The record is
totally devoid of any indication that anyone
suffered any prejudice by virtue of
respondent's failure to return the files. In
fact, respondent testified that most of those
files were closed. In addition, respondent
forwarded to Levitan the two original files
about which the client was primarily
concerned, albeit several months later. He
appears to have asserted the lien properly -
at least in the technical sense.
Although the DRB was "disturbed" that respondent had asserted a
lien in this matter because the dispute might have been caused,
in part, by respondent's failure to reduce to writing his
contingent fee arrangement, as required by RPC 1.5(c), it
concluded that that failure did not rise to the level of an
ethics violation in this case.
Furthermore, the DRB concluded that respondent had indeed
provided an accounting to Mr. Levitan, albeit four months after
Mr. Levitan's original request. In fact, based on the volume of
Inter-Tel files that respondent had been required to prepare for
transfer to Mr. Levitan, the DRB did not find significant the
four-month delay in submitting the accounting.
Based on our independent review of the record, we conclude
that the DRB's findings of unethical conduct are established by
clear-and-convincing evidence. Specifically, we find that in the
Sackner matter, respondent violated RPC 1.1(a) (prohibiting
lawyer from handling matter in grossly negligent manner), RPC
1.4(a) (requiring lawyer to keep client reasonably informed about
status of matter and to comply promptly with reasonable requests
for information), RPC 8.1(b) (requiring lawyer to respond to
lawful demand for information by disciplinary authority), and RPC
8.4(c) (prohibiting lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation). We adopt the
DRB's recommendation to dismiss all charges relating to the
Sprich matter, except for the violation of RPC 8.1(b), which is
supported in the record by clear-and-convincing evidence.
Finally, with respect to the Inter-Tel matter, we accept the
DRB's recommendation to dismiss all charges, except for the
violation of RPC 1.4(a), which is fully supported by the record.
In addressing the nature and extent of appropriate discipline, the DRB determined that there were no mitigating factors, and characterized respondent's defense based on his
history of psychiatric problems as "incredible." The DRB found
as aggravating factors that respondent had cooperated with the
DEC only after the OAE had moved before this Court for his
temporary suspension and that respondent had twice been the
subject of prior discipline for virtually identical misconduct.
The DRB unanimously recommended that respondent be suspended for
one year, that he be required to submit proof of fitness to
practice law prior to reinstatement, and that he be required to
practice under the supervision of a proctor for two years on
readmission. We agree with the DRB's recommended disposition.
We emphasize that we share the DRB's concern about
"respondent's apparent disregard for the truth" demonstrated in
the Sackner matter. When an attorney falsely represents to a
client that his or her case is proceeding smoothly, public
confidence in the bar is undermined. In re Cohen,
120 N.J. 304,
306 (1990). Clients must not "suffer the consequences of being
told their case [is] under control when it [is] not." In re
Goldstein,
97 N.J. 545, 549 (1984). Respondent misrepresented to
Dr. Sackner and Mr. Gardner the status of the matter on at least
three separate occasions. Even when Mr. Gardner confronted him
with information regarding the true status of the matter,
respondent continued to misrepresent. Such misrepresentations by
an attorney are intolerable.
Moreover, we agree with the DRB's decisions to reject
respondent's defense in the Sackner matter based on his history
of psychiatric problems and to decline to find his psychiatric
condition as a mitigating factor in determining an appropriate
sanction. We have acknowledged that "'there may be circumstances
in which an attorney's loss of competency, comprehension, or will
may be of such a magnitude that it would excuse or mitigate
conduct that was otherwise knowing and purposeful.'" In re Bock,
128 N.J. 270, 273 (1992) (quoting In re Goldberg,
109 N.J. 163,
168 (1988)). However, adequate proof that the underlying
disability was so severe as to excuse or mitigate the ethical
violation must be produced. We previously have evaluated an
attorney's misconduct by determining whether he had "known that
what he was doing was unethical and improper, and that he could
have refrained or desisted from doing what he did." In re
Yaccarino,
117 N.J. 175, 196 (1989).
In this case, Dr. Werner's report stated that from 1989
through the end of 1992, respondent "was under severe emotional
stress that clearly was causally related to his difficulties
responding to all of his responsibilities." However, the record
contains "no psychiatric evidence that respondent was at any time
out of touch with reality or unable to appreciate the ethical
quality of his acts." In re Bock, supra, 128 N.J. at 273.
Although respondent might have been suffering from depression
when he lied to Dr. Sackner and Mr. Gardner, there is no evidence
that he lacked the ability to understand the nature of his acts.
Accordingly, we agree with the DRB's determination that
respondent's psychiatric history neither excused nor mitigated
his conduct.
Respondent's case is further aggravated by his flagrant
violations of RPC 8.1(b). "[A]n attorney has a duty to cooperate
with the disciplinary committees." Cohen, supra, 120 N.J. at
307. See also In re Grinchis,
75 N.J. 495, 496 (1978) (finding
that "[d]isrespect to an ethics committee agent constitutes
disrespect to this Court"). Respondent failed to fulfill that
duty in connection with the investigations of the Sackner and
Sprich matters. In both of those matters, the DEC first advised
respondent of the grievance in September 1991, and repeatedly
requested information pertaining to those matters in the
following months. Those requests repeatedly were ignored by
respondent. Respondent's continued indifference required the
OAE, on July 19, 1992, to file with this Court an Order to Show
Cause why respondent should not be temporarily suspended. Faced
with that sanction, on September 25, 1992, respondent finally
filed an answer in the Sackner matter and wrote a letter to the
DEC's investigator offering his cooperation in the Sprich matter.
(Respondent finally filed an answer in the Sprich matter on
January 8, 1993.) Although the OAE thereafter withdrew its
petition for immediate temporary suspension on October 7, 1992,
this Court nevertheless ordered respondent to pay a $1,000 fine
as a penalty for his inexcusable indifference.
We further note that two times previously we have determined
that respondent committed ethical violations involving similar
misconduct. Respondent received a private reprimand in 1978 for
failing to apprise his client about the status of his suit. In
that case, the client also experienced unnecessary difficulty in
communicating with respondent. Respondent also has received a
public reprimand, In re Trueger,
92 N.J. 605 (1983), for ethical
violations in two different matters. In the first matter,
respondent neglected a civil suit, which led to its dismissal,
and then failed to inform his client of the dismissal and the
terms for reinstatement until long after the dismissal had been
entered. Respondent also failed to respond to repeated inquiries
from his client. In the second matter, respondent failed to
complete and serve interrogatories, which eventually resulted in
an entry of judgment against his client. After the client had
consulted another attorney, respondent misrepresented the status
of the matter to that attorney.
In sum, those prior ethical violations, along with the
present ethical violations, demonstrate that respondent has
repeatedly "failed to meet his professional responsibilities,"
Cohen, supra, 120 N.J. at 307, and therefore the Court must act
to protect the public. Respondent testified that he had hired
new personnel and had instituted new office procedures and
safeguards since his neglect and misrepresentations the Sackner
matter. After his public reprimand in 1983, respondent promised
to implement similar changes. In our view, respondent's
repetitive misconduct, in combination with his inexplicable
failure to cooperate with the DEC, requires significant
discipline. Accordingly, we adopt the DRB's recommendation and
suspend respondent from the practice of law for one year. We
further require respondent to submit proof of fitness to practice
law prior to reinstatement and to practice under the supervision
of a proctor for two years upon readmission. Subject to the
approval of the OAE, an attorney affiliated with respondent in
the practice of law may be designated as proctor.
Respondent shall reimburse the Disciplinary Oversight
Committee for appropriate administrative costs.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
Garibaldi, Stein, and Coleman join in this opinion.
SUPREME COURT OF NEW JERSEY
D-
70 September Term 1994
IN THE MATTER OF :
HOWARD C. TRUEGER, : ORDER
AN ATTORNEY AT LAW :
It is ORDERED that HOWARD C. TRUEGER of PARSIPPANY, who was
admitted to the bar of this State in 1971, is hereby suspended
from the practice of law for a period of one year, effective June
1, 1995, and until the further Order of the Court; and it is
further
ORDERED that respondent be restrained and enjoined from
practicing law during the period of his suspension and that he
comply with Rule 1:20-20 governing suspended attorneys; and it is
further
ORDERED that prior to reinstatement to practice respondent
provide proof of his fitness to practice law and that on
reinstatement he practice under the supervision of a practicing
attorney approved by the Office of Attorney Ethics for a period
of two years and until further Order of the Court; and it is
further
ORDERED that respondent reimburse the Disciplinary Oversight
Committee for appropriate administrative costs incurred in the
prosecution of this matter.
WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at
Trenton, this 5th day of May, 1995.
/s/ Stephen W. Townsend
CLERK OF THE SUPREME COURT
NO. D-70 SEPTEMBER TERM 1994
Application for
Disposition One Year Suspension
Decided May 5, 1995
Order returnable
Opinion by Per Curiam