In re Brady

540 A.2d 511, 110 N.J. 217, 1988 N.J. LEXIS 36
CourtSupreme Court of New Jersey
DecidedMay 6, 1988
StatusPublished
Cited by2 cases

This text of 540 A.2d 511 (In re Brady) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Brady, 540 A.2d 511, 110 N.J. 217, 1988 N.J. LEXIS 36 (N.J. 1988).

Opinion

PER CURIAM.

This disciplinary proceeding arises out of two presentments filed by the District IV Ethics Committee for Camden and Gloucester Counties (the Ethics Committee), which concluded in each matter that respondent had committed unethical conduct. The Disciplinary Review Board (DRB) agreed with the Ethics Committee’s finding of unethical conduct, and unanimously recommended that respondent be publicly reprimanded. Our independent review of the record leads us to the conclusion that respondent has been guilty of unethical conduct in the matters charged. However, we think that a three months suspension from the practice of law more appropriately reflects the seriousness of respondent’s conduct.

I

Respondent was admitted to the bar in 1951. The presentments stem from two separate transactions.

A. The Humphrey Matter

On October 19, 1982, Lloyd Humphrey retained the respondent on a contingency fee basis to handle all claims for injuries [219]*219that Humphrey sustained in a fall from the roof of his brother’s house. Three days later, on October 22,1982, Humphrey sent a mailgram to respondent to “cancel” their agreement. On that same date, Humphrey sent respondent a letter confirming he would “like to cancel” their agreement for respondent to represent him.

Shortly thereafter, notwithstanding Humphrey’s termination letter, respondent telephoned Humphrey several times and urged him to continue the legal action, suggesting that the insurance company would not settle if Humphrey were not represented in his claim. Respondent also forwarded several letters to various persons including doctors and a hospital in preparation of the case.

By letter dated April 18, 1983, Humphrey advised respondent he did not “currently wish” to have respondent represent him, adding that should he find the insurance company totally uncooperative in settling the matter, he would then use respondent’s services. By letter dated April 29, 1983, respondent replied he had already filed the lawsuit. At the ethics proceedings, respondent produced a copy of a letter dated April 12, 1983, to the Clerk of the Superior Court in Trenton in which he filed the legal action on behalf of Humphrey. A copy of the first page of the complaint marked into evidence at the ethics proceedings reflected a filing date of April 22, 1983.

When Humphrey received respondent’s letter, he telephoned respondent and told him he did not want a lawsuit filed. Respondent replied that if he attempted to withdraw the legal action at that time, Humphrey would incur expenses and would not receive anything from the insurance company. Humphrey then instructed respondent to do what he could to settle the matter immediately.

On August 30, 1983, Humphrey wrote respondent, stating that his family did not agree with his approach in resolving this matter and instructed respondent “to do whatever is necessary to resolve and settle this case immediately.” This letter was [220]*220followed by a mailgram dated September 1, 1983, in which Humphrey directed respondent “to settle this case within the week or drop it completely.”

Respondent answered by letter dated September 8,1983. He informed Humphrey that he was awaiting a medical report before he could proceed further with the case. On October 11, 1983, respondent received the medical report in which the doctor found that Humphrey would experience some disability, including pain and a limitation of functioning.

Two days later, on October 13, 1983, Humphrey sent respondent a letter, which stated in part:

Effective with the date of this letter, please be advised that your services are no longer required and are terminated. Your authority is null and void.

Respondent was further directed by Humphrey to transfer all his files to a Patrick Shannon, Esq., Humphrey’s new attorney. Nonetheless, on October 17, 1983, respondent accepted the insurance company’s offer of $5,000 in full settlement of the case. He immediately wrote Humphrey informing him of the settlement. In that letter he acknowledged Humphrey’s October 13, 1983, letter merely by stating that he had received it. On October 20, 1983, without waiting for further communication from his former client, respondent wrote to the insurance company, requesting a release.

On October 17,1983, Patrick Shannon, Esq., Humphrey’s new attorney, wrote respondent, informing him that he had been retained by Humphrey. Four days later he wrote a similar letter to the insurance company.

On October 25, 1983, before the insurance company became aware of the presence of a second counsel, it forwarded a release form and Stipulation of Dismissal to respondent.

This flurry of correspondence caused confusion, and on October 28, 1983, the attorney for the insurance company wrote to Mr. Shannon:

Both you and Mr. Brady have confirmed that this case is settled for $5,000. Under these circumstances, I am confused as to who is representing Mr. [221]*221Humphrey, at this point. I would appreciate your advice concerning this matter.

On that same day, respondent wrote to Mr. Shannon stating that he was entitled to “more than my expenses. I settled the case for $5,000.” On November 1, 1983, Humphrey wrote two letters: one to respondent, claiming dissatisfaction with the settlement and reminding respondent that his services had been terminated as of October 13, 1983, and one to the insurance company informing it that respondent had been terminated and a new attorney had been retained.

Apparently as a result of communications between respondent and Humphrey’s new counsel, respondent agreed to forward a substitution of attorney, once he received a check to cover his costs and fee, a total of $2,029.44. He confirmed this agreement by letter dated November 7, 1983.

When the attorney for the insurance company did not receive the completed release forms, he filed a motion to enforce the settlement, returnable on December 16, 1983. The DRB describes respondent’s conduct in pursuit of the Humphrey judgment as follows:

Since respondent had planned to be in Vermont on December 16, he prepared a form of judgment which ordered that the $5,000 settlement be paid by the insurance company. Although this company insured the defendants in the civil legal action, it was not a named party in the suit. The judgment provided that a check be issued to respondent for $2,029.44 and the balance of $2,970.56 be paid to plaintiffs. Two days before the return date of the motion, respondent went to a Superior Court judge requesting that he sign the judgment. When the judge testified before the ethics committee, he said respondent had asked him to sign a consent order, which he assumed had been agreed to by all the parties involved. After the judgment was signed, respondent took a copy to the insurance company attorney who did not object to it, because it was in the agreed upon amount and the checks were in the amounts previously agreed to by Humphrey’s new attorney. Respondent did not deliver a copy to Humphrey’s attorney who only learned of it when he received a telephone call from the insurance company’s attorney. Respondent filed the judgment but did not file a warrant to satisfy the judgment after he received the money.

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Bluebook (online)
540 A.2d 511, 110 N.J. 217, 1988 N.J. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brady-nj-1988.