In re Zeitler

• Decision Date: 10 February 2005
• Citation: 182 N.J. 389,866 A.2d 171
• Parties: In the Matter of Richard J. ZEITLER, an Attorney at Law.
• Court: New Jersey Supreme Court

866 A.2d 171

182 N.J. 389

In the Matter of Richard J. ZEITLER, an Attorney at Law.

Supreme Court of New Jersey.

Argued November 9, 2004.

Decided February 10, 2005.

Brian D. Gillet, Deputy Ethics Counsel, argued the cause on behalf of the Office of Attorney Ethics.

Douglas R. Kleinfeld, New Providence, argued the cause for respondent (Kleinfeld & Kleinfeld, attorneys).

Justice ZAZZALI delivered the opinion of the Court.

In this matter, a Special Master held hearings to address allegations of unethical conduct set forth in three complaints filed by the District VIII Ethics Committee against respondent, Richard J. Zeitler. The Special Master ultimately recommended a three-year suspension. Although a majority of the Disciplinary Review Board (DRB) agreed with the Special Master's recommendation, two members urged respondent's disbarment in a vigorous dissent. Consistent with that dissent, the Office of Attorney Ethics (OAE) now asks this Court to disbar respondent.

Twenty-five years ago, we noted that respondent had made misrepresentations to his clients as to the status of their cases, was "cavalier," and had a "deplorable disciplinary history." In re Zeitler, 85 N.J. 21, 25, 424 A.2d 419 (1980). The passage of time, and the three matters now before us, confirm those findings. Respondent's reprehensible conduct in this appeal, considered alone, would warrant imposition of a suspension. When we review his extensive history of ethics violations, however, we conclude that respondent is unfit to practice law and, therefore, must be disbarred.

I.

Respondent was admitted to the New Jersey bar in 1966. His ethical misdeeds began in 1976 when we suspended him from the practice of law for one year because of his misconduct involving dishonesty, fraud, deceit, or misrepresentation in two cases. In re Zeitler, 69 N.J. 61, 350 A.2d 479 (1976). In 1980, we again suspended respondent, this time for two years, for his gross neglect of two matters, misrepresentations to his clients, and failure to inform his clients that their cases had been dismissed. Zeitler, supra, 85 N.J. at 21, 424 A.2d 419. In 1995, he received an admonition for lack of diligence in a matter. In 1999, he was reprimanded for the improper release of escrow funds. In re Zeitler, 158 N.J. 182, 728 A.2d 1288 (1999). Finally, in 2000 we issued two orders reprimanding respondent. The first reprimand was for practicing law full-time while on the ineligible list due to nonpayment of the annual attorney assessment to the New Jersey Lawyers' Fund for Client Protection. In re Zeitler, 165 N.J. 500, 759 A.2d 846 (2000). Respondent received the second reprimand for failing to act diligently in handling a matter and failing to communicate adequately with his client. In re Zeitler, 165 N.J. 503, 759 A.2d 847 (2000). As a result of those two reprimands, we concluded that respondent should be required to practice law under the supervision of an OAE-approved proctor for a period of two years. Ibid.; Zeitler, supra, 165 N.J. at 500,

759 A.2d 846. Importantly, some of the misconduct involved in this appeal occurred during the proctorship.

II.

The DRB's opinion details at length the circumstances that gave rise to the three complaints of ethical misconduct at issue here. In view of the DRB's comprehensive recitation of the facts, we outline them in summary form.

A. The Morffiz Matter

In 1998, George Morffiz retained respondent to appeal an unsatisfactory workers' compensation award. The record indicates that, although respondent filed a notice of appeal on Morffiz's behalf, he failed to take any further action, resulting in dismissal of the case in January 1999. Respondent then repeatedly failed to answer his client's requests for an update on the progress of the appeal. Finally, in December 2000, Morffiz traveled from his Florida home and paid respondent a surprise visit at his law office. Respondent told Morffiz that he was unable to meet with him, and that he should come back in one week. Morffiz returned the following week, only to be told by respondent that he was awaiting a court date. As noted, the Appellate Division had already dismissed the appeal.

In October 2001, over two years after the matter had been dismissed, respondent filed a motion to reinstate Morffiz's appeal. The Appellate Division denied respondent's motion, reasoning that "[t]here [was] insufficient cause shown for reinstating [the appeal] almost three years later."

B. The Lavin Matter

Jose Lavin retained respondent in 1991 and again in 1992 to file workers' compensation claims for two separate workplace accidents. The record reflects that respondent filed both federal and state claims in 1993, but all of those claims were dismissed because respondent essentially abandoned them by allowing several years to lapse. Furthermore, during that long period of inaction, respondent failed to keep Lavin reasonably informed. Consequently, Lavin never received compensation based on any efforts by respondent.

C. The Cipolla Matter

In 1994, Leonard Cipolla, then fifteen-years-old, seriously injured his hand while operating a power saw in a high school shop class. Cipolla retained respondent in 1997 to represent him in a suit against the school district and the saw manufacturer. The DRB and OAE agree that respondent committed his most serious ethics violations in his representation of Cipolla.

Respondent filed a complaint in 1998, but the complaint was dismissed in March 1999 for failure to prosecute. Two months later, he successfully moved to have the matter reinstated. But, in 2001, the complaint was dismissed again because respondent failed to apprise the trial court of when he would be available for the start of trial. Although the matter was eventually restored, respondent sent an uninformed per diem attorney to several trial calls in January 2002. The trial court stated that sending the per diem attorney was "the same as not sending anybody" because that attorney was unable to inform the court when respondent would be ready to try the case. Finally, following respondent's absence at a trial call in mid-February, the court dismissed the complaint with prejudice. The court's order stated that dismissal with prejudice was the appropriate sanction because respondent had failed to appear at twelve trial calls.

Three months later, respondent filed a motion for reconsideration, which was denied. A year later, he filed another motion for reconsideration, which was also denied. Respondent then filed a late notice of appeal, which the Appellate Division dismissed for failure to prosecute. As a result, Cipolla lost his claim. Aggravating matters, respondent failed to communicate with Cipolla and failed to inform him of the true status of his case.

Throughout his flawed representation of Cipolla, respondent continuously misinformed Cipolla, ethics authorities, and courts. The DRB found that, in order to avoid a trial date, he lied to the trial court about needing to take his seriously ill wife to a New York hospital for treatment, and repeated that falsehood to the Appellate Division; that he lied to the trial court about needing an adjournment because he was waiting for transcripts when in fact he had never even ordered the transcripts; that he lied to Cipolla about the status of his case; and that he lied in his verified answer to the ethics complaint about having filed an appeal.

III.

A.

In 2003, the Morffiz, Lavin, and Cipolla complaints were consolidated and heard by Special Master Miles S. Winder, III. The Special Master found violations of RPC 1.1(a) (gross negligence), RPC 1.1(b) (pattern of negligence or neglect), and RPC 1.3 (lack of reasonable diligence and promptness) with respect to the Morffiz matter. With respect to the Lavin matter, the Special Master found violations of RPC 1.4(a) (failure to communicate with client), and RPC 1.4(b) (failure to keep client reasonably informed about status of matter and promptly comply with reasonable requests for information) on the basis that respondent kept his client in the dark about the dismissal of his state and federal claims. Finally, in the Cipolla matter the Special Master found violations of RPC 1.1(b), RPC 1.3, RPC 1.4(a), RPC 3.2 (failure to make reasonable efforts to expedite litigation), and RPC 3.3 (lack of candor toward tribunal). Although the presenter advocated disbarment, the Special Master recommended that respondent be suspended from the practice of law for a term of three years. The Special Master also imposed the additional requirement that, upon reinstatement, respondent "be prohibited from any civil litigation unless under the direct supervision of a proctor."

B.

On a de novo review of the record, the DRB accepted the Special Master's recommendation, with a few modifications, in a six to two decision. First, although the DRB agreed that respondent violated RPC 1.1(a) and RPC 1.3 in the Morffiz matter, the DRB additionally found violations of RPC 1.4(a) and (b), reasoning that respondent also failed to communicate with Morffiz and denied Morffiz an opportunity to make informed decisions about his appeal. Second, the DRB agreed with the Special Master that respondent violated RPC 1.4(a) and (b) in the Lavin matter. The DRB, however, found that respondent, by allowing Lavin's "claims to waste away for so many years," also violated RPC 1.1(a) and RPC 1.3. As to the Cipolla matter, the DRB agreed that respondent violated RPC 1.3, RPC 1.4(a), and RPC 3.3. The DRB also found that respondent's representation of Cipolla entailed violations of: RPC 1.1(a), because respondent allowed Cipolla to lose his claim; RPC 1.4(b), because respondent withheld information that Cipolla would need to make an informed decision; RPC 8.1(a) (false statement of material fact to disciplinary authorities), because respondent falsely informed the district ethics committee that he had filed an appeal; and RPC 8.4(c) (conduct involving dishonesty,...