Rosner, Matter of

Decision Date07 November 1988
Citation549 A.2d 428,113 N.J. 2
PartiesIn the Matter of Edward J. ROSNER, An Attorney at Law.
CourtNew Jersey Supreme Court
ORDER

The Disciplinary Review Board having filed a report with the Supreme Court recommending that EDWARD J. ROSNER, formerly of PRINCETON, who was admitted to the Bar of this State in 1975, be publicly reprimanded for 1) serving his own interests in derogation of his obligations of fidelity to his clients' interests, in violation of DR 5-104, DR 5-105, and DR 5-106; 2) gross negligence, in violation of DR 6-101; and 3) misrepresentation, actions prejudicial to the administration of justice, and misconduct that adversely reflect on his fitness to practice law, in violation of DR 1-102(A)(4), (5) and (6), and good cause appearing;

It is ORDERED that the findings and determinations of the Disciplinary Review Board are hereby adopted and respondent is publicly reprimanded; and it is further

ORDERED that the full record of the matter be added as a permanent part of the file of said EDWARD J. ROSNER as an attorney at law of the State of New Jersey; and it is further

ORDERED that EDWARD J. ROSNER reimburse the Ethics Financial Committee for appropriate administrative costs incurred in the prosecution of this matter.

APPENDIX

Decision and Recommendation of the Disciplinary Review Board

To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

This matter is before the Board based upon a presentment and a recommendation for private reprimand resulting from two separate District VII (Mercer County) Ethics Committee hearing panel reports. The facts may be summarized as follows.

In 1976, respondent formed a law partnership with another attorney in Princeton. By this stage in his career, he had acquired a specialty in corporate securities law and avoided courtroom litigation. In the summer of 1978, respondent's partnership merged with another law firm; respondent remained a partner and practiced almost exclusively in his specialty.

By early 1981, respondent's relationship with his partners had deteriorated. On February 10, 1981, respondent withdrew from the law firm and began practicing as a sole practitioner. By the following May, however, he had joined another small law firm in New Jersey. This association, too, did not last.

In February 1983, respondent joined a Philadelphia, Pennsylvania, law firm as a partner. There he could, once again, specialize in corporate securities law. Respondent remained with that firm until May 1985, when he began working as general counsel to a large public company. By 1986, respondent stopped practicing law altogether. 1 He is now vice-president and chief executive officer of this public company.

Respondent has a history of serious medical problems. In early 1972, respondent had a mild heart attack and was thereafter subject to severe angina attacks and frequent hospitalizations. In late 1972, a laminectomy was performed and one of his disks was removed. In 1974, his heart problems caused him to refrain from working for nearly a year. On July 4, 1980, respondent suffered a severe angina attack and was scheduled for a coronary catheterization. About four days before the surgery was to be performed, he was admitted to the hospital on an emergency basis with severe chest pains. It was not until August 1980 that respondent was able to return to work. In January 1981, respondent suffered another severe angina attack that required hospitalization. He remained hospitalized until February 9, the day before he withdrew from his law partnership. Arterial bypass surgery was performed on respondent in June 1983. Unfortunately, surgery did not cure respondent's medical problems, and he was hospitalized again in March 1984 and on New Year's Day 1985.

From his first heart attack in 1972, respondent's doctors continually cautioned him to avoid any and all stress. Respondent claimed he first sought to do this by avoiding litigation but was ultimately able to do so only by leaving the practice of law, which he did in 1986. He further claimed that his medical problems have been under control since that time.

Respondent's wife also has a long history of severe medical problems. She underwent surgery for a malignancy shortly after her marriage in 1965. Following that, she had treatment for leukemia. In December 1980, she again had surgery, this time for removal of her thyroid. About a year later, she underwent more surgery and had a complete hysterectomy. Respondent claimed his wife's medical condition also affected his actions and contributed to the stress under which he operated.

The two separate matters underlying these ethics proceedings occurred from 1977 through 1984. The facts of each follow.

APPELBAUM MATTER

In 1977, Sabina Appelbaum learned that in 1976 one of her former attorneys had ineffectively prepared a deed which was supposed to transfer title to the marital residence from both spouses back into her name only. As a result, when her second husband suffered business losses and was forced into bankruptcy, his interest in the house was sold at a sheriff's sale. Sabina Appelbaum was forced to repurchase her husband's former interest.

Thereafter, Sabina Appelbaum determined to seek redress from the attorney who had prepared the deed of transfer. Unable to find an attorney within the same county who would handle the legal malpractice action, she was referred to respondent by her brother, an officer or trustee of the New Jersey Veterinarian Association. This Association was a client of respondent's law firm. She and her husband met with respondent in his office on November 8, 1977. Both the Appelbaums and respondent agreed respondent was retained to handle the case. However, the parties disagreed on the particulars of his retention.

The Appelbaums testified before the district ethics committee that respondent informed them he would take the case on a contingent fee basis, but no written agreement to this effect was signed. According to the Appelbaums, he also opined the matter would be settled prior to any actual court hearing. The Appelbaums claimed he never informed them he would not personally handle the matter if court appearances were required. They also testified they informed respondent the estimated damages were $6,500.

Contrariwise, respondent testified there never was a contingent fee agreement. Rather, after his partner's consent, he informed the Appelbaums there would be no fee, given the Veterinanian Association's status with the law firm. Hence, there was no written fee agreement. Further, respondent testified he informed the Appelbaums that one of his associates and not he, would handle any and all court appearances, because his health did not permit him to appear in court. Finally, respondent's recollection of the estimated damages as stated by the Appelbaums was $2,500.

In the summer of 1978, shortly after respondent's firm had merged with another Princeton law firm, respondent testified he informed the Appelbaums that the matter could not be settled and that someone other than he would be handling the courtroom work. He again emphasized he simply could not litigate because of his health. He testified he transferred the file to an associate by memo, but there is no copy of the memo or any other corroborative evidence in the record.

At some point following this meeting with the Appelbaums, both parties testified respondent was retained to incorporate their new business venture. He prepared all documents of incorporation for both the operating and the holding companies, as well as the documents for the transfer of the real estate wherein the business was to be located. Once again, there is a dispute as to the fee arrangement. The Appelbaums testified respondent requested a stereo from their store in lieu of cash. Respondent testified he provided these legal services on a no fee basis. 2

At some point thereafter, Sabina Appelbaum claimed she slipped and fell in a supermarket, sustaining some mild injuries. Her medical bills totaled approximately $584. She testified she contacted respondent about the possibility of commencing a personal injury action against the supermarket. She testified further respondent agreed to handle the matter on a contingent fee basis, although, once again, there was no written agreement executed. The Appelbaums testified respondent informed them about four months later that he had obtained a check from the supermarket's insurance carrier in the amount of $7,000, but that he had returned the check without consulting them, because he believed the amount to be exorbitant for the injuries sustained. They asserted respondent then tendered a check in the amount of $584 in settlement, because that was the amount of Sabina Appelbaum's medical expenses. Respondent flatly denies this entire episode. 3

During 1980 and for portions of 1981, both parties testified that the Appelbaums' queries concerning the status of their malpractice action received the same answer from respondent: the suit had been instituted, but nothing yet had been received from the court. Respondent testified he made these assertions based on information obtained from the associate handling the litigation. Respondent, however, could not identify the responsible associate.

In April 1981, after respondent had withdrawn from the Princeton law firm, he testified he was contacted by the Appelbaums once again concerning the legal malpractice action. He testified they requested he obtain their files and continue as their attorney. Respondent obtained releases from them but believing his continued representation was for work associated with their business venture, obtained only those files at that time.

In the summer of 1981, shortly after respondent's association with a small New Jersey law firm, the Appelbaums' daughter and son-in-law retained respondent to prepare documents in a real estate matter. Respondent...

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