In the Matter of Riva, 157 N.J. 34, 722 A.2d 933 (N.J. 1999). 722 A.2d 933 (Cite as: 157 N.J. 34,…

In the Matter of Riva, 157 N.J. 34, 722 A.2d 933 (N.J.
1999).

722 A.2d 933

(Cite as: 157 N.J. 34, 722 A.2d 933)

Supreme Court of New Jersey.

In the Matter of Robert E. RIVA, an Attorney at Law.

Argued Sept. 28, 1998.

Decided Feb. 5, 1999.

**934 *35 Lee A. Gronikowski, Deputy Ethics Counsel, argued
the cause on behalf of the Office of

Attorney Ethics.

Robert E. Riva, argued the cause pro se.

PER CURIAM.

This attorney discipline matter arises from a Report and
Recommendation of the Disciplinary Review Board (DRB) that respondent be
publicly reprimanded. Three members of the DRB
View complete question »

In the Matter of Riva, 157 N.J. 34, 722 A.2d 933 (N.J.
1999).

722 A.2d 933

(Cite as: 157 N.J. 34, 722 A.2d 933)

Supreme Court of New Jersey.

In the Matter of Robert E. RIVA, an Attorney at Law.

Argued Sept. 28, 1998.

Decided Feb. 5, 1999.

**934 *35 Lee A. Gronikowski, Deputy Ethics Counsel, argued
the cause on behalf of the Office of

Attorney Ethics.

Robert E. Riva, argued the cause pro se.

PER CURIAM.

This attorney discipline matter arises from a Report and
Recommendation of the Disciplinary Review Board (DRB) that respondent be
publicly reprimanded. Three members of the DRB concluded that a public
reprimand would be insufficient discipline and recommended a three-month
suspension. The majority recommendation is based on findings of the District VB
Ethics *36 Committee (DEC), concurred in by the DRB, that respondent had been
guilty of gross neglect, a violation of RPC 1.1(a), and a lack of diligence, a
violation of RPC 1.3. The misconduct involved the failure to file a timely
answer to a complaint against his clients and his subsequent failure to act
with necessary diligence to vacate a default entered on the complaint.
Respondent also failed to communicate with his clients in a timely manner and
misrepresented the status of the matter.

Respondent does not deny the essential facts but asserts
that the conduct resulted from a misunderstanding that his adversary had
withdrawn the complaint and his failure to have received notice of the proposed
default judgment. Respondent contends that the Court should not follow the
DRB’s recommendation that he be publicly reprimanded.

Based on our independent review of the record, we find clear
and convincing evidence that respondent engaged in conduct proscribed by RPC
1.1(a) and RPC 1.3, and that a public reprimand is warranted.

**9351

The matter involves respondent’s representation of Robert
Palceski and his wife, Janet, who owned a company against which a former
employee threatened to file an employment-practices claim. The disgruntled
employee had hired an attorney in 1992. Respondent told that attorney that if
the employee sued, the employer would file a counterclaim based on alleged
financial improprieties engaged in by the employee. That attorney did not file
an action. The employee hired a new attorney

In January 1993, the new attorney served a summons and
complaint on the employer. The employer retained respondent again. After some
modification of the documents, respondent obtained a stipulation to extend the
time for filing an answer to the complaint.

*37 Respondent never filed the stipulation or the answer and
counterclaim. Although he testified that his conversation with the employee’s
attorney led him to believe that she would voluntarily dismiss the matter, the
adversary testified that she had never made such a statement because her client
was “adamant” about pursuing the claim. Meanwhile, respondent had told the
Palceskis that he had filed the answering papers and that, because he had heard
nothing further from opposing counsel, the case would just “go away.”

The employee’s attorney said that she called respondent
several times and left a number of messages on his answering machine between
March and May 1993 to determine whether respondent intended to file an answer
to the complaint. She eventually learned by calling the court that respondent
had never filed an answer on behalf of his client.

In May 1993, the employee’s attorney obtained an order
entering default. Her transmittal letter to the court and an affidavit of
service prepared by her secretary indicated that the request for entry of
default and a copy of the proposed default order had been sent to respondent by
regular mail. Respondent denied receiving them.

The court entered a default judgment against the employer
for $1.7 million in September 1993. A court officer seized the trucks, tools,
and bank accounts of the employer. A constable sought to seize the personal
cars and other assets of the Palceskis.

Robert Palceski telephoned respondent while the constable
was at his home. Respondent assured him that he would go to court the next day
to have their assets returned to them. He went to the Palceskis’ home that
evening to obtain copies of the papers served on them to prepare an emergent
motion to vacate the default and assured them that he was working on the
motion. The Palceskis asked for a copy of the motion, but respondent “put them
off.” It was only when Robert Palceski threatened to drive to respondent’s
office to pick up a copy of the motion that respondent agreed to fax him a
copy. The faxed copy consisted of *38 14 blank pages. When later asked about
the blank pages, respondent stated that he might have put the pages in the
machine backwards or improperly transmitted the document.

When respondent went to court two days later, he was only
able to obtain the release of the Palceskis’ trucks and tools. (Respondent
contends that the default judgment improperly included a business entity not
named in the original complaint.) Although respondent filed a later motion to
vacate the default in full, the trial court held that respondent’s papers were
deficient and that additional information was needed to set forth a meritorious
defense to the claim.

From September through December 1993, respondent told the
Palceskis on a number of occasions that he was consulting with other attorneys
and conducting research on their defense. By the time that the court considered
the motion again in December, the Palceskis had retained a new attorney. It was
several weeks before respondent turned over the file.

The only papers in the file were the motion to vacate the
default with its accompanying inadequate certification, a cover letter to the
employee’s attorney with the draft stipulation extending the time to answer,
and the draft answer and counterclaim. Only the motion to vacate had been filed
with the **936 court. The Palceskis later settled the lawsuit of the employee
by a payment of $11,500.

In his testimony before the DEC, respondent acknowledged
that although he knew that a stipulation of dismissal was necessary to have
resolved the litigation once the complaint had been filed, he never obtained
one. He believed that he had resolved the problem with the employee’s
attorneys.

The DRB agreed with the DEC that respondent’s conduct
displayed gross neglect and a lack of diligence from the time that he failed to
file a timely answer to the complaint through his failure to act with necessary
haste to vacate the default.

The dissenting members stressed respondent’s continuous
misrepresentations to his clients about the status of the matter both *39
before and after the entry of the default, and the great financial and
emotional injury suffered by the clients, who had relied on respondent’s false
assurances that their interests were being protected. The experience was a
“nightmare” for respondent’s clients, who were threatened with bankruptcy and
the loss of their personal assets. In the dissenters’ view,

this is precisely the sort of attorney who contributes to
the lamentable state of disrepute in which the attorney population has fallen,
and who is responsible for the public’s loss of trust in the legal profession.
In order to assure the public that such conduct will never be tolerated, we
believe that a period of suspension must be imposed. We would suspend this
respondent for three months.

II

We have attempted to establish over a long period of years predictable
standards for the imposition of discipline in cases of attorney misconduct. On
one end of the spectrum are the cases in which disbarment of an attorney will
be “almost invariable.” In re Wilson, 81 N.J. 451, 453, 409 A.2d 1153 (1979)
(misappropriating client funds).

Crimes of dishonesty touch upon a central trait of character
that members of the bar must possess. In re Di Biasi, 102 N.J. 152, 506 A.2d
719 (1986). Such crimes are defined as a “serious crime” pursuant to Rule
1:20-13b(2). We have repeatedly held that “when a crime of dishonesty touches
upon the administration of justice,” id. at 155, 506 A.2d 719, the offense “is
deserving of severe sanctions and would ordinarily require disbarment.” In re
Verdiramo, 96 N.J. 183, 186, 475 A.2d 45 (1984); In re Edson, 108 N.J. 464, 530
A.2d 1246 (1987) (counseling client to commit perjury and lying to prosecutor).
Such conduct “poisons the well of justice.” In re Pajerowski, 156 N.J. 509, 721
A.2d 992 (1998) (quoting In re Verdiramo, supra, 96 N.J. at 185, 475 A.2d 45).
Serious crimes not touching on the administration of justice often warrant the
same penalty of disbarment. In re Lunetta, 118 N.J. 443, 572 A.2d 586 (1989)
(conspiring to receive and sell stolen securities); In re Mallon, 118 N.J. 663,
573 A.2d 921 (1990) (conspiring to commit tax fraud).

*40 Nevertheless, “even in proceedings involving ‘serious
crimes,’ mitigating factors may justify imposition of sanctions less severe
than disbarment or extended suspension.” Compare In re Imbriani, 149 N.J. 521,
533, 694 A.2d 1030 (1997) (disbarment for engaging in numerous acts of
misconduct that involved substantial amounts of money) with In re Litwin, 104
N.J. 362, 517 A.2d 378 (1986) (five-year suspension for arson); In re Kushner,
101 N.J. 397, 502 A.2d 32 (1986) (three-year suspension for false
certification); In re Labendz, 95 N.J. 273, 471 A.2d 21 (1984) (one-year
suspension for instigating fraudulent representations to federally insured
lender for purposes of obtaining a mortgage, despite excellent reputation,
unblemished record, and lack of personal gain); and In re Silverman, 80 N.J.
489, 404 A.2d 301 (1979) (18-month suspension for filing false answer with the
bankruptcy court to retain custody of certain assets).

Other crimes of dishonesty not touching upon the
administration of justice nonetheless demonstrate an absence of character that
ordinarily warrants extended periods of suspension.

[1] Crimes that subvert the public policy and good order of
the State will ordinarily warrant a period of suspension. In re Kinnear, **937
105 N.J. 391, 522 A.2d 414 (1987) (one-year suspension for criminal drug use);
In re Herman, 108 N.J. 66, 527 A.2d 868 (1987) (three-year suspension for
criminal sexual contact).

[2] Material misrepresentations of fact in sworn affidavits
will warrant a long period of suspension. In re Lunn, 118 N.J. 163, 570 A.2d
940 (1990) (three years). Even misrepresenting a reason for an overlooked court
appearance may result in a suspension. In re Johnson, 102 N.J. 504, 509 A.2d 171
(1986) (three months).

[3] Charges of client neglect “are serious and can have a
detrimental impact on the confidence the public should have in the [b]ar of
this state.” In re O’Gorman, 99 N.J. 482, 492, 493 A.2d 1233 (1985) (citation
omitted). When such ethical infractions demonstrate a pattern of neglect and of
misrepresentation to clients, a period of suspension is warranted. In re
Cullen, 112 *41 N.J. 13, 20, 547 A.2d 697 (1988); In re O’Gorman, supra, 99
N.J. at 492, 493 A.2d 1233; In re Getchius, 88 N.J. 269, 276, 440 A.2d 1341
(1982).

We have noted, however, in such cases that “the picture
presented is not that of an isolated instance of aberrant behavior unlikely to
be repeated. [The attorney’s] conduct over a period of years has exhibited a
‘pattern of negligence or neglect in the handling of matters.’ “In re Getchius,
supra, 88 N.J. at 276, 440 A.2d 1341 (quoting In re Fusciello, 81 N.J. 307,
310, 406 A.2d 1316 [1979]). The Cullen case involved two instances of neglect;
O’Gorman involved four instances of neglect after being suspended for five
prior similar complaints; and Getchius involved six instances of neglect. Other
cases of suspension for client neglect and misrepresentation include In re
Terner, 120 N.J. 706, 577 A.2d 511 (1990) (threeyear suspension for pattern of
neglect for failure to communicate with 13 clients despite potential mitigating
factor of drug addiction, which respondent denied); In re Stein, 97 N.J. 550,
483 A.2d 109 (1984) (six-month suspension for “pattern of neglect” in handling
three matters coupled with self-dealing in another matter); In re Goldstaub, 90
N.J. 1, 446 A.2d

1192 (1982) (one-year suspension for pattern of neglect
involving three civil cases and one criminal case combined with long history of
ethical complaints). In light of respondent’s unblemished record for almost two
decades, he does not fall within the end of the spectrum that warrants
suspension.

III

[4] [5] [6] [7] “[T]he principal reason for discipline is to
preserve the confidence of the public in the integrity and trustworthiness of
lawyers in general,” In re Kushner, supra, 101 N.J. at 400, 502 A.2d 32
(quoting In re Wilson, supra, 81 N.J. at 456, 409 A.2d 1153). In making
disciplinary decisions, we must consider the interests of the public as well as
of the bar and the individual involved. Ibid. “The severity of discipline to be
imposed must comport with the seriousness of the ethical infractions in light
of *42 all the relevant circumstances.” In re Nigohosian, 88 N.J. 308, 315, 442
A.2d 1007 (1982). For that reason, we consider factors in mitigation of the
seriousness of the offense. In re Hughes, 90 N.J. 32, 36, 446 A.2d 1208 (1982).

Although respondent’s conduct was inexcusable in that he had
compounded his initial neglect in not filing an answer with his later neglect
and misrepresentation concerning his efforts to vacate the default judgment,
the ethical misconduct is related to one client transaction. The closest
analogous case, In re Kantor, 118 N.J. 434, 435, 572 A.2d 196 (1990), also
involved a single failure to file an appellate brief and to represent
truthfully the status of the appeal, but the one-year suspension reflected that
it was conduct “viewed in combination with a prior ethics infraction and lack
of mitigating factors.” Generally, in the absence of conduct evidencing a
disregard for the ethics system, cases involving a similar mixture of ethics
infractions have resulted in a reprimand. See, e.g., In re Onorevole, 144 N.J.
477, 677 A.2d 210 (1996) (reprimand for gross neglect, lack of diligence,
failure to communicate, failure to cooperate with disciplinary authorities and
misrepresentation; attorney misrepresented to client that he had filed a
complaint and that court was backlogged in filing complaints, when in fact
attorney had not filed the complaint at all); In re **938 Horton, 132 N.J. 266,
624 A.2d 1367 (1993) (reprimand for lack of diligence, failure to communicate,
failure to provide sufficient information to allow client to make informed
decisions and misrepresentation; attorney allowed an appeal to be procedurally
dismissed, based on his belief that he could not win appeal, first allowing his
client to believe that appeal was pending and then attempting to mislead client
into believing that appeal was dismissed on merits).

[8] [9] “We ordinarily place great weight on the
recommendation of the Disciplinary Review Board.” In re Kushner, supra, 101
N.J. at 403, 502 A.2d 32; see also In re Vaughn, 123 N.J. 576, 589 A.2d 610
(1991) (adopting DRB’s recommendation to reprimand publicly attorney who had
failed to keep client informed, *43 displayed pattern of neglect, and had
failed to reply to DEC investigation). We greatly respect, as well, the views
of the dissenting members of the DRB but believe that predictability and
uniformity in the imposition of ethical decisions call for a public reprimand
in these circumstances. We do not find that respondent’s misconduct
demonstrates dishonesty, deceit, or contempt for law, but rather an
aberrational neglect of his responsibilities as an attorney. Respondent will
suffer the reproach of his peers for the suffering inflicted on his client.
Finally, we cannot overlook the fact that the default judgment of $1.7 million
was entered (perhaps against the wrong parties) in a case that settled for $11,500.

For all of these reasons, we conclude that the appropriate
discipline is a public reprimand.

Respondent shall reimburse the Disciplinary Oversight
Committee for appropriate administrative costs, including the costs of
transcripts.

For reprimand—Chief Justice PORITZ and Justices

HANDLER, POLLOCK, O’HERN, GARIBALDI, STEIN, and COLEMAN—7.

Opposed—None

ORDER

It is ORDERED that ROBERT E. RIVA of SHORT HILLS, who was
admitted to the bar of this State in 1979, is reprimanded; and it is further

ORDERED that the entire record of this matter be made a
permanent part of respondent’s file as an attorney at law of this State; and it
is further

ORDERED that respondent reimburse the Disciplinary Oversight
Committee for appropriate administrative costs incurred in the prosecution of
this matter.

END OF DOCUMENT

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