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In re Forrest6/11/1999
Argued January 21, 1999
On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
This attorney discipline proceeding arises from a complaint filed by the District XIII Ethics Committee (DEC) against respondent Robert J. Forrest. The DEC issued a report, finding that respondent had engaged in unethical conduct warranting a public reprimand. The matter proceeded to a hearing before the Disciplinary Review Board (DRB). The DRB found that respondent had failed to disclose a material fact to a tribunal, obstructed a party's access to evidence of potential value, and engaged in conduct involving deceit, dishonesty and misrepresentation. The DRB recommended that respondent be suspended from the practice of law for three months, thereby rejecting the DEC's recommendation that respondent be reprimanded.
I.
In 1984, respondent was admitted to the New Jersey bar. At the time the ethics complaint was filed, respondent practiced with the law firm of Lieberman & Ryan in Somerville. In March 1993, Robert and Mary Ann Fennimore, husband and wife, retained Lieberman & Ryan to represent them in a personal injury action resulting from a car accident in which the Fennimores' car had been hit by another vehicle. The Fennimores, both of whom were in the car at the time of the accident, sought to recover from the driver of the other car. Mr. Fennimore claimed that as a result of the accident he suffered a rotator cuff tear, limitation of movement in his right ring finger, limitation of strength in his left shoulder, chronic cervical strain, and headaches. He further claimed that all of his injuries were "permanent." The scope of Mrs. Fennimore's injuries is not reflected by the record.
On April 5, 1993, Lieberman & Ryan filed a complaint against the driver of the other car on behalf of the Fennimores. Respondent was assigned to work on the Fennimores' file.
Mr. Fennimore died sometime between April 1993 and December 1993, for reasons unrelated to the car accident. (The record does not indicate the specific date of death.) Mrs. Fennimore notified respondent of her husband's death.
In December 1993, respondent, knowing of Mr. Fennimore's death, served unsigned answers to interrogatories, entitled "Plaintiff Robert A. Fennimore's Answers to Defendant's . . . Interrogatories," on his adversary, Christopher Walls, Esq. Neither the answers nor the cover letter indicated that Mr. Fennimore had died.
On June 8, 1994, respondent and Mrs. Fennimore appeared at an arbitration proceeding apparently conducted pursuant to Rule 4:21A (mandating arbitration in automobile negligence actions with amount in controversy less than $15,000 and other personal injury actions with amount in controversy less than $20,000). Before the proceeding, respondent advised Mrs. Fennimore that when she testified she should not voluntarily reveal her husband's death. When the arbitrator inquired about Mr. Fennimore's absence, respondent replied that Mr. Fennimore was "unavailable." The arbitrator awarded $17,500 to Mrs. Fennimore and $6000 to Mr. Fennimore. At no time before, during, or after the arbitration proceeding did respondent or Mrs. Fennimore inform the arbitrator that Mr. Fennimore had died.
After the arbitration, respondent contacted Walls to discuss a possible settlement. Again, respondent did not inform Walls of Mr. Fennimore's death.
From January to August 1994, Walls propounded several requests on respondent to produce Mr. Fennimore for a medical examination, but respondent did not reply to those requests. Consequently, Walls filed a motion with the trial court to compel Mr. Fen
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