Matter of Lunn

PER CURIAM.

This disciplinary proceeding arises out of a presentment filed by the District IV Ethics Committee (DEC), which concluded that respondent had committed unethical conduct. The Discipli*164nary Review Board (DRB) agreed that respondent engaged in unethical conduct that violated DR 1-102(A)(4), DR 1-102(A)(5), DR 7-102(A)(5), and DR 7-102(A)(6).1 The DRB unanimously recommended that respondent be suspended from the practice of law for one year.

I

Respondent was admitted to the bar in 1959. He has not been the subject of prior discipline. Throughout his career his practice consisted primarily of personal-injury litigation on behalf of both plaintiffs and defendants.

This disciplinary matter concerns respondent’s conduct with respect to a personal injury action brought on his own behalf. The suit arose from a visit respondent, his wife Sylvia, and teenage son made on April 27,1980, to a casino in Atlantic City. The Lunns had dinner at one of the casino’s restaurants and walked around the casino. Respondent alleges that while leaving the casino, he sustained personal injuries when an escalator to the parking garage came to a sudden and unexpected stop. Another passenger, J.F., also claimed injury as a result of the sudden stop. The casino did not make a record of the accident and neither party reported the accident to the casino.

Mrs. Lunn died in August of 1980. By letter dated April 2, 1982, respondent wrote to the casino’s insurance company and enclosed a handwritten statement that he referred to “as a statement of my wife Sylvia P. Lunn which sets forth basically how the incident occurred.”

On April 22, 1982, respondent filed a suit in Superior Court against the casino and the manufacturer of the escalator, *165claiming damages for his injuries from the escalator incident. He also filed suit on behalf of J.F. and her husband. Respondent later withdrew as counsel for J.F. and also obtained counsel for himself.

In the course of the litigation respondent answered interrogatories propounded of him by the defendants. He responded to question twenty-one, which inquired whether he had obtained any statements concerning the incident, as follows: “Yes. Statement from my wife and son have been supplied to defendants’ insurance company and I assume defendants.” Respondent certified that the statements made in answer to the attached interrogatories were true.

As the DRB accurately sets forth in its Decision and Recommendation, respondent was asked at least five times during his deposition about the statement purportedly signed by his wife:

Respondent first identified his handwritten statement as follows:
A. Yes, this appears to be the statement of information that my wife supplied and, you know, I think that your insurance company got it.
Q. The Exhibit W-l is a statement of April 30,1980 by Sylvia P. Lunn; is that correct?
A. Yes.
Q. Okay.
A. To the best of my knowledge.
Later, in response to specific questions, respondent testified that he could picture his wife sitting at the dining room table and writing out another statement. Id. at 62. Subsequently, the following occurred:
Q. Mr. Lunn, what’s been marked W-l, that is your wife’s statement— A. Yeah.
Q. She wrote that out; is that correct?
A. Yeah.
Thereafter, on page 132 of Exhibits EC-10 in Evidence, the following occurs: Q. —now, sir, after this incident, two statements were prepared by your wife and your son. Is that true, sir?
A. Yes, because, as I mentioned previously, when — well, you know, I knew that I — I thought that somebody would probably contact me from Bally____
*166Q. Okay. Let me ask you first about W-l, which is a two page document. Did Sylvia herself write that out, sir, physically write it out? [or] did she dictate that to somebody or did she tell somebody else and they wrote it down. Did she physically write that?
A. Well, to the best of my recollection, you know, as I’ve indicated to you, this was written, signed by my wife in our dining room after we discussed, you know, preparing some sort of a memo or statement or whatever concerning this incident.
Q. Okay. Whose idea was it to prepare such memos?
A. Mine.
Q. Let me ask you this: you, of course, were married to your wife for a great number of years. Are you familiar with her handwriting?
A. Yes.
Q. Is that her handwriting on W-l?
A. As I’ve testified, yes.

Despite several opportunities to admit that he had written and signed his wife’s purported statement, respondent persisted in the lie that his wife had written and signed the statement. As the litigation proceeded, it became evident that defendant’s counsel suspected that Sylvia Lunn had not written the statement. On June 6, 1983, defendants obtained an order from the Superior Court, requiring Mr. Lunn to provide cancelled personal checks signed by Sylvia Lunn. Respondent did not comply with the order. On July 20, 1983, defendants obtained a second order from the Superior Court, expressly providing that if Lunn failed to provide the required material, his complaint would be dismissed. Rather than provide the material, respondent voluntarily dismissed the complaint with prejudice.

In late 1983, defendants’ counsel communicated with the Camden County Prosecutor’s Office concerning the validity of Sylvia Lunn’s statement and respondent’s lawsuit. On May 2, 1984, respondent made a statement to the prosecutor’s office and admitted that, despite his testimony at the deposition, he knew at the time of the deposition that he “had written the body of, and signed the name of Sylvia P. Lunn to the document” discussed in his testimony. The prosecutor’s office then referred the matter to the Ethics Committee.

*167II

Respondent’s unethical conduct is established by clear and convincing evidence. It is now undisputed that Sylvia Lunn’s statement was written and signed by respondent. Accordingly, his representations in his letter to the insurance carrier, his sworn answer to interrogatory twenty-one, and his numerous statements in the depositions under oath, with respect to the statement, were all untrue.

We find, as did both the DEC and DRB, that respondent’s conduct in asserting that the statement was written and signed by Sylvia Lunn was deceitful, in violation of DR 1-102(A)(4), and prejudicial to the administration of justice, in violation of DR 1-102(A)(5). Moreover, we find that respondent violated DR 7-102(A)(5) by knowingly making false statements of fact, and DR 7-102(A)(6) by preserving evidence that he knew to be false.

The question now becomes what is the appropriate sanction. It is well-established that the primary reason for discipline is not to punish the attorney but to protect the public against members of the bar who are unworthy of their trust. In determining appropriate discipline we consider the interests of the public, the bar, and the respondent. In re Kushner, 101 N.J. 397, 400, 502 A.2d 32 (1986):

Each disciplinary case is fact-sensitive. Nonetheless, prior cases are helpful in suggesting the scope of appropriate discipline. Respondent’s conduct is most analogous to the conduct of respondent in In re Kushner, supra. There an attorney with an unblemished professional record made a false statement to a court by denying that he had signed promissory notes that were the subject of civil litigation. He had signed a promissory note with his business partner. When the note went into default, respondent’s partner filed a petition for bankruptcy, and respondent falsely claimed that he had not signed or authorized anyone to sign the note on his behalf, *168asserting that his signatures were forged. 101 N.J. at 399, 502 A.2d 32. When the bank instituted legal action to collect the money due on the note, Mr. Kushner persisted in his answer that the signatures were not his.

Unlike respondent in this matter, Kushner pleaded guilty to false swearing pursuant to N.J.S.A. 2C:28-2a. Both respondent and Kushner made false certifications in civil actions for their own benefit, and their misconduct antedated our decision in In re Verdiramo, 96 N.J. 183, 475 A.2d 45 (1984). We suspended Kushner for three years.

Respondent’s conduct also is similar to the conduct of the attorney in In re Schleimer, 78 N.J. 317, 319, 394 A.2d 359 (1978), who falsely testified at a deposition in a civil case in which he was a party. In imposing a one-year suspension in Schleimer, we considered as mitigating factors respondent’s forty years of unblemished legal service and declining practice due to age. Respondent also has been practicing for several years and has not previously been a subject of discipline.

Respondent’s conduct was not as egregious as the conduct of respondent in In re Edson, 108 N.J. 464, 530 A.2d 1246 (1987) (attorney advised his client and an expert witness to lie about evidence in two different matters before municipal courts), nor respondent in In re Bricker, 90 N.J. 6, 446 A.2d 1195 (1982) (attorney obtained title to a number of valuable properties through repeated acts of misrepresentations, some while under oath). Both attorneys were disbarred.

Respondent did not engage in a continuous course of deceitful and fraudulent conduct as did Edson and Bricker. Instead, like Kushner and Schleimer, respondent’s false swearing was limited to one incident.

Nonetheless, respondent’s conduct was more serious than respondent’s conduct in In re Johnson, 102 N.J. 504, 509 A.2d 171 (1986) (attorney who lied to a judge that his associate was ill to secure an adjournment in an ongoing trial was suspended for three months). Respondent’s conduct is more reprehensible *169than that of the attorney in In re McNally, 81 N.J. 304, 406 A.2d 1315 (1979), who forged a sheriffs name to a deed of foreclosure and fraudulently witnessed the instrument. In McNally we suspended the attorney for two years but recognized as mitigating factors respondent’s inexperience, his remorse, and his cooperation with the ethics authorities.

In imposing the appropriate sanction we consider all the relevant circumstances. We recognize that respondent has been a member of the bar for many years, has never been the subject of prior discipline, and that his misconduct arose out of one incident. Nonetheless, his misconduct, deliberately lying under oath in a civil action pursued for his own benefit, directly undermines the administration of justice. Moreover, respondent shows little remorse for his misconduct and appears to fail to understand the gravity of the offense.

The DRB recommends that respondent be suspended from the practice of law for one year. Our dissenting colleague recommends disbarment. We disagree with both. In Kushner, we suspended respondent from the practice of law for three years. We think such discipline is appropriate in this case.

We therefore conclude that respondent should be suspended from the practice of law for three years.

Respondent shall reimburse the Ethics Financial Committee for any administrative costs.

So ordered.

ORDER

It is ORDERED that THOMAS A. LUNN of CAMDEN, who was admitted to the bar of this State in 1960, be suspended from the practice of law for a period of three years, effective March 31,1990, and until the further order of this Court; and it is further

*170ORDERED that THOMAS A. LUNN reimburse the Ethics Financial Committee for appropriate administrative costs; and it is further

ORDERED that THOMAS A. LUNN be restrained and enjoined from practicing law during the period of his suspension; and it is further

ORDERED that THOMAS A. LUNN comply with Administrative Guideline Number 23 of the Office of Attorney Ethics dealing with suspended attorneys.

Effective September 10, 1984, the Rules of Professional Conduct of the American Bar Association, as modified by this Court, govern the conduct of the members of the bar of this State. R. 1:14. Respondent’s actions occurred prior to this date, and are consequently governed by the Disciplinary Rules then in force.