Professional Responsibility Review 2010
| Publication year | 2021 |
| Pages | 95 |
85 CBJ 95. PROFESSIONAL RESPONSIBILITY REVIEW 2010
Volume 85, No. 2, Pg. 95
June 2011
By far the most interesting information gleaned from the authors' review of the relevant materials for 2010 was that attorneys who tried their grievance cases generally fared worse than their brethren who negotiated and resolved the matter. That observation has led the authors to reach two conclusions. First, the Office of Chief Disciplinary Counsel is actively prosecuting grievance matters. Second, disciplinary counsel is less likely to negotiate a resolution if the alleged rule violation is sufficiently egregious. The decisions, case law, and ethics opinions discussed in this article illustrate and highlight the common ethical pitfalls prevalent in our profession.
After a complaint is filed against an attorney, a local grievance panel determines whether probable cause exists to find a violation of the Rules of Professional Conduct.(fn1) If there is a finding that probable cause does not exist, the complaint is dismissed. That dismissal is not appealable.(fn2) In the event of a probable cause finding by the local grievance panel, the complaint is subsequently heard by a three member reviewing committee from the statewide grievance com-mittee.(fn3) The reviewing committee does not have authority to suspend or disbar an attorney. The reviewing committee has authority, however, to impose a variety of lesser sanctions under Practice Book Section 2-37.(fn4) Where the sanctions under Section 2-37 are not appropriate, the reviewing committee may direct the Office of the Disciplinary Counsel to file a presentment against the attorney in the Superior Court.(fn5) The Superior Court, which hears the presentment de novo, may impose whatever discipline it deems appropriate.
A. Statistical Analysis
In 2010, there were eighty-five reported statewide grievance committee decisions in which there were findings or conditional admissions of misconduct.(fn6) Forty percent of the reviewed decisions were approved proposed dispositions under Practice Book Section 2-82.(fn7) The remaining sixty percent were decided by a written decision following a public hearing on the merits. Following a hearing on the merits, generally fifty to sixty percent of the total decisions are dismissed.
After a finding of probable cause, disciplinary counsel and the respondent may negotiate a proposed disposition of the complaint. Generally, the disposition is based upon an admission of misconduct. That admission can take one of two forms. First, it can be an admission that the material facts are true regarding all or some of the alleged misconduct. Second, it can be an acknowledgement, similar to an Alford plea,(fn8) the respondent does not admit the material facts, but admits that there is sufficient evidence to prove misconduct by clear and convincing evidence.
If the parties reach an agreement, it is reduced to writing and submitted, along with the complaint, the record, and the respondent's affidavit, to a reviewing committee for consideration at a public hearing. If approved, it becomes the committee's decision. If the proposal is rejected, the conditional admission and proposed disposition are withdrawn, not made public, and are not to be used against the respondent in any subsequent proceeding. The matter is then referred to a different reviewing committee for further proceedings.
Nearly one-half of the reviewed decisions were decided on the merits. Forty-one of the eighty-five reviewed decisions resulted in presentments to the Superior Court. Thirty-three of the presentment cases were decided upon the merits.(fn9) In the remaining forty-four reviewed decisions, which involved reprimands or lessor sanctions, the reviewing committee approved twenty-eight proposed dispositions.
The procedural nature of the reviewing committee decisions in which the attorney was sanctioned were roughly divided between decisions on the merits and proposed dispositions under Section 2-82. However, the attorneys who tried their cases on the merits faired less favorably than those who negotiated a resolution. In the authors' opinion, the statistical anomaly is a reflection of the egregious nature of the allegations of misconduct in the presentment cases.
B. Presentments on the Merits
Two themes dominated the scene in the decisions directing that presentments be filed. The first theme concerns the attorney-client relationship. This is demonstrated by the prevalence of violations of Rule 1.3 (Diligence), Rule 1.4 (Communications), and Rule 1.5 (Fees). Findings of misconduct under Rules 1.3 and 1.4, which are commonly found together, occurred in over thirty-three percent of the reviewed presentment cases. Fee violations occurred in thirty-three percent of the decisions directing presentment.
The second dominant theme is more troublesome. It concerns lOLTAs regulated under Rule 1.15 and other financial matters. Insufficient funds on checks issued from the clients funds account alone does not appear to be problematic. Rather, the failure to respond to multiple requests for information regarding the overdraft,(fn10) a prior disciplinary history of poor accounting practices dealing with the clients funds account,(fn11) and failure to make good to a client on the client's funds in the sum of forty-thousand dollars(fn12) were some of the exasperating facts resulting in presentments. Additionally, related matters concerning client property involve a failure to return a retainer or provide a record of any alleged legal work,(fn13) and settling a personal injury case with two insurers, but failing to distribute funds to the client.(fn14)
C. Recurring Professional Issues
The most prevalent violations were of Rules 8.1 (Bar Admission and Disciplinary Matters; failing to timely respond), 1.5 (Fees), 1.3 (Diligence), 1.4 (Communication), 8.4 (Misconduct) and 1.15 (Safekeeping Property).
1. Failure to File a Response to a Grievance Complaint Rule 8.1(fn15) was violated in thirty-three percent of the reviewed 2010 cases.(fn16) Failing to respond to a grievance complaint is misconduct pursuant to Practice Book Section 2-32.(fn17) This failure also runs afoul of Rule 8.1(2) which provides, in part, that a lawyer shall not "knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except this Rule does not require disclosure of information otherwise protected by Rule 1.6." The failure to file a response to the grievance complaint occurred in more than one-half of the cases in which the reviewing committee directed a presentment.(fn18)
It is no coincidence that in matters in which the attorney-respondent ignores a disciplinary complaint, the reviewing committee directs the Office of Disciplinary Counsel to file a presentment. This failure illustrates a lack of respect for the disciplinary and judicial processes. In addition, the conduct reflects poorly on an attorney's overall fitness to practice law because it implicates the lawyer's obligations to be both diligent and competent. By a significant margin, Rule 8.1(2) and the corresponding Practice Book Section 2-32(a)(1) were the most violated rules in the reviewed presentment decisions in 2010.
2. Fees
There are three principles when it comes to fees: they must be reasonable, the fee agreement should be in writing, and the fee must be earned. These principles are set forth in Rule 1.5. This rule was violated slightly more in 2010 than 2009.(fn19) The failure to have a fee agreement with the client was also repeatedly violated under this Rule.(fn20)
The Official Commentary suggests that fee agreements should be provided "before any substantial services are rendered, but in any event not later than ten days after commencing the representation."(fn21)
A failure to have a fee agreement is a violation of this rule.(fn22) A lawyer must inform the client with clarity what services are to be provided, how those services will be charged (i.e. an hourly rate, flat fee or alternative fee), and the nature and amount of the costs for which the client will be responsible. The lawyer must keep the client informed about the cost of the legal services as the representation progresses. The attorney-client relationship should begin with a forthright discussion of legal fees, the client's ability to pay the fees, and the scope of the legal representation. In instances where there was an issue of the reasonableness of the fee, the committee sanctioned the lawyer and ordered the matter be submitted to fee arbitration.(fn23)
3. Diligence and Communication
Like the age old question of what came first, the chicken or the egg, query whether poor lawyering leads to poor communication or vice versa. There is no question, however, that the damage to the integrity of the profession caused by such misconduct is enormous. The failure to pursue the client's legal action, claim or interest arose in an array of representations including a divorce case,(fn24) worker's compensation matters,(fn25) a criminal defense case,(fn26) personal injury cases,(fn27) other civil actions,(fn28) a juvenile defense mat-ter;(fn29) an estate matter,(fn30) and a real estate transaction.(fn31)
Although attorney defalcations are a readily apparent mark on the profession, the failure to serve and protect a client's interest also has a deleterious effect on the profession. Such conduct imposes an undue burden on the profession to reestablish with the public continually the inherent commitment, integrity and good will of most members of the bar and of the judicial process. The authors question the continued resilience of the legal profession to recover from the misconduct of a...
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