Professional Responsibility Review 2011
| Citation | Vol. 86 Pg. 201 |
| Pages | 201 |
| Publication year | 2021 |
86 CBJ 201. PROFESSIONAL RESPONSIBILITY REVIEW 2011
Volume 86, No. 3, Pg. 201
September 2012
If one were forced to describe the area of Professional Responsibility in 2011, it would be best described as the proverbial "calm before the storm." There were no landmark court cases involving ethics in 2011 and the grievance committee decisions, although interesting and informative, did not represent a deviation from the norm. Enjoy the calm, however, because the authors expect that the next few years will bring myriad changes to the practice that will result in changes to our ethical obligations as lawyers.
Unknown to many practitioners but necessary for a complete understanding of the process are two points. First, any person can grieve a lawyer; the Rule is clear on that point, it provides "[a]ny person, including disciplinary counsel, or a grievance panel on its own motion," can file a grievance complaint.(fn1) The complainant does not have to be a former or current client or anyone dealt with in a professional capacity, for that matter. Second, once a grievance complaint is filed it cannot be withdrawn. Therefore, as a practitioner, it is paramount that a lawyer do what he or she can in order to avoid having a grievance complaint filed against him or her.(fn2)
A. Statistical Analysis
In 2011, the authors reviewed seventy-three Statewide Grievance Committee decisions, down from the eighty-five reviewed in 2010.(fn3) Those decisions resulted in either findings of misconduct after a hearing or conditional admissions of misconduct pursuant to Practice Book Section 2-82. There were a total of forty-one written decisions of findings of misconduct after a public hearing on the merits. This represents fifty-six percent of the overall dispositions. In addition, there were thirty-two approved Section 2-82 dispositions, representing the remaining forty-four percent of the overall dispositions. As noted in last year's article, following a hearing on the merits, roughly fifty to sixty percent of the matters are dismissed. Thus, there were approximately 150 hearings on the merits last year. That percentage remained the same as it was last year.
In 2011, of the forty-one decisions on the merits, twenty-two resulted in presentments to the Superior Court. Eight decisions resulted in reprimands while twelve resulted in lesser sanctions, including restitution or a requirement to attend Continuing Legal Education (CLE). Of the thirty-two Section 2-82 matters, twelve resulted in presentments,(fn4) eight resulted in reprimands, and twelve were resolved with lesser sanctions. Presentments accounted for forty-six percent of all of the decisions while reprimands constituted twenty-two percent and other sanctions made up the remaining thirty-two percent.
B. Presentment on the Merits
In 2010, two themes dominated presentments. The first theme was centered on the attorney-client relationship and Rules 1.3 and 1.4 while the second revolved around IOLTA accounts and Rule 1.15. In 2011, issues regarding the attorney-client relationship remain high on the list of violations. For example, violations of Rules 1.4 and 1.3 each represented eight percent of all violations. In 2011, violations of Rule 1.15 dropped and the new focal point appears to be Rule 5.5 and the unauthorized practice of law. As in years past, attorneys who violate Rules 8.1, 8.4, and Practice Book Section 2-32, rules which address misconduct and timeliness of grievance responses, were more likely to see their matters result in a presentment to the Superior Court. It is worth repeating that failing to respond to a grievance complaint is a direct slap to the face of disciplinary authorities and one should not be surprised by the harsh sanctions that come with it.
C. Recurring Professional Issues
For 2011, the following Rules had the highest number of violations: Rule 8.4 (Misconduct) with twenty violations, Rule 1.5 (Fees) with fourteen, Rule 8.1 (Bar Admission and Disciplinary Matters; failing to timely respond) with twelve, Rules 1.3 (Diligence) and 1.4 (Communications) with ten each and Rule 5.5 (UPL) with nine violations.
1. Misconduct
A violation of Rule 8.4 was present in seventeen percent of all of the reviewed cases. In those decisions, the Committee concluded that the following conduct was prejudicial to the administration of justice: failing to uphold the duties as trustee and administrator(fn5) and holding oneself out as a licensed attorney when in fact one is not.(fn6) Other violations of the rule included filing a notice of deposition designed to embarrass and harass a private citizen;(fn7) misapplying a client's money orders;(fn8) ordering a transcript, not paying, then promising to "send out a check to you on Tuesday . . ." and not sending the check;(fn9) ignoring a court order to pay a debt;(fn10) providing debt relief services in Connecticut in violation of the consumer finance laws;(fn11) filing an "inaccurate HUD-1 Settlement Statement";(fn12) failing to keep a ward's funds separate from the attorney's or others;(fn13) and inappropriate behavior at a client's home where the attorney in question was involved in an intimate relationship with his client who continues to reside in the marital residence with her soon to be ex-husband.(fn14) In the past, violations of Rule 8.4 were often based on or combined with other Rule violations; for 2011, that was not the case.
A suspended lawyer's failure to inform a bankruptcy attorney of a prior bankruptcy filing, where a petition had been filed by the bankruptcy attorney without disclosing the prior bankruptcy was a violation of Rule 8.4(4).(fn15) At the hearing on this matter, the suspended lawyer made a mis-statement to the Committee when he stated that his partner was "no longer with us."(fn16) The statement was not true. Disciplinary counsel, however, agreed that the statement was not material.(fn17) Based on this misstatement, however, the Waterbury Judicial District Grievance Panel filed a complaint. Probable cause was found on Rules 8.1(1) and (2), 8.4(1), (2), (3), and (4), Practice Book Sections 2-27(d) and 2-32(a)(1).(fn18) Subsequently, the lawyer was reprimanded for violations of Rules 8.1(2), 8.4(1), (3), and (4), and Sections 2-27(d) and 2-32(a)(1).(fn19)
The decision is interesting. Based upon disciplinary counsel's representation in the earlier grievance that the statement was not material, the Committee concluded that there could not be a violation of Rule 8.1(1) or (2) based on the misstatement. Although "material" is mentioned in subsection (1), there is no mention of it in subsection (2). The authors are uncertain as to why the Committee considered materiality as a requirement in subsection (2). The Committee went on to conclude that there was no violation of Rule 8.4(2) or (4) because the statement was not material, it did not constitute a crime, and it was not prejudicial to the administration of justice. Although the first two reasons may withstand scrutiny, the authors take issue with the third because the Committee concluded that the statement about his partner's death was made to gain sympathy with the Committee.(fn20) That being said, the authors wonder how the statement was not material to the imposition of sanctions as the attempt to garner sympathy was clearly material to the sanctions that the Committee was considering. As a result, it should have formed the basis for a violation of 8.4.
Finally, the Committee concluded that because the Respondent was suspended from the practice of law, "we do not think his statements are given the same weight and authority as an active officer of the court. If his license were active, we may have found a misstatement under oath to be prejudicial to the administration of justice without consideration of whether or not it was a material fact."(fn21) That statement is troubling because although the rules of evidence are not strictly applied in disciplinary hearings, the authors believe that all witnesses under oath should be treated equally. In fact, juries are instructed to treat all witnesses equally whether they are policemen, experts, or criminal defendants. There does not appear any basis in the rules for treating a lawyer whose license is suspended differently from one whose license is active. A determination of credibility must necessarily be made on a case-by-case basis as opposed to a bright line rule. In the authors' opinion, the correct analysis involves consideration of whether the statement is prejudicial to the administration of justice regardless of whether it is material and regardless of the status of the lawyer's law license.
2. Fees
The golden rule with respect to fees is spelled out in Rule 1.5: the fee agreement, with limited exceptions, must be in writing and the fees themselves must be both earned and reasonable. The lack of a written fee agreement results in violations of this rule every year and 2011 was no excep-tion.(fn22) The written agreement must communicate to the client the scope of the representation and the basis or rate of the fee and any expenses for which the client would be responsible. Even where you have represented a client in the past, the failure to spell out the terms of your representation, where the terms are substantially different, will likely result in a violation.(fn23) Other violations of the rule occurred where an attorney was paid a retainer yet failed to perform the work for the client(fn24) and where an attorney accepted a flat fee that was both unreasonable and unearned.(fn25) In Larsen v. Kaligian,(fn26) the Respondent accepted a $2,300 flat fee to commence a Chapter 7 Bankruptcy and deal with the Complainant's creditors. In...
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