Professional Responsibility Review 2014
| Publication year | 2021 |
| Pages | 24 |
Kimberly A. Knox and Brendon P. Levesque, J. [*]
We are all aware, or should be aware, of the old adage regarding the perils of assuming things. As lawyers we thoroughly prepare for every matter whether it is a trial or a business transaction. We study all of the law that applies to the matter before us and we never assume that the other side is right. Sometimes, however, lawyers assume things that get them in trouble later. For example, never assume that you have sufficient funds in your IOLTA to cover a check because one client told you that he lost the check that you gave him. Murphy's Law says that he will find and cash the check that day leaving you with an overdraft. Also, never assume that reading something once is sufficient. The authors were certain about what the three-strikes rule in Practice Book § 2-47(d) meant. After a second and third pass through the language and some additional thought, the authors still think their original interpretation is correct, but recognize that there is an argument to be made to the contrary.
I. STATEWIDE GRIEVANCE COMMITTEE
A. STATISTICAL ANALYSIS OF 2014
In 2014, the 118 decisions issued by the Statewide Grievance Committee ("SGC") either full hearings on the merits or hearings after a conditional admission of misconduct pursuant to Practice Book Section 2-82 reveal the following on both sanctions and merits. Sixty-nine (58%) of the matters were dismissed while some form of discipline was imposed in the other forty-nine cases (42%).[1] The dismissal rate falls within the 50-60% observed over the last five years.
Of the forty-nine disciplinary actions, the following is a breakdown of the discipline based on whether the decision was a Practice Book Section 2-82 disposition or followed a hearing on the merits. We consider "conditions only" to be discipline.
Breakdown of Decisions by Type & Sanction
Total Discipline
2-82 Dispositions[2]
On the Merits
Presentment
27/49
15/32
12/17
Reprimand + Conditions
4/49
2/32
2/17
Reprimand Only
8/49
6/32
2/17
Conditions Only
10/49
9/32
1/17
Total
49
32
17
In 2014, the most common rules violations were 1.1 (Competence), 1.3/1.4 (Diligence/Communications), 1.15 (Safekeeping of Property), 8.1 (Bar Admission and Disciplinary Matters, failing to timely respond); and 8.4 (Misconduct). Rule 1.3 and 1.4 so frequently arise together that they were tabulated as one category. The top rules violations remained constant from the preceding year.[3] The discipline for these rules violations is set forth below.
Top Rule Violations
1.1
1.3/1.4
1.15
8.1
8.4
Presentment
5
10
10
9
12
Reprimand +
0
1
0
1
3
ReprimandOnly
1
1
0
0
2
ConditionsOnly
0
3
0
0
4
Total Rule Violations in Cases with Discipline
6
15
10
10
21
Something the authors noticed this year is that twenty-five cases were heard by more than one reviewing committee.[4] This generally occurs when the initial reviewing committee rejects a Proposed Disposition pursuant to Practice Book Section 2-82 and the matter is assigned to a new reviewing committee for a hearing, which can delay the process. Across all 2014 grievances resulting in discipline, the average time from filing of the complaint to a decision was 265 days—or about nine months. The longest wait was 461 days (or about fifteen months).[5] And the shortest wait was 100 days (or about three months).[6]
B. TOP PROFESSIONAL ISSUES IN 2014
The profession continues to be plagued by a constant trickle of dishonest or incompetent lawyering. On the more blatant side, a lawyer in a real estate closing representing the sellers was directed to pay off their outstanding mortgage from the proceeds of the closing, but failed to do so. Needless consequences covering a span of years resulted, including a foreclosure action against the new buyers, who in turn brought a civil action against the sellers, who in turn filed an action against the responsible lawyer. A judgment of default and a monetary award eventually entered against the lawyer. This unethical conduct tainted the profession in the eyes of the public and resulted in a presentment.[7] In another case, failure to pay a judgment in a small claims legal malpractice case warranted a reprimand.[8]
Lawyers may also be held accountable for the larcenous conduct of their employees.[9] In one case, a lawyer's legal assistant stole over $10,000 in client funds. It came to light when the client—who believed her case was still pending— found out it had settled four years earlier. Lawyers have a duty under Rule 5.3 to "make reasonable efforts" to ensure that their employees comply with the rules of ethics. Here, the SGC found that the attorney's failure to account adequately for client funds, and his egregious delay in informing the client of her case's resolution,[10] constituted a lack of reasonable effort. Somewhat troubling, however, is the Committee's parting observation that although "it does appear that the Respondent was unaware of the larcenous acts of [his assistant]," nevertheless, "that the signature [on the settlement agreement] was photocopied" meant that he "ratified" the assistant's acts under Rule 5.3(3)(A).[11] The difficulty is that Rule 5.3(3)(A) expressly requires that an attorney have "knowledge of the specific conduct" in order to ratify it.
Taking risks with IOLTA accounts is another constant source of trouble for lawyers. In one case, an attorney wrote a check to a client from the attorney's IOLTA immediately upon receiving the money but a couple days before depositing it into the IOLTA.[12] He believed the check would be covered by the funds of another client, who had lost her check and needed the attorney to re-issue one to her. To the attorney's surprise, the second client found her check that day, which bounced when she tried to cash it.
The case would be a mundane Rule 1.15 violation were it not for what followed. When Disciplinary Counsel investigated the overdraft and requested the attorney's individual client ledgers, the attorney refused "because he frequently represents undocumented immigrants and did not want to disclose either their names or financial transactions to a governmental authority."[13] This earned him a violation of Rule 8.1 for failing to respond to Disciplinary Counsel's request and a presentment to the Superior Court for discipline—the most severe punishment the SGC can impose. The Committee noted that "[t]here is no undocumented immigrant exception" to Disciplinary Counsel's right to audit an attorney's IOLTA.[14] Of note, Rule 1.6 did not justify the attorney's conduct because it expressly permits disclosure of confidential client information to comply with "other law or court order" and Practice Book Section 2-27(c), which requires attorneys to allow audits of their IOLTAs by the SGC.
Several grievance decisions this year dealt with the unauthorized practice of law. Although the authors have previously discussed arrangements constituting the unauthorized practice of law in another state,[15] such cases are usually too egregious to provide much guidance.[16] This year, that changed slightly. In Kowalski v. Rabel, a Pennsylvania law firm retained a New York law firm as "of Counsel" which, in turn, hired a Connecticut attorney as an "Associate" so that the Pennsylvania firm could practice in Connecticut.[17] The network of law firms had a computer program that allowed its members to access and coordinate efforts on case files.[18]The Connecticut attorney received a guaranteed fee of $75 to make an initial "compliance call" and to "monitor the [Pennsylvania firmj's initial actions" on the case.[19]
The SGC held that the Pennsylvania firm engaged in the unauthorized practice of law in Connecticut. Rule 5.5 generally forbids practicing in another state but makes limited exceptions, including where temporary legal services "are undertaken in association with a lawyer who is admitted to practice in [Connecticut] and who actively participates in the matter." [20] Here, the Connecticut attorney had provided minimal assistance, if any. Moreover, the Committee noted that it was unaware of any authority "which permits a non-Connecticut attorney to directly perform legal work for a Connecticut client under the type of 'attorney counsel network utilized" here.[21] At issue was the Pennsylvania firm's faxing of several forms directly to the client for signing as well as sending demand letters directly to the client's mortgage company.[22] Nevertheless, on its face Rule 5.5 does authorize the direct provision of legal services, provided that Connecticut co-counsel "actively" participates.
In another matter, an attorney who was not licensed in Connecticut took a $5,600 retainer to defend a foreclosure matter pending in the Connecticut Superior Court.[23] A judgment of strict foreclosure entered, which was eventually stayed through no help of the lawyer. The lawyer could not represent the client in Connecticut and should never have asked for or accepted money from the client. The SGC found violations of Rules 5.5, 8.1, 8.4 and Practice Book Section 2-32 and ordered a reprimand and restitution. The decision was also forwarded to the Chief State's Attorney, because the unauthorized practice of law constitutes a criminal violation.
Finally, two grievance decisions turned on—or perhaps, should have turned on—crucial procedural issues. In the first, the...
To continue reading
Request your trial