Opinion
No. CV 05-4009716
January 5, 2006
MEMORANDUM OF DECISION
I
The plaintiff, Paul E. McCarty, appeals from a reprimand issued to him on February 18, 2005 by the defendant, Statewide Grievance Committee. The Committee found by clear and convincing evidence that the plaintiff violated rule 1.4(a) of the Rules of Professional Conduct in that he failed to properly communicate with either Anthony Jones or his family.
II
The following facts and procedural history are relevant to this appeal. The plaintiff was a first-year associate in the law office of Richard Silverstein of New Haven, Connecticut. The complainant, Anthony Jones, a prisoner in the Connecticut Prison System, was given the name of Attorney Richard Silverstein concerning his interest in seeking a sentence modification. A meeting was arranged wherein the plaintiff met with Darlene Silberberg and Marc Jones, an Uncle of Anthony Jones.
When the plaintiff met with Ms. Silberberg and Mr. Jones he advised them about the nature of a sentence modification and indicated that he was not sure how much time could be reduced from the sentence, but that he could "do something." At said meeting the plaintiff accepted a $1,000 retainer on behalf of the Richard Silverstein office.
The sentence modification application was signed on behalf of Richard Silverstein, by his paralegal Ms. Paola Caledro. The sentence modification was denied on June 28, 2002. Anthony Jones was not notified of the status of his sentence modification application and wrote to plaintiff dated November 19, 2002 and January 9, 2003. These letters were not responded to.
In September of 2002 Darlene Silberberg and Marc Jones made an appointment with plaintiff to discuss the case and plaintiff did not arrive at the appointment.
The grievance complaint was filed on July 13, 2003. The grievance panel which first investigated the complaint found no probable cause by decision dated December 15, 2003. Said decision was reversed and a hearing was held by a committee of the Statewide Grievance Committee on July 8, 2004. The Committee found by clear and convincing evidence that the plaintiff violated rule 1.4(a) of the Rules of Professional Conduct and issued a reprimand.
The Committee considered the following as indicated in the record:
During the course of the representation, the Respondent was moved once by the Department of Correction from Walker Correctional Institution to Carl Robinson Correctional Institution. The Complainant notified the Respondent of the address change in his November 19, 2002 letter. In his September 8, 2003 answer to the grievance complaint, the Respondent alleged that the Complainant "changed residences on multiple occasions, creating the dualistic circumstances of this office not being informed of the client's whereabouts and (sic) for purposes of either written or telephonic communications and of the automatic lag created by mail not being forwarded at all or forwarded after lengthy periods of time." At our hearing, the Respondent acknowledged that this claim was exaggerated.
We are also critical of the Respondent for statements made in his September 8, 2003 answer to the grievance complaint. The record was clear that the Complainant only changed addresses once during the representation, not "multiple" times as claimed by the Respondent in his answer. It appears to us that the Respondent made this exaggerated claim in an effort to place blame on the Complainant for the communication problems encountered in this representation. We find such conduct to be inappropriate for an officer of the court.
These considerations among others factored into the Committee's finding of a violation and the sanction imposed.
IV
A hearing was held on the instant appeal on December 7, 2005, where counsel presented oral argument relative to the issues in this appeal. Plaintiff's attorney indicated that the appeal can be determined by the probative question who was the attorney representing Anthony Jones. This inquiry is directed at the plaintiff's defense in this case, in that it is claimed that Richard Silverstein represented Jones not Paul E. McCarty.
In support of this defense, the Plaintiff refers to a letter dated May 9, 2002 sent to Anthony Jones, which indicates that Richard P. Silverstein is representing Anthony Jones. The Committee however, found that even though Richard Silverstein did work on the case, the complainant and his family felt that Paul McCarty was responsible for the case.
The Defendant claims that the record shows that the Committee found that although Richard Silverstein performed substantial work on the case, the complainant was under the impression that the Plaintiff also worked on the case. Also that the complainant sent two letters to Plaintiff one on November 19, 2002 and another on January 9, 2003. The fact that the letters were sent to Plaintiff confirms that Anthony Jones felt that the Plaintiff was representing him. The record also shows that Plaintiff sent a letter to Anthony Jones on March 25, 2003 indicating that the sentence modification was denied.
An attorney-client relationship is established when the advice and assistance of an attorney is sought and received in matters pertinent to his profession. DiStefano v. Milardo, 82 Conn.App. 838.
The record supports the finding of the Committee that even though Richard Silverstein performed some work on the case, Plaintiff also had done work on the case and that Jones and his family were under the clear impression that Plaintiff, an associate in Richard Silverstein's law firm, was also working on the case.
As to the two letters that were sent to him by Anthony Jones, the Plaintiff claims that he did not receive them. It has been held that the mailing of a properly addressed letter creates a presumption of timely notice unless contrary evidence is presented. Daniels v. Statewide Grievance Committee, 72 Conn.App. 203.
It is noted that the paralegal, Paola Calero, might have provided relevant information on this issue however, she was not offered as a witness by either side.
V
The scope of the court's review for statewide grievance committee decisions is very limited. While the Uniform Administrative Procedure Act ("UAPA"), General Statutes § 4-166 et seq., does not apply to the statewide grievance committee, the same principles as to the scope of the judicial review are applicable. Pinsky v. Statewide Grievance Committee, 216 Conn. 228. In reviewing the decision of the statewide grievance committee, the court does not take on the function of a fact finder. Somers v. Statewide Grievance Committee, 245 Conn. 277. Rather, the court's "role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct . . ." (Citation omitted; internal quotation marks omitted.) Weiss v. Statewide Grievance Committee, 227 Conn. 802.
Further, allegations of attorney misconduct must be proven by clear and convincing evidence. Statewide Grievance Committee v. Presnick, 215 Conn. 162. "The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing evidence . . ." (Citation omitted.) Weiss v. Statewide Grievance Committee, supra, 227 Conn. 812. "Clear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the fact in issue in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. The burden is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Brackets omitted; citations omitted; internal quotation marks omitted.) Yamin v. Statewide Grievance Committee, 53 Conn.App. 98.
Connecticut Practice Book § 2-38(f) provides that on appeal, the court shall not substitute its judgment for that of the statewide grievance committee as to the weight of the evidence on questions of fact. Subsection 5 of Connecticut Practice Book § 2-38(f) states that the court shall affirm the decision of the committee unless clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
In reviewing the entire record, the court concludes that the statewide grievance committee's finding that Paul E. McCarty violated rule 1.4(a) of the Rules of Professional Conduct is supported by substantial evidence in the record.
Accordingly, the Plaintiff's appeal is dismissed and the Statewide Grievance Committee's decision is affirmed.
VI
Even though the Court has rendered its above ruling, it notes that at the court hearing held on December 7, 2005 an issue was raised as to the appropriateness of the sanction of a reprimand.
Discussions were had as to if a sanction other than a reprimand was available. Counsel indicated that there is now a process known as a consent order, however that was not available at the time of this case.
The inquiry then made was, if the Court finds the record supports the conclusion that the Plaintiff violated Rule 1.4(a) must it also uphold the reprimand imposed by the Committee. Relative to that inquiry, counsel were asked to file simultaneous briefs on December 21, 2005, which counsel did.
The Plaintiff cites the case of Yamin v. Statewide Grievance Committee, 53 Conn.App. 98, as being on point. However in that case, the trial court and appellate court held that the reviewing committee had failed to establish that the conduct in question established a violation by the required standard of proof. The case did not deal with the sanction imposed by the committee.
Even though the court is sympathetic to the position of the Plaintiff, it agrees with the position taken by the Defendant, that this court on appeal may not retry the case or substitute its judgment for that of the Committee.
Accordingly, the decision of the Committee is upheld and the appeal is dismissed.