Opinion
CV166033234S
11-15-2017
OFFICE OF CHIEF DISCIPLINARY COUNSEL v. Paul NIESOBECKI
UNPUBLISHED OPINION
OPINION
Agati, J.
This action was commenced by the Office of the Chief Disciplinary Counsel as an action of presentment of attorney against the respondent, Paul Niesobecki. Mr. Niesobecki was admitted to the Connecticut Bar on June 7, 1991. This presentment is proceeding with three counts against the respondent. On September 25, 2017, the parties filed a stipulation whereby the respondent admitted various violations of the Code of Professional Responsibility as to each count as follows: as to Count One, the respondent admitted misconduct in violation of Rule 8.4(4); as to Count Two, the respondent entered an " Alford" admission to a violation of Rule 8.4(3) and as to Count Three, respondent entered an " Alford" admission to a violation of Rules 1.8(a)(2), 1.8(a)(3) and 8.4(3). The stipulation further indicates that although the respondent has entered admissions to these misconduct allegations, he reserves the right to argue disposition to the court.
Argument regarding disposition took place before the court on September 27, 2017. The nature of the misconduct allegations against the respondent all relate to the respondent approaching clients, former clients and mediation clients, regarding making loans and investments in real estate transactions which the respondent was promoting. The respondent approached all the individuals solicited from a position of authority and trust as having been or presently being their attorney and counsel. He approached these individuals indicating that he was seeking loans for real estate investments. He did not provide the individuals with any documents to support the details of the real estate investments. His approach to these individuals was to offer high interest payments on their loan investment. The return was promised to be made in a short period of time from when the loan was made. He offered to each individual an unsecured promissory note which he signed and guaranteed. He did not advise these individuals to seek review of the documents by independent counsel and/or representation. The individuals trusted his advice and recommendations on these investments. The individuals were also not provided with a written waiver of any conflict of interest by the respondent regarding these transactions. The reality is that the alleged real estate transactions did not exist and that the respondent was defrauding these individuals into making these " loans."
Count Two of the presentment is a conglomeration of multiple claims that were before the Danbury Judicial District grievance panel. The claims entail several cases where individuals filed civil actions against the respondent to obtain payment of the loan amounts provided to the respondent which corresponded with promissory notes that the respondent executed. In those civil actions the individuals claimed that the respondent failed to pay them back the amount that he borrowed from them, as well as any interest due pursuant to the terms of the promissory notes. In several of the matters, judgments entered against the respondent which remain unsatisfied. Other cases are pending where judgments have not been obtained to date.
As to Count One, the claim of Matthew Bednarz, Mr. Bednarz appeared and testified before the court. In summarizing his testimony, he had been represented by the respondent in a divorce action. Bednarz was then approached by the respondent, knowing that Mr. Bednarz had made a substantial financial payment to his ex-spouse in the divorce proceeding, advising him of this real estate opportunity where he could make a substantial financial gain to make up for his loss from the divorce settlement. Bednarz testified that he believed that the respondent was protecting his interests as his attorney and agreed to the loan transaction. When the respondent defaulted on paying the Mr. Bednarz loan, Mr. Bednarz commenced a civil action against the respondent in which a stipulated judgment was entered in the amount of $32, 302.95.
As to Count Three, the claim of Nicholas Forte, Mr. Forte appeared and testified before the court. In summarizing his testimony, he indicated that he practiced in the Waterbury area as a licensed chiropractor. He had engaged the respondent as his attorney to represent him in his business. The respondent also represented Mr. Forte in his divorce proceedings. Once again, Mr. Forte made substantial financial concessions in his divorce action. The respondent subsequently approached Mr. Forte about investing in a real estate opportunity. Again representations were made about obtaining a lucrative return on his investment with the respondent. Mr. Forte invested with the respondent and in return was provided a promissory note executed by the respondent. When the note became due, the respondent defaulted. Mr. Forte’s testimony was that he entered into this investment because the respondent had represented to him that he could not lose and that there would be a substantial financial gain. Mr. Forte has a collection action pending against the respondent in Waterbury Superior Court which is awaiting default judgment to enter. The amount of Mr. Forte’s investment with the respondent, which included funds he withdrew from retirement accounts, amounted to $130, 000.00.
An admission to a violation of Rule 8.4(4) is to engage in conduct that is prejudicial to the administration of justice. An admission to a violation of Rule 8.4(3) is to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. An admission to a violation of Rules 1.8(a)(2) and 1.8(a)(3) involve the prohibition of entering into business transactions with clients and/or former clients in which the attorney fails to advise said individuals about the opportunity to seek advice of legal counsel in the transaction and the failure to provide said individuals with written consent of the attorney’s role in the transaction.
The court must determine what sanction is to be imposed upon the respondent.
The court is guided by precedent established by our Supreme Court.
In Burton v. Mottolese, 267 Conn. 1, 835 A.2d 998 (2003), the Supreme Court established the guidelines by which the court is to proceed in determining an appropriate sanction in a disciplinary proceeding.
The purpose of a sanction is the following:
" [a] court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession." Thus, " [a] court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what the sanction should be."
[Internal quotation marks, citations omitted.] Id., 54.
The Court went on to note the use of and approval by the trial court of the American Bar Association’s Standards for Imposing Lawyer Sanctions (Standards):
The Standards provide that, after a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorney’s mental state; (3) the potential or actual injury stemming from the attorney’s misconduct; and (4) the existence of aggravating or mitigating factors. A.B.A., Standards for Imposing Lawyer Sanctions (1986) standard 3.0, p. 25; see also Briggs v. McWeeny, supra, 260 Conn. 333-34. The Standards list the following as aggravating factors: " (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; [and] (j) indifference to making restitution." A.B.A., Standards for Imposing Lawyer Sanctions, (1986) standard 9.22, p. 49. The Standards list the following as mitigating factors: " (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses." Id., standard 9.32, p. 50.Id., 55-56.
The court has had an opportunity to review the record, to consider the arguments of counsel, and to review the post-trial briefs filed by the parties.
Bearing in mind the American Bar Association’s Standards for Imposing Lawyer Sanctions the court finds the following: the nature of the duty violated was a duty owed to Attorney Niesobecki’s clients, to the profession and to the administration of justice; there has been no evidence provided regarding Attorney Niesobecki’s mental state and therefore the court will find that his acts were intentional and the injury stemming from his misconduct were substantial financial losses to each of the individuals that he defrauded.
Bearing in mind the Standards as set forth above, the court will balance the aggravating factors with the mitigating factors regarding Attorney Niesobecki.
The aggravating factors for Attorney Niesobecki are the following: prior disciplinary offenses; dishonest or selfish motive; a pattern of misconduct; multiple offenses; vulnerability of victim and substantial experience in the practice of law.
The mitigating factors for Attorney Niesobecki are the following: full and free disclosure to disciplinary board or cooperative attitude toward proceedings; timely good faith effort to make restitution or to rectify consequences of misconduct and remorse.
The court taking all these factors into consideration enters the following orders regarding the respondent, Paul Niesobecki:
1. The court orders a suspension from the practice of law for two (2) years commencing on December 1, 2017.
2. Prior to readmission the respondent is ordered to take and complete one (1) course on legal ethics and professional responsibility. Proof of completion of the course is to be provided to the Disciplinary Counsel and the court.
3. The court orders the respondent to pay restitution to Mr. Bednarz in the amount of $32, 302.95. This amount must be paid prior to the respondent seeking to apply for readmission.
4. The court orders the respondent to pay restitution to Mr. Forte in the amount of $130, 000.00. This amount must be paid prior to the respondent seeking to apply for readmission.
5. The court orders the respondent to satisfy all judgments that were referenced in Count Two as enumerated in the Danbury Grievance Panel complaint. These amounts must be paid prior to the respondent seeking to apply for readmission.
6. Pursuant to Practice Book Section 2-53(a), the court will retain jurisdiction of this matter regarding the readmission of the respondent to the practice of law. Should the respondent fulfill all the obligations that the court has ordered, he may apply for readmission no sooner than December 1, 2018.
7. The court appoints Attorney Thomas L. Brayton, III, of Waterbury, Connecticut as trustee during the respondent’s period of suspension to wind down the respondent’s law practice.