Opinion
No. CV-05-4012328S
November 1, 2006
MEMORANDUM OF DECISION
The Statewide Grievance Committee (Committee) filed a presentment of attorney for misconduct, pursuant to Practice Book § 2-47(a), against the respondent Rebecca L. Johnson (Johnson) on June 28, 2005 alleging violations of Rules of Professional Conduct 1.3, 1.4(a), 1.4(b) and 1.16(d), as well as a violation of Practice Book § 2-32(a)(1). Johnson did not file an answer to the allegations contained in the presentment but appeared for a hearing before this court on August 4 and 24, 2006. The allegations arise from a complaint made against Johnson by Anthony Amabile (Amabile).
In support of the presentment, the Committee called Johnson as a witness and offered the transcripts of the proceeding before the referring reviewing committee on April 6, 2004 (ex. 1) and on May 4, 2004 (ex. 2). Certain facts are not disputed: In December 2001, Amabile discussed retaining Johnson to represent him regarding a claim of employment discrimination based on disability. A retainer agreement was signed and Amabile paid $750.00 to Johnson. Thereafter, in February 2002, Johnson prepared and submitted a complaint to the Connecticut Commission on Human Rights and Opportunities (CHRO) which she understood would be forwarded to the Equal Employment Opportunity Commission (EEOC) in Boston for investigation. On April 24, 2002, the EEOC advised Amabile by letter that it needed additional information and that he could request a questionnaire within 30 days. Johnson requested a questionnaire on Amabile's behalf but the EEOC provided an incomplete document. On June 24, 2002, the EEOC faxed 18 pages to Johnson which apparently included the missing pages. In July 2002, Johnson learned that she had been disciplined in Docket No. CV-01-0378603, Statewide Grievance Committee v. Johnson, and was to be suspended from the practice of law for one year starting on September 1, 2002. On February 24, 2003, the EEOC sent a letter to Johnson that it was closing Amabile's file for failure to provide requisite information and failure to cooperate in the investigation. Amabile had ninety days from that date to file a lawsuit either in state or federal court. No such suit was filed on his behalf. Amabile requested that Johnson return the retainer of $750.00, but she did not do so.
Johnson disputes the authenticity of the one page of a purported retainer agreement introduced in the proceedings before the referring committee but does not dispute that there was a written retainer agreement and that Amabile paid her $750.00.
The court's decision is dated June 28, 2002, but it appears that notice was sent on July 17, 2002 (ex. 8).
The court finds the following additional facts based on the credible evidence, including Amabile's transcribed testimony under oath at the reviewing committee hearing. When Amabile received the April 24, 2002 letter from the EEOC he met with Johnson and gave it to her. According to Amabile, Johnson said she would take care of it. Amabile then did not talk with Johnson for several months although he tried to contact her numerous times with limited success. The next time that Amabile met with Johnson was in the spring of 2003 at the offices of Attorney Earl Williams when there was a discussion about filing a lawsuit. According to Amabile, he was not aware, at that time, that the EEOC had dismissed his claim on February 24, 2003 and did not learn about the dismissal until approximately May or June 2003 when he picked up his file from Johnson's former office. Johnson maintains that Amabile was aware of the dismissal in sufficient time to file a lawsuit. Johnson also admits that Amabile called her repeatedly, especially in late 2002, and advised her that he was not satisfied and had not heard anything from the EEOC.
The court continued this hearing until August 24, 2006 in order to provide Johnson with an opportunity to subpoena Amabile to testify. At the August 24, 2006 hearing petitioner's counsel represented that Amabile was residing out of state. Johnson then objected to the court's reliance on Amabile's sworn transcribed testimony on due process grounds claiming she lacked an opportunity to cross-examine him. Johnson was present at the April 4, 2004 reviewing committee hearing and was offered an opportunity to cross-examine Amabile at that time (ex. 1).
"In presentment proceedings, the statewide grievance committee must prove by clear and convincing evidence that the attorney misconduct it alleges has occurred. (Citations omitted.)" Statewide Grievance Committee v. Whitney, 227 Conn. 829, 838, 633 A.2d 296 (1993). In this case, the Committee alleges that Johnson violated Rule 1.3 by failing to "represent Amabile with reasonable diligence and promptness," that she violated Rule 1.4(a) by failing to keep him "reasonably informed about the status of his matter and promptly comply with his reasonable requests for information," that she violated Rule 1.4(b) by failing "to explain Amabile's matter to the extent reasonably necessary to permit him to make informed decisions regarding the representation," and that she violated Rule 1.16(d) by failing "to refund advance payment of her $750 fee that had not been earned upon termination of her representation" of Amabile. The Committee also alleges that Johnson has violated Practice Book § 2-32(a)(1) by failing to file a timely response to Amabile's complaint.
Under the terms of Rule 1.3, a lawyer has "a duty to carry the case though to a conclusion, unless the [lawyer-client] relationship was terminated" pursuant to the terms of Rule 1.16. Statewide Grievance Committee v. Gifford, 76 Conn.App. 454, 463, 820 A.2d 309 (2003). The commentary to Rule 1.3 provides that a "lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer . . ." When Johnson received a full questionnaire from the EEOC, on June 24, 2002, she was obliged to ensure that it was returned within the deadlines that the EEOC set. Although Johnson testified that she returned the questionnaire to the EEOC, the evidence clearly proves otherwise. Her failure to respond with reasonable diligence and promptness in this administrative matter amounts to a violation of Rule 1.3. See Statewide Grievance Committee v. Friedland, 222 Conn. 131, 137-38, 609 A.2d 645 (1992). Johnson had an obligation to Amabile to pursue his claim, or advise him of her inability to do so, notwithstanding any distractions arising from her personal circumstances or her views that the EEOC was obstructing the processing of his claim.
Under the terms of Rule 1.4, Johnson was obliged to keep Amabile reasonable informed about the status of the proceedings before the EEOC and to provide him with "sufficient information to participate intelligently in decisions concerning the objectives of the representation." Johnson, however, ignored Amabile's case for a considerable period of time, failed to return telephone calls and, although admitting that she was aware that Amabile had not heard anything from the EEOC in late 2002, failed to advise Amabile of any steps he could take or that could be taken on his behalf to ascertain the status of his case before the EEOC or that she held the opinion that the EEOC was obstructing the processing of his claim. Most significantly, Johnson failed to immediately advise Amabile that the EEOC had dismissed his claim on February 24, 2003 so that he could timely file a lawsuit to preserve his claims. These failures amount to a violation of Rule 1.4. See Id. at 138.
Since Johnson failed to take even the most minimal steps to ensure that Amabile's claim was properly presented to the EEOC, she did not earn the advance fee of $750.00 that Amabile had paid to her. Accordingly, she violated Rule 1.16(d) by failing to return Amabile's advance payment of $750.00 because it had not been earned. The final allegation before the court is that Johnson violated the provisions of Practice Book § 2-32(a)(l) which requires the subject of an attorney grievance complaint to respond to the allegations within thirty days of the date notification is mailed. The rule further provides that "failure to file a timely response shall constitute misconduct unless the respondent establishes that the failure to respond timely was for good cause shown." The Committee has failed to introduce sufficient evidence to support this allegation by the appropriate standard and it is dismissed.
The transcript of the committee hearing on April 6, 2004, ex. 1, contains the only evidence as to this allegation. Respondent testified that she failed to respond because she did not get the complaint in a timely manner and she did not have the file in order to formulate a response which caused her some concern that she might be accused of falsifying evidence.
Having found that the committee has established that Johnson violated three of the Rules of Professional Conduct by clear and convincing evidence, the court must next consider the appropriate sanction pursuant to Practice Book § 2-47(a).
An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited . . . Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. (Citation omitted; internal quotation marks omitted.)
Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995). Connecticut courts use the American Bar Association's Standards for Imposing Lawyer Sanctions as a guide to determining appropriate disciplinary sanctions. Burton v. Mottolese, 267 Conn. 1, 55, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). "The Standards provide that, after a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorneys mental state; (3) the potential or actual injury stemming from the attorneys misconduct; and (4) the existence of aggravating or mitigating factors." Id.
With regard to the first three considerations, in this case it has been demonstrated that Johnson violated two of the fundamental duties that an attorney owes to a client — reasonable diligence and reasonable communication. While the court cannot conclude that she acted wilfully, she was clearly negligent in not pursuing Amabile's claim and in allowing her personal situation to distract her from her responsibility to her client. Amabile suffered actual injury as a result of Johnson's misconduct because he was unable to pursue his claim either administratively or through the courts.
The A.B.A Standards list a number of aggravating and mitigating factors. The relevant aggravating factors in this case are prior disciplinary offenses, a pattern of misconduct, multiple offenses, refusal to acknowledge wrongful nature of conduct and substantial experience in the practice of law. A.B.A Standards for Imposing Lawyer Sanctions, (1986) standard 9.22(a), (c), (d), (g), and (i). The relevant mitigating factors in this case are the absence of a dishonest or selfish motive and personal problems. Id., standard 9.32(b) and (c).
As to the relevant aggravating factors, Johnson has a significant history of disciplinary actions taken against her including complaints for violating the Rules of Professional Conduct at issue in this case. She has been reprimanded five times. Ex. 3, 4, 5, 6, 7. On two occasions, in 2002 and 2004, in two separate judicial districts, she has been suspended from the practice of law upon presentments to the Superior Court. Ex. 8, 9. Indeed, as the evidence established in this case, the first suspension occurred while Johnson was representing Amabile and was a considerable distraction to her. Johnson's pattern of ethical failings dates back to at least 1997. Nonetheless, in this proceeding, Johnson was not only unwilling to acknowledge that she did anything wrong but sought to blame the EEOC for her ethical failings. Finally, at the time Johnson's ethical violations occurred in this case she had been in practice for almost ten years.
On November 4, 1999, Johnson was notified of a reprimand for violating Rules 1.3 and 1.4(a). On January 16, 2004, Johnson was notified of a reprimand for violating Rule 1.4(a). On June 28, 2002, Johnson was suspended for a period of one year for violating, among other rules, Rules 1.3, 1.4 and 1.16(d).
As to the relevant mitigating factors, there is no evidence that Johnson had a dishonest or selfish motive and there is evidence that she was distracted from properly representing Amabile as a result of the pending grievance proceeding against her and the notice of suspension she received. However, the latter factor does not excuse what appears to be an entrenched pattern of inattention to ethical considerations and an inability to properly manage her law practice. It is this entrenched pattern which is deeply disturbing to the court and justifies a period of suspension for the proven ethical violations.
Accordingly, the respondent Rebecca L. Johnson is suspended from the practice of law for a period of eighteen months. This suspension shall commence upon the conclusion of the suspension ordered in Statewide Grievance Committee v. Johnson, Judicial District of New Haven, Docket No. CV-04-4000920 (October 29, 2004, Robaina, J.). It is further ordered that the respondent shall apply for readmission pursuant to the provisions of Practice Book § 2-53 and, as conditions of consideration for readmission, she shall demonstrate recent participation in a continuing legal education course in professional ethics specifically including Connecticut's Rules of Professional Conduct of a minimum of three hours and a continuing legal education course in the area of law office management of a minimum of three hours and she shall have taken and passed, within three years immediately preceding her application for readmission, the Multistate Professional Responsibility Examination.