Opinion
No. CV 03-0827408
February 16, 2005
MEMORANDUM OF DECISION
In this presentment, the Statewide Grievance Committee (hereinafter "Committee" seeks a judgment imposing discipline on Scott M. Schwartz (hereinafter "Respondent") for violation of Rules 1.3, 1.5(b) and 8.4(4) of the Rules of Professional Conduct as well as for his failure to file an answer to the grievance complaint in violation of Practice Book § 2-32(a)(1).
The respondent was admitted to the Connecticut Bar on November 8, 1983.
The Committee charges that Respondent has been guilty of misconduct involving his character, integrity and professional conduct with respect to two clients, Belinda C. Billue (Billue) and Frances J. Guarrera (Guarrera).
The first count of the Amended Complaint dated June 25, 2004 (adding a second count to the original complaint dated July 22, 2003), alleges that Billue engaged respondent on or about November 4, 1999 to represent her in two foreclosure matters and one civil suit for which she paid him two retainers totaling $4,287, that he failed:
(1) to provide Billue with a written fee agreement in violation of Rule 1.5(b);
(2) to respond to frequent communications from his client between meetings on May 9 and June 28, 2000; on July 21 and August 24, 2000; on November 13 and December 20, 2000; and August 2001 and January 2002;
(3) that in one foreclosure action, Respondent failed to respond to a possible purchaser which might have prevented the foreclosure;
(4) that in the second foreclosure Respondent failed to obtain the signature of Billue's husband on a deed transferring the property by sale to a perspective purchaser, although the sale had been previously ordered by this court, or to advise Billue in a timely fashion to obtain other counsel to see that the court order was carried out, both in violation of Rule 1.3;
(5) that in response to a small claims judgment obtained by Billue against him to recover her loss in an action for the recovery of the deposit by the prospective purchaser, Respondent failed to comply with the judgment requiring him to pay $35/weekly, in violation of Rule 8.4(4);
(6) to respond to the grievance complaint filed against him by Billue in violation of Practice Book § 2-32(2)(1).
In the second count of the amended complaint, the Committee alleges that in August 1999, Guarrera retained Respondent to represent him in a dental malpractice case; that Respondent commenced suit in April 1999; that the case was dismissed on May 3, 2002 for failure to prosecute with diligence; that Respondent met with Guarrera on May 31, 2002 and told his client that the case was proceeding and should be concluded in a few months; that on September 12, 2002, Respondent filed a motion to re-open the judgment of dismissal which was denied; that after Respondent's motion to reargue was granted and scheduled to be heard on December 2, 2002, Respondent failed to appear and the judgment of dismissal was reaffirmed; that thereafter, Respondent failed to respond to his client after receiving a certified letter of inquiry, all in violation of Practice Book §§ 1.3, 1.4(a); 1.4(b) and 8.4(3).
Many of these allegations were admitted in a stipulation of facts dated October 28, 2004, and at the trial which took place on October 28, November 3, and November 10, 2004 Respondent did not seriously contest the truth of most of the other allegations and admitted that some of them amounted to violations of the Code.
However, Respondent offered the following defenses:
In the case of the second Billue foreclosure, any failure on his part to complete a sale was not serious because the remedy which the foreclosure amounted to virtually the same result as the sale and partition ordered by the court. However, Billue testified forcibly that for reasons which appeared to be valid, she had engaged Respondent specifically to avoid the stigma of the foreclosure and was not satisfied with the result because of the possible effect on her credit rating and because it was not in accord with the court order. It is concluded that because Respondent failed to exercise reasonable efforts to accomplish this result he violated Rule 1.3 — failing to act with reasonable diligence in representing a client.
Respondent's major claim is that during the period between January 2001 and January 2003, he suffered from a major depression that interfered with his nightly sleep and affected his work habits, so that he discarded or was not cognizant of, many court notices and client communications, including those relevant to this presentment.
This claim was buttressed by Dr. Lawrence Goldstein, a psychiatrist who started treating Respondent on January 6, 2003 after a distress call from Respondent's wife late in 2002. Dr. Goldstein listed his symptoms, ranging from weight gain and insomnia to diminished ability to concentrate and short term memory loss and concluded that Respondent at that time was suffering from depression. He opined that, Respondent was at that time not capable of carrying out the responsibilities of an attorney; however, that after a period of treatment involving primarily the prescription of anti-depressant medicines, the ability of Respondent to practice was and is now restored.
Respondent's brother, Attorney Jeffrey Schwartz testified that he observed Respondent to be withdrawn and irritable during the summer of 2002, that he became aware of Respondent's difficulties with the Committee in August 2003, that he became involved in reorganizing Respondent's law office procedures and that he considers Respondent capable of carrying on his law practice in a professional manner at this time.
In Statewide Grievance Committee v. Fountain, 56 Conn.App. 375 our Appellate Court stated:
An attorney is admitted to the practice of law on the implied condition that the continuation of this right depends on remaining a fit and safe person to exercise it. In re Peck, 88 Conn.
While Respondent undoubtedly suffered from depression during long periods in 2000 through 2002, his admitted violations, failing to obtain a written retainer agreement with Billue (§ 1.5b), failure to keep his client informed (§ l.4a), and failure to pay the small claims judgment (§ 8.44) (later satisfied by execution) are hardly excused by his illness. This is certainly the case with his admitted violations of his responsibilities to Guarrera; failure to act with reasonable diligence (§ 1.3) and failure to keep his client informed (§ 1.4(a). When Respondent told Guarrera that the case was proceeding to conclusion, even though he knew the case had been dismissed — indeed, he had petitioned for reargument — he engaged in dishonest conduct in violation of Rule 8.4(3).
In addition to these violations it is claimed and not denied that Respondent failed to pay in a timely fashion the Clients Security Fund fee 2001 and 2002, for which he was briefly suspended from his law practice on March 18, 2002 and April 14, 2003.
It is found, by clear and convincing evidence that Respondent violated Rules 1.3, 1.5(b) and 8.4(4) of the Rules of Professional Conduct.
In Statewide Grievance Committee v. Fountain, supra the Appellate Court stated:
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. In re Durant, 80 Conn. 140, 147, 67 A. 497 (1907). Id. pp. 377, 378.
The Committee has recommended that Respondent be suspended for three years. The Court was impressed at the trial that Respondent fully understands the seriousness of the violations and with the support of his family and watchful intervention of his physician, is likely to avoid the lack of attention and the aberrant behavior exhibited by him during the period of his depression in 2000, 2001 and 2002.
However, although his violations were not motivated by personal gain, they are not minor and are not isolated occurrences. Moreover, Respondent knew his behavior was becoming aberrant and had the duty to seek help at an earlier time. See: Office of Disciplinaiy Counsel v. Zingarelli, 81 Ohio St. 3d 86, 689 N.E.2d 545 (1998).
It is therefore ordered that:
(A) Respondent's license to practice law is suspended for a period of eighteen (18) months;
(B) At the termination of the 18 months suspension, Respondent may apply for re-admittance having shown (1) proof of passing the Multistate Ethical and (2) evidence that the small claims judgment in favor of Ms. Billue has been fully paid; and (3) that he has complied fully with the treatment plan of Dr. Goldstein and that he is considered capable of practicing law in a professional manner.
(C) Readmission is subject to the discretion of the panel appointed to review his application, and would, if granted, require the filing of semi-annual reports of compliance with the medical treatment plan for an additional period of eighteen months.
BY THE COURT
WAGNER, JTR