Jennifer Young v. Kenneth R. Davis

STATEWIDE GRIEVANCE COMMITTEE

Jennifer Young, Complainant vs. Kenneth R. Davis, Respondent

Grievance Complaint #00-0886

DECISION

Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on December 5, 2001. The hearing addressed the record of the complaint filed on May 7, 2001, and the probable cause determination filed by the Stamford/Norwalk Judicial District Grievance Panel on September 10, 2001, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on November 1, 2001. At the hearing on December 5, 2001, the Complainant and the Respondent appeared and testified before this reviewing committee. Attorney Christopher Brown represented the Complainant. Attorney Milton Thomas represented the Respondent. Exhibits were admitted into evidence. Reviewing Committee member Thomas McKiernan recused himself from participation in this matter. Accordingly, a copy of the record and the transcript was forwarded to Statewide Grievance Committee member Mary Ellen Smith for review and participation in this decision.

This reviewing committee finds the following facts by clear and convincing evidence:

In May of 1999, the Complainant retained the Respondent to represent her in connection with the purchase of a condominium located in Stamford, Connecticut. The Respondent reviewed the purchase agreement with the Complainant and advised the Complainant regarding her rights and obligations under the agreement. In June of 1999, with the Respondent’s approval, the Complainant signed a contract for the purchase of the condominium for $135,000.00 and tendered a $6,750.00 deposit. The Complainant’s real estate broker held $1,230.00 of the deposit and the $5,520.00 balance was held by the seller in escrow. The sales contract included a mortgage contingency clause with a June 4, 1999 mortgage contingency date. The contract also contained a clause that provided that the agreement could be amended only by written instrument executed by the party against whom enforcement was sought. A contract rider extended the mortgage contingency date to June 30, 1999.

The Complainant did not receive a mortgage commitment by June 30, 1999. The Respondent obtained an extension of the mortgage contingency date to August 13, 1999. The Complainant did not obtain a mortgage commitment by August 13, 1999. The Respondent failed to timely terminate the transaction or obtain an extension of the August 13, 1999 mortgage contingency date. Although the real estate broker returned the $1,230.00 deposit to the Complainant, the seller’s attorney refused to release the $5,520.00 deposit held in escrow.

The Respondent represented the Complainant in an arbitration proceeding with the seller for the return of the Complainant’s deposit, which was unsuccessful. On or about June 8, 2001, the Respondent forwarded a check in the amount of $5,520.00 to Complainant’s counsel with releases.

During the period of representation, the Respondent communicated with the Complainant by telephone and met with the Complainant in his office approximately three times regarding the status of the real estate transaction. The Complainant was informed by the Respondent of changes to the mortgage contingency date.

This reviewing committee also considered the following:

The Complainant contended that the Respondent failed to adequately communicate with her in connection with the real estate transaction. The Respondent testified that he instructed the Complainant to notify him two days prior to the mortgage contingency date regarding the status of her mortgage application. The Respondent testified that he faxed a request for an extension of the August 13^th mortgage contingency date to August 30, 1999 but the seller’s counsel denied receiving the request.

This reviewing committee concludes that the Respondent’s conduct in connection with his representation of the Complainant in a real estate transaction involved a breach of the Rules of Professional Conduct. The Respondent failed to exercise reasonable diligence in representing the Complainant in violation of Rule 1.3 of the Rules of Professional Conduct by failing to obtain an extension of the mortgage contingency date or to timely terminate the transaction upon the Complainant’s inability to secure a mortgage commitment by the August 13, 1999 mortgage contingency deadline. We find that the record lacks clear and convincing evidence of a lack of communication by the Respondent in connection with the real estate transaction. Since we conclude that the Respondent violated Rule 1.3 of the Rules of Professional Conduct, we reprimand the Respondent.

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Attorney Noble Allen

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Attorney Dominick J. Rutigliano

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Ms. Mary Ellen Smith