STATEWIDE GRIEVANCE COMMITTEE
Daniel W. Adelman, Complainant vs. Philip M. Hart, Respondent
Grievance Complaint #01-0320
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 May 8, 2002. The hearing addressed the record of the complaint filed on October 11, 2001, and the probable cause determination rendered by a reviewing committee of the Statewide Grievance Committee on March 22, 2002, finding that there existed probable cause that the Respondent violated Rule 1.15(b) of the Rules of Professional Conduct. The reviewing committee's probable cause determination was contrary to the determination of no probable cause filed by the New Haven Judicial District Grievance Panel for Geographical Area 7 and the Towns of Branford, East Haven, Guilford, Madison and North Branford on January 24, 2002.
Notice of the hearing was mailed to the Complainant and to the Respondent on March 27, 2002. Both the Complainant and the Respondent appeared and testified at the hearing.
This reviewing committee finds the following facts by clear and convincing evidence:
In December of 1996, the Complainant was retained by Mr. Michael Gaudioso to represent him in a domestic matter. The Complainant charged Mr. Gaudioso a flat fee of $2,500.00 for the representation. Mr. Gaudioso was only able to pay the Complainant $200.00 in January of 1997 towards the retainer. At the time the Complainant was retained by Mr. Gaudioso, Mr. Gaudioso's sister, Lisa Gaudioso, had a personal injury lawsuit pending in New Haven, in which she was represented by Attorney Diane Polan. On December 13, 1996, Attorney Polan wrote the Complainant and provided a letter of protection for his fee in the Michael Gaudioso matter from the proceeds of Lisa Gaudioso’s personal injury action.
In 1998, Lisa Gaudioso retained the Respondent to represent her in her personal injury matter in lieu of Attorney Polan. The Respondent settled Lisa Gaudioso's lawsuit in or around November of 1999. At the time of the settlement, the Respondent was aware of Attorney Polan's prior letter of protection to the Complainant, but disbursed to Lisa Gaudioso the entire net proceeds of her settlement, which included the funds due to the Complainant under the letter of protection.
On or around June 9, 2000, the Complainant, unaware that the Gaudioso lawsuit had been settled, wrote to the Respondent and asked for a status regarding his bill and the lawsuit. The letter went unanswered. On May 17, 2001, the Complainant again wrote the Respondent to ask for a status. At that time, the Respondent wrote back to the Complainant indicating that he would discuss the matter with his client. The Complainant thereafter learned that the funds promised in Attorney Polan's letter of protection had been disbursed to the Respondent's client after the settlement of the personal injury lawsuit two years prior.
This grievance complaint followed.
This reviewing committee also considered the following:
The Respondent testified that Lisa Gaudioso instructed him not to pay the Complainant following the settlement of her lawsuit despite the letter of protection. The Respondent testified that his decision to disburse the disputed funds to his client was made after a review of several Connecticut Bar Association informal ethics opinions.
This reviewing committee concludes by clear and convincing evidence that the Respondent violated Rule 1.15(b) of the Rules of Professional Conduct. When the Respondent took over Lisa Gaudioso's lawsuit from Attorney Polan, he took the matter subject to Attorney Polan's letter of protection to the Complainant. That letter of protection clearly protected the fee due to the Complainant for his work on Michael Gaudioso's domestic matter. The Rules of Professional Conduct require the Respondent to safeguard the funds due to the Complainant until such time as there was an agreement between the parties as to their disbursment or a legal decision as to the proper recipient of those funds. The Respondent's decision to turn over the funds to Lisa Gaudioso upon her demand was improper and in violation of Rule 1.15(b). We are also concerned that it took the Complainant approximately two years to discover that the Respondent had disbursed these funds. At the time the Respondent disbursed the funds to Lisa Gaudioso, he was aware of the letter of protection and was required to notify the Complainant of the funds in his possession. We do not approve of the Respondent's silence when asked for the status of Lisa Gaudioso's lawsuit by the Complainant in June of 2000. We also remind the Respondent that the Connecticut Bar Association's ethics opinions are not binding on the Statewide Grievance Committee.
Accordingly, it is the decision of this reviewing committee that the Respondent is reprimanded.
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Attorney Raymond B. Rubens
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Attorney Rita A. Steinberger
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Mr. Thomas J. McKiernan