Richard Mazza, Executor of the Estate of Henry Mazza, Robert L. Mazza v. William Bieluch

STATEWIDE GRIEVANCE COMMITTEE

Richard Mazza, Richard Mazza, Executor of the Estate of Henry Mazza, Robert L. Mazza, Complainant vs. William Bieluch, Respondent

Grievance Complaint #01-0393

DECISION

Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on April 3, 2002, July 10, 2002, October 9, 2002, December 11, 2002, May 14, 2003 and July 8, 2003. The hearings addressed the record of the complaint filed on November 1, 2001, and the probable cause determination filed by the Stamford/Norwalk Judicial District Grievance Panel on February 20, 2002, finding that there existed probable cause that the Respondent violated Rules 1.5(b), 1.7(a) and (b), and 1.8 (a) and (c) of the Rules of Professional Conduct.

Notice of the hearings was provided to the Complainants and to the Respondent. The April 3, 2002 hearing was continued due to the lack of a quorum. The May 14, 2003 hearing was continued at the request of the Respondent. The Complainant Robert Mazza was represented by Attorney Mark Carta. The Complainant Richard Mazza was represented by Attorney Joseph Richichi. The Complainant Richard Mazza, as Executor of the Estate of Henry Mazza, was represented by Attorney Steven Ayres. The Respondent was represented by Attorney Kevin M. O’Grady from December 11, 2001 until March 20, 2002. The Respondent was represented by Attorney Edward N. Lerner from March 20, 2002 until May 5, 2003. The Respondent was represented by Attorney Ridgely Brown commencing May 14, 2003. The Complainants and the Respondent testified at the hearings. This reviewing committee also heard testimony from Donna Rajczewski and Attorney Heather Brown. Exhibits were admitted into evidence.

Reviewing committee member Attorney Christopher Carveth recused himself during the course of the proceedings. Statewide Grievance Committee member Attorney Dominick J. Rutigliano was substituted for Attorney Carveth and reviewed a complete copy of the record, including the applicable transcripts and exhibits, prior to participating in the decision of this case.

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

The Respondent was the longtime attorney for Henry Mazza, the father of the Complainants and their brother, Terry Mazza. Henry Mazza operated The Sugar Bowl, a Darien restaurant, and the building in which the restaurant was located. Over the course of several years, Henry Mazza, with the Respondent’s assistance, deeded portions of the commercial property and the restaurant to his sons. Henry Mazza’s intent was that his sons would operate the restaurant after his death. To that end the Respondent assisted Mr. Mazza in the preparation of a Modification Agreement in January of 1996, which was signed by Richard Mazza. The Modification Agreement placed a restriction on the property deeds previously distributed. The Modification Agreement prohibited the transfer of any ownership interest in the Darien property “without the consent of all of the owners of record of the property. . . .” The Respondent also accepted a quit-claim deed dated November 4, 1997 from Henry Mazza that conveyed a one-eighteenth portion of the Darien property to the Respondent for “love and affection

Henry Mazza died on April 11, 1999. The Complainant Richard Mazza, was named as the executor of Henry Mazza’s estate. The Respondent was retained to represent Richard Mazza in the probate of Henry Mazza’s estate, but did not provide Richard Mazza with a fee agreement. In 2000, the Respondent represented all of the Mazza sons in the eviction of tenants at the Darien property. The Respondent did not inform Richard Mazza or any of Henry Mazza’s sons of the deed that conveyed a portion of the Darien property to him.

After their father’s death, the Complainants decided to sell the Darien property. Terry Mazza objected. In 2001, litigation ensued among the brothers to partition the property. In light of his prior representation of Henry Mazza, and to effectuate his wish regarding the continued operation of The Sugar Bowl, the Respondent had recorded the Modification Agreement on the Darien Land Records on November 4, 1999. The Respondent did not inform the Complainants that he had recorded the Modification Agreement, although Richard Mazza expected that the Modification Agreement would be recorded at some time after he signed it. In furtherance of Henry Mazza’s wishes, the Respondent recorded the quit-claim deed to him from Henry Mazza on April 30, 2001. The deed was misplaced by the Darien town clerk’s office. The Respondent thereafter filed an affidavit on the land records on May 16, 2001 with a copy of the deed that he had previously recorded. The Respondent did not inform the Complainants that he had recorded the deed.

This reviewing committee concludes by clear and convincing evidence that the Respondent violated Rules 1.5(b) and 1.7(b) of the Rules of Professional Conduct. With regard to our findings relative to Rule 1.5(b) of the Rules of Professional Conduct, we conclude that the Respondent failed to have a fee agreement with Richard Mazza after being retained to represent Richard Mazza in the probate matters surrounding Henry Mazza’s estate. There was no evidence that the Respondent regularly represented Richard Mazza prior to his retention for the probate work. Certainly the Respondent did not regularly represent Richard Mazza in his official capacity as the executor of his father’s estate. We conclude that the Respondent was required to provide Richard Mazza with a written understanding of the scope of the representation and the fees to be charged. The Respondent’s failure to have a fee agreement violated Rule 1.5(b) of the Rules of Professional Conduct.

With regard to our findings relative to Rule 1.7(b) of the Rules of Professional Conduct, we conclude that there is clear and convincing evidence that the Respondent’s representation of Henry Mazza’s sons and Richard Mazza as executor of his father’s estate conflicted with the Respondent’s own interests because the Respondent was a one-eighteenth owner in the Darien property. The Respondent had accepted that interest in furtherance of Henry Mazza’s wish that his sons continue operating The Sugar Bowl and not sell the property. The Respondent never disclosed the existence of the deed or its recording to the Complainants although he represented them and the deed’s existence was potentially adverse to their interests. The Respondent also failed to notify the Complainants that he had recorded the Modification Agreement. The Respondent’s failure to comply with the required conflict resolution directive of Rule 1.7(b) was improper.

We do not find clear and convincing evidence regarding the other probable cause findings. We do not find clear and convincing evidence that the Respondent’s representation of the Complainants or any of Henry Mazza’s sons was directly adverse to any other client and in violation of Rule 1.7(a) of the Rules of Professional Conduct. Also, there was not clear and convincing evidence in the record that the Respondent violated Rule 1.8(a) or (c) of the Rules of Professional Conduct. With regard to Rule 1.8(a) of the Rules of Professional Conduct, we do not believe that the Respondent was involved in a “business transaction” with either Henry Mazza or the Complainants. While the deed to the Respondent from Henry Mazza might, in other circumstances, have violated Rule 1.8(c), we conclude that the Complainants did not provide clear and convincing evidence that the Respondent prepared the deed such that we could find a violation of the rule.

The Respondent is reprimanded for violating Rules 1.5(b) and 1.7(b) of the Rules of Professional Conduct.

Attorney Raymond B. Rubens

Attorney Dominick J. Rutigliano

Mr. William Carroll