STATEWIDE GRIEVANCE COMMITTEE

Alfred Gimmartino, Complainant vs. Ronald L. Lepine, Respondent

Grievance Complaint #01-0396

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, 1 Court Street, Middletown, Connecticut on March 14, 2002.  The hearing addressed the record of the complaint filed on November 2, 2001, and the probable cause determination filed by the New Britain/Hartford Judicial District, Geographical Areas 12 & 16 Grievance Panel on January 24, 2002, finding that there existed probable cause that the Respondent violated Rules 1.4 and 1.16 of the Rules of Professional Conduct, and Practice Book §2-32(a)(1).

Notice of the hearing was mailed to the Complainant and to the Respondent on February 7, 2002.  The Respondent did not appear at the hearing.  The Complainant appeared and gave testimony, and was represented by Attorney Laura Klein.

 The laymember of the reviewing committee, Ms. Mary Ellen Smith, was not available for the hearing. Since the Complainant waived Ms. Smith’s participation, this decision was rendered by the undersigned.

 This reviewing committee makes the following findings by clear and convincing evidence:

On or about May 10, 1996, the Complainant retained the Respondent to represent him in a personal injury claim arising out of a motor vehicle accident on May 8, 1996.  During the course of the representation, the Complainant paid the Respondent a total of approximately $5,000.00, but the Respondent never provided the Complainant with an accounting of the funds, despite being requested to do so by the Complainant.

The Respondent filed a lawsuit on the Complainant’s behalf in 1998 in Hartford Superior Court entitled Gimmartino v. State Wood, Inc., et al. (Docket No. CV98-0580140).  On or about June 18, 1999, the lawsuit was dismissed by the court as dormant.  The Respondent made no effort to open the dismissal.  The Respondent subsequently made no effort to reinstitute the lawsuit under the accidental failure of suit statute.  The Respondent never communicated to the Complainant that the lawsuit had been dismissed.

Throughout 1999 and 2000, the Respondent repeatedly told the Complainant that the lawsuit was “going fine.”  In January of 2001, the Respondent again told the Complainant that the case was “going fine” and was “going to settle.”  Due to problems in communicating with the Respondent, the Complainant had retained Attorney Andrea Melanson on or about May 19, 1998 to inquire of the Respondent as to the status of the personal injury claim.  Attorney Melanson requested file materials, and was told by the Respondent that they would be provided, but they never were.  On numerous occasions between May of 1998 and February of 2001, the Respondent assured Attorney Melanson that the personal injury action was progressing adequately.

On February 1, 2001, with the Complainant present, Attorney Melanson inquired as to whether the Respondent had claimed the personal injury lawsuit to the trial list, to which the Respondent answered affirmatively, adding that there continued to be a settlement offer “on the table.”  On February 9, 2001, Attorney Melanson discovered from the State Judicial website that the lawsuit had been dismissed.  On that same date, she contacted the Respondent, and was told by the Respondent that the website was mistaken, and that the case had not been dismissed.  On February 16, 2001, Attorney Melanson confirmed with the clerk’s office at Hartford Superior Court that the case had been dismissed in June of 1999.

The Respondent did not file an answer to the grievance complaint.

This reviewing committee concludes by clear and convincing evidence that the Respondent violated the Rules of Professional Conduct.  The Respondent violated Rule 1.4(a) by failing to communicate to the Complainant or his representative, Attorney Melanson, as to the status of the lawsuit in general and as to its dismissal in particular.  The Respondent’s failure to file an answer to the grievance complaint constitutes a violation of Practice Book §2-32(a)(1).  Since the reviewing committee does not find that the attorney-client relationship was terminated, it does not find a violation of Rule 1.16.

Given the serious nature of the charges, it is the decision of the reviewing committee that the Respondent be presented to the Superior Court for whatever discipline is deemed appropriate.

Since the presentment will be a trial de novo, it is the recommendation of this reviewing committee that the presentment complaint contain charges that the Respondent violated Rules 1.1 and 1.3 for lack of competence and lack of diligence in allowing the lawsuit to be dismissed; Rule 1.15(b) for failing to account for the Complainant’s funds; and Rule 8.4(3) for misrepresenting to the Complainant and Attorney Melanson the status of the lawsuit.

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Attorney Carl Fortuna, Jr.

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Attorney Lorraine D. Eckert