Ebenezer
Caines, Complainant vs. Louis Avitabile, Respondent
Grievance
Complaint #02-0185
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,
One Court Street, Middletown, Connecticut on March 13, 2003. The hearing addressed the record of the
complaint filed on August 21, 2002, and the probable cause determination filed
by the Waterbury Judicial District Grievance Panel on November 22, 2002,
finding that there existed probable cause that the Respondent violated Rules
1.3 and 7.5 of the Rules of Professional Conduct.
Notice
of the hearing was mailed to the Complainant and to the Respondent on February
4, 2003. At the hearing, the Complainant and the Respondent appeared and
testified. Leslie Green appeared and
testified on behalf of the Complainant. In accordance with a subpoena issued by
this reviewing committee, Attorney Meryl Spat also appeared and testified at
the hearing.
This
reviewing committee finds the following facts by clear and convincing evidence:
The
Complainant retained the Respondent's law firm in or about October of 1996 to
represent him in an employment related personal injury matter. Attorney Allan B. Rubenstein had previously
represented the Complainant. At the
request of the Complainant, Attorney Rubenstein forwarded the Complainant's
file to the Respondent on January 22, 1997.
The Complainant signed a retainer agreement dated October 23, 1996 with
the Law Firm of Louis S. Avitabile and Meryl Anne Spat. The retainer agreement read, inter alia, that
by signing the agreement the Complainant retained the Law Firm of Louis S.
Avitabile and Meryl Anne Spat. The
retainer was signed by Attorney Spat.
The
Complainant telephoned the Respondent's office on a periodic basis and spoke
with the Respondent. During those
conversations, the Complainant demanded to know when his lawsuit was going to
trial. At times the Respondent advised
the Complainant that his matter was progressing. On other occasions the Respondent advised the
Complainant to telephone at some other time. The Respondent did not advise the
Complainant that Attorney Spat left the firm in 1997. In July of 2002, the
Complainant went to the Respondent's office to demand the return of his
file. For the first time, the Respondent
advised the Complainant that he did not have the file and explained that Attorney
Spat had left the office in April of 1997 and took the Complainant's file with
her. The Respondent subsequently advised
the Complainant that upon further investigation he had found the Complainant's
file in his office.
On
or about August 16, 2002, the Complainant went to the Respondent's office and
was given the opportunity to look at his file.
When the Complainant requested to take the file, the Respondent's
secretary advised him to return the following week for copies. On or about August 23, 2002, the Complainant
returned to the Respondent's office to retrieve his file. At that time, the Complainant was given a
portion of his file. After the
Complainant told the Respondent that he did not receive the entire file, the
Respondent subsequently provided the Complainant with additional documents on
or about August 26, 2002.
The
Respondent was aware there were problems with the dissolution of the business
relationship between himself and Attorney Spat and the division of clients
between the two attorneys. The
Respondent also knew that there had been other instances of confusion as to
which clients’ files were left with the Respondent and which files were taken
by Attorney Spat. Notwithstanding his awareness of these problems, the
Respondent did not go through his files to ascertain whether there were other
clients’ files left at the firm of which the Respondent was unaware.
The
Respondent's discipline history includes six prior reprimands and two instances
where conditions were imposed as a result of the Respondent's professional
misconduct.
This
reviewing committee also considered the following:
Attorney
Spat testified that when she left the Respondent's office in April of 1997, she
took her clients' files, the majority of which were social security disability matters.
Attorney Spat testified that she did not remember the Complainant and did not
take the Complainant's file when she left the firm. Attorney Spat further testified that she did
not at any time represent the Complainant.
The
Respondent testified that he did not represent the Complainant, though he
conceded that he knew the Complainant and spoke with him on several occasions
on the telephone and at his office. The
Respondent also testified that he and Attorney Spat were not partners. The
Respondent explained that he and Attorney Spat shared office space for which he
paid the rent, utilities and payroll.
The Respondent further explained that he and Attorney Spat had a
fee-splitting agreement whereby the fees earned by each individual attorney
were split evenly.
There
is insufficient evidence in the record to conclude by clear and convincing
evidence that the Respondent's conduct violated Rule 1.3 of the Rules of
Professional Conduct. We are aware of
the fact that five years passed between the Complainant’s retention of the Law
Firm of Louis S. Avitabile and Meryl Anne Spat and the firing of the
Respondent, however, it is not clear from the record before us which attorney
dropped the ball in the Complainant’s matter.
It is troubling, however, that the Respondent
failed to investigate the status of the Complainant's case, especially
considering the Complainant’s repeated telephone calls and the Respondent's
knowledge that there were problems in the manner in which the Respondent and
Attorney Spat dissolved the firm. We are
highly critical of the manner in which the Respondent responded to the
Complainant's inquiries and strongly suggest that the Respondent proactively
search his clients' files to determine whether there are any other outstanding
matters of which he is unaware.
This
reviewing committee further concludes that the Respondent's representations in
his letterhead and retainer agreement stating "The Law Firm of Louis S.
Avitabile and Meryl Anne Spat" implied a partnership between the two, when
in fact none existed, in violation of Rule 7.5(d) of the Rules of Professional
Conduct. In deciding the appropriate
discipline to impose upon the Respondent, this reviewing committee took into
consideration the Respondent’s extensive grievance history that includes five
(5) reprimands imposed by a reviewing committee of the Statewide Grievance
Committee, one (1) reprimand imposed by the court (Wiese, J.), and two
occasions when the Respondent was ordered to complete three (3) credit hours of
a continuing legal education course in an unsuccessful effort to rehabilitate
the Respondent’s misconduct. Accordingly, we order the Respondent presented to
the Superior Court for whatever discipline the court deems necessary. Because a presentment is a trial de novo, we
further order that the presentment complaint contain an allegation that the
Respondent violated Rule 1.5(e) of the Rules of Professional Conduct by
engaging in a fee-splitting arrangement with Attorney Spat without the advice
and consent of the Complainant.
_________________________________
Attorney
Carl Fortuna
___________________________________
Attorney
___________________________________
Ms. Johanna Kimball