Anthony Amabile v. Rebecca Johnson

STATEWIDE GRIEVANCE COMMITTEE

Anthony Amabile, Complainant vs. Rebecca Johnson, Respondent

Grievance Complaint #02-1215

DECISION

Pursuant to Practice Book §2-35, the undersigned, duly appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 300 Grand Street, Waterbury, Connecticut on April 6 and May 4, 2004. The hearings addressed the record of the complaint filed on August 29, 2003, and the probable cause determination filed by the New Haven Judicial District Grievance Panel for the towns of Bethany, New Haven and Woodbridge on December 30, 2003, finding that there existed probable cause that the Respondent violated Rule 1.4 of the Rules of Professional Conduct and Practice Book §2-32(a)(1). The hearings also addressed this reviewing committee’s additional probable cause determination filed on March 24, 2004, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.16(d) of the Rules of Professional Conduct.

Notice of the hearings were mailed to the Complainant and to the Respondent on March 1 and March 26, 2004, respectively. The Complainant and the Respondent appeared and testified. Yale Law School Lawyering Ethics Professor Attorney Barbara Cantrell and Yale Law School Student Interns Jennifer Peresie and Derek Smith represented the Complainant. Matthew Benoit and Attorney Michael Bozzuto testified on behalf of the Complainant. Two exhibits were admitted into evidence.

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

The Complainant retained the Respondent to represent him on or about December 2, 2001 to bring an employment discrimination claim against his former employer. The Complainant paid the Respondent a $750 retainer. The Respondent prepared a complaint dated February 19, 2002 and filed it with the Connecticut Commission of Human Rights and Opportunities (hereinafter referred to as the “CHRO”). Thereafter, the CHRO forwarded the complaint to the Equal Employment Opportunity Commission (hereinafter referred to as the “EEOC”) for processing.

In April of 2002, the EEOC contacted the Complainant by letter. The Complainant brought the letter to the Respondent. The EEOC’s letter advised that it needed additional information to process the complaint. The letter requested that the Complainant provide additional information in the form of an in-person interview or in the form of a questionnaire that the EEOC enclosed with the letter. The EEOC’s letter counseled the Complainant that if the additional information was not received within thirty days, the claim could be dismissed. On or about May 30, 2002, the Respondent requested that the EEOC send pages that were missing from the questionnaire. On or about June 24, 2002, the EEOC complied with the Respondent’s request. The Respondent never returned a completed questionnaire to the EEOC.

Beginning in April of 2002, the Complainant began experiencing difficulty communicating with the Respondent. Becoming frustrated with the Respondent’s failure to return his messages, the Complainant contacted Attorney Earl Williams with whom the Respondent shared office space. Attorney Williams arranged for the Complainant to meet with the Respondent and himself. The Complainant’s cousin, Matthew Benoit, attended the meeting between the Respondent, the Complainant and Attorney Williams in or around April of 2002. During the meeting, the Respondent assured the Complainant that his case was proceeding. In May of 2002, the Complainant again began having difficulties communicating with the Respondent. In September of 2002, the Respondent was suspended from the practice of law for a period of one year. The Respondent did not notify the Complainant that she was suspended from the practice of law.

On February 24, 2003, the EEOC sent notice to the Respondent that it dismissed the Complainant’s claim because the requested information had not been provided. The dismissal notice advised the Respondent that if the Complainant wanted to pursue the matter further, a lawsuit would have to be filed in federal court within ninety days of the date of the notice. The Respondent failed to advise the Complainant that his claim had been dismissed and the Respondent did not perform any additional work on behalf of the Complainant. The statute of limitations in relation to the Complainant’s claim expired on or about May 5, 2003.

In June of 2003, the Complainant left a voice mail message terminating the Respondent’s representation, demanding the return of the retainer, and requesting the return of his file. On June 7, 2003, the Complainant went to the Respondent’s law office and retrieved his file. The Respondent refused to return the retainer that the Complainant paid. When the Complainant reviewed his file, he discovered that his claim had been dismissed on February 24, 2003. The Complainant subsequently hired Attorney Michael Bozzuto to represent his interests in regard to his discrimination claim. Thereafter, the Complainant filed a grievance complaint against the Respondent. The Respondent did not answer the grievance complaint.

This reviewing committee also considered the following:

Mr. Benoit testified that he had attended the meeting in April of 2002 with the Respondent, the Complainant and Attorney Williams. Mr. Benoit confirmed that the Respondent had assured the Complainant that she was pursing his discrimination complaint.

The Respondent testified that she made numerous requests in writing and by telephone to the EEOC asking it to send the missing pages of the questionnaire sent to the Complainant in April of 2002. The Respondent maintained that she met with the Complainant once she received the entire questionnaire and that together they completed the form. The Respondent also claimed that she faxed the completed questionnaire to the EEOC in or around July of 2002. The Respondent denied not returning the Complainant’s telephone calls and asserted that she would produce telephone records showing the numerous telephone calls between herself and the Complainant and showing her attempts to contact the EEOC. The Respondent accused the Complainant of fabricating facts and asserted that he withheld documents from his file in order to cover up his fabrications.

The Respondent also testified that when she was placed on suspension, she notified the Complainant. The Respondent asserted that the Complainant agreed to have Attorney Williams represent him during the Respondent’s suspension and that the file was thereafter turned over to Attorney Williams. The Respondent stated that when she contacted the EEOC to ascertain the status of the Complainant’s claim, they advised her that the file had been misplaced. The Respondent further testified that the EEOC confirmed in writing that the file had been misplaced and that the letter was in the Complainant’s file when he retrieved it. The Respondent further indicated that when she learned that the Complainant’s claim had been dismissed, she met with Attorney Williams and the Complainant to discuss the dismissal.

The Respondent explained her failure to answer the grievance complaint was because she could not formulate an answer without the file and that she did not retain a copy of the Complainant’s file prior to returning it to the Complainant.

The Complainant denied having ever discussed the possibility of Attorney Williams taking over his file and he denied being told that the Respondent was suspended from the practice of law. The Complainant adamantly stated that the Respondent did not return his telephone calls and did not keep him informed of the status of his claim. The Complainant further contended that he turned his entire file over to Attorney Bozzuto and that he did not withhold any documents.

Because the Respondent steadfastly asserted that she had numerous communications in writing with the EEOC, and that documents were missing from the record that could exonerate her, this reviewing committee requested that Attorney Bozzuto appear on May 4, 2004 and produce a copy of the Complainant’s entire file. This reviewing committee also afforded the Respondent the opportunity to submit the telephone records she alluded to in her testimony that would show the numerous telephonic communications she had with the Complainant and the EEOC.

On May 4, 2004, the Respondent, Attorney Bozzuto and Attorney Cantrell convened on the record and reviewed the Complainant’s original file and exchanged copies thereof. A copy of the Complainant’s file was also provided to this reviewing committee and became part of the record. The file produced by Attorney Bozzuto contained no additional correspondence between the EEOC and the Respondent in the form of letters, notes or facsimiles. There was no correspondence in the file from the EEOC corroborating the Respondent’s assertion that the EEOC had misplaced the Complainant’s file. The file contained the entire questionnaire sent by the EEOC to the Respondent. The only copy of the questionnaire in the file was entirely blank.

Notwithstanding the Respondent’s offer of proof regarding the telephone calls between herself, the Complainant, and the EEOC, the Respondent failed to produce any telephone records.

This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:

This reviewing committee concludes that the Respondent violated Rule 1.3 of the Rules of Professional Conduct. The record contains clear and convincing evidence that the Respondent initiated and then abandoned the Complainant’s claim before the EEOC. The Respondent was retained in December of 2001 to pursue a claim of discrimination. The Respondent was contacted by the EEOC in April of 2002 and advised that additional information was needed in order to investigate the Complainant’s claim. The Respondent advised the EEOC that pages of the questionnaire were missing and, on or about June 24, 2002, a complete questionnaire was forwarded to the Respondent. Thereafter, the Respondent performed no work in furtherance of the Complainant’s claim. Moreover, the Respondent’s misconduct resulted in an injustice to the Complainant in that his claim before the EEOC was abandoned. More troubling is that the appeal period was allowed to expire, thereby sacrificing any recourse the Complainant may have had to preserve his claim. The Respondent has demonstrated an acute lack of diligence in her representation of the Complainant.

In addition, this reviewing committee concludes that the Respondent violated Rules 1.4(a) and (b) of the Rules of Professional Conduct. The Complainant attempted to contact the Respondent on numerous occasions to inquire as to the status of his claim and the Respondent repeatedly failed to respond to the Complainant’s inquiries. The Respondent was obligated to provide a timely and accurate response to the Complainant’s inquiries and failed to do so, in violation of Rule 1.4(a) of the Rules of Professional Conduct. Further, the Respondent became aware that the Complainant’s claim had been dismissed on or about February 24, 2003 and that the appeal period would expire on or about May 5, 2003. During this period, the Respondent neglected to inform the Complainant of the dismissal and failed to advise him that he had ninety days in which to appeal. This information was essential to the Complainant’s ability to make an informed decision regarding his discrimination claim. The Respondent’s misconduct violated Rule 1.4(b) of the Rules of Professional Conduct.

This reviewing committee also concludes that the Respondent violated Rule 1.16(d) of the Rules of Professional Conduct by failing to return the unearned portion of her fee once she was advised that the Complainant no longer wanted the Respondent to represent him. The Complainant paid the Respondent $750 to prepare and pursue a claim before the EEOC on his behalf. The record contains evidence that the Respondent met with the Complainant on a few occasions and that the Respondent drafted and filed a complaint. After April of 2002, the record is barren of any evidence that the Respondent performed services on behalf of the Complainant. In light of the minimal amount of work performed by the Respondent on behalf of the Complainant, this reviewing committee concludes that the fee paid to the Respondent were unreasonable. Therefore, the Respondent’s refusal to return the unearned fee upon her dismissal violated Rule 1.16(d) of the Rules of Professional Conduct.

Practice Book §2-32(a)(1) requires that the Respondent file an answer to the grievance complaint within thirty days. Failure to file a timely answer to the grievance complaint constitutes misconduct. The Respondent was unable to provide a reason for her failure to respond to the grievance complaint. Therefore, this reviewing concludes that the Respondent’s failure to answer the grievance complaint was without good cause and violated Practice Book §2-32(a)(1).

In deciding the appropriate discipline, this reviewing committee considered the Respondent’s extensive history of professional discipline. The Respondent’s grievance history indicates that the Respondent has repeatedly engaged in misconduct and has been unable or unwilling to rehabilitate herself. The Respondent has been reprimanded on five occasions and has been ordered presented to the Superior Court five times. The Respondent’s misconduct resulted in a suspension from the practice of law for a period of one year. The Respondent’s extensive grievance history exacerbates her misconduct in this instance. This reviewing committee finds that the Respondent's violations of the Rules of Professional Conduct and the Practice Book, in addition to her constitute serious misconduct and warrant the imposition of discipline. Accordingly, we order the Respondent presented to the Superior Court for the imposition of whatever discipline the Court deems appropriate.

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Attorney Frederick N. Krug

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Attorney M. Katherine Webster-O'Keefe

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Reverend Meredith Payton