STATEWIDE GRIEVANCE COMMITTEE

 

Kathleen C. Clement, Complainant vs. Stephen N. Schaffer, Respondent

 

Grievance Complaint #04-0472

 

DECISION

 

Pursuant to Practice Book ß2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on October 13, 2004.† The hearing addressed the record of the complaint filed on May 19, 2004, and the probable cause determination filed by the Stamford/Norwalk Judicial District Grievance Panel on August 10, 2004, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.5(a), 1.15(b), 1.16(d) and 8.4(3) and (4) of the Rules of Professional Conduct, as well as Practice Book ß2-32(a)(1).[1]† The hearing also addressed the additional finding of probable cause issued by this reviewing committee on September 10, 2004, finding that there existed probable cause that the Respondent violated Rule 8.1(2) of the Rules of Professional Conduct.

 

Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on August 30, 2004.† Pursuant to Practice Book ß2-35(d), Assistant Disciplinary Counsel Patricia A. King pursued the matter before this reviewing committee. Attorney King was assisted by law student interns Liana G.T. Wolf, Praveen S.N. Krishna and Ruza Z. Afram from the Yale Law School Lawyering Ethics Project.† The Complainant did not appear at the hearing, but indicated by letter dated October 5, 2004 that she was unable to attend due to family obligations.† The Respondent appeared at the hearing and gave testimony.

 

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

 

The Complainantís husband died on August 15, 2000.† On September 12, 2000, the Complainant hired the Respondent to handle the administration of her husbandís estate and paid the Respondent $1500 for his anticipated work in the probate matter.† The Complainant sent several bills and other documents to the Respondent to facilitate his work in the probate matter.

 

On November 3, 2000, the Complainant paid the Respondent another $75 to draft a will for her.† The Respondent drafted the will and the Complainant signed it.† The Respondent provided the Complainant with a copy of the will and placed the original in a bank vault.† During the following months, the Complainant telephoned the Respondent several times regarding the status of the probate matter, but the Respondent did not return the Complainantís telephone calls.

 

In 2002, the Complainant telephoned the Respondent several times in relation to the probate matter, in particular the registration for her husbandís vehicle.† The Respondent repeatedly assured the Complainant that he would complete the necessary paperwork to transfer ownership of the vehicle to her.† The Complainant telephoned the Respondent two weeks before the registration was set to expire, and the Respondent informed the Complainant that the paperwork would not be ready.† The Respondent advised the Complainant to renew the registration in her husbandís name by submitting the registration documentation without a signature.† The Complainant did as the Respondent advised.† The Respondent, however, did not advise the Complainant that in order to change title to the vehicle, she must provide the Department of Motor Vehicles with an assignment of the title to the vehicle and a certified copy of the appropriate probate documents identifying the administrator of the estate.

 

In 2003, the Complainant attempted to contact the Respondent to request a refund of the $1500 for the probate matter given that she had received no updates from the Respondent in almost two years.† The Complainant was unable to reach the Respondent by telephone and, therefore, went to the Respondentís office.† Other tenants in the office building informed the Complainant that the Respondent had moved out of the office and that they did not know where she could find him.† The Complainant thereafter discovered that the Respondent had not filed any paperwork with the probate court in relation to the administration of her husbandís estate.† She then filed the necessary paperwork to initiate the probate proceedings herself.

 

In March of 2004, the Complainant successfully contacted the Respondent, who told her that he could not refund the $1500 as he was unemployed.† However, he told the Complainant that he would return the original will to her.† As of the October 13, 2004 hearing, the Respondent had not done so.

 

The Respondent did not file a written response to the grievance complaint.

 

This reviewing committee also considered the following:

 

At the hearing, the Respondent admitted that the allegations in the grievance complaint were true, that he did not perform the probate work as requested by the Complainant, that his fee was excessive and that he violated the rules as indicated in the probable cause findings.† He testified that the Complainantís original will is located in a bank vault and that he was unable to pay the Complainant as he only recently began working again.† Finally, the Respondent acknowledged that he did not file an answer to the grievance complaint.

 

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

 

By failing to provide the Complainant with competent representation in relation to the probate matter, the Respondent violated Rule 1.1 of the Rules of Professional Conduct.† Rule 1.1 of the Rules of Professional Conduct provides, in relevant part:† ďCompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.Ē The lack of legal knowledge and preparation on the Respondentís behalf is clearly evident upon review of the record.† The Respondent improperly advised the Complainant regarding the registration of her husbandís vehicle.† The Complainant trusted that the Respondentís suggestion was appropriate and followed his advice.† Most importantly, the record is clear that the Respondent did absolutely no work to advance the probate matter in the approximately three years that he represented the Complainant.† In fact, the Respondent failed to file the initial paperwork with the probate court.† The Respondent provided no justification or reason for his conduct.† Moreover, the Respondent led the Complainant to believe that he had been working on the probate matter when, in fact, he had not.† We note that the Complainant was left to file the necessary paperwork with the probate court herself approximately three years after she retained the Respondent to do so.

 

The Respondent violated Rule 1.2(a) of the Rules of Professional Conduct by failing to abide by the Complainantís decision concerning the objective of the representation.† The Respondent was hired to probate the Complainantís husbandís estate.† The Respondent failed to do anything to achieve this objective in the three years that he represented the Complainant.† In addition, the Respondent misled the Complainant into believing that he would process the necessary paperwork to successfully transfer owner of her husbandís vehicle to herself.† However, the Respondent did not complete this paperwork and, instead, advised the Complainant to attempt to accomplish the same goal without submission of the proper paperwork.† The Respondentís conduct as detailed above also clearly constituted a failure to act with reasonable diligence and promptness in representing the Complainant in the probate matter in violation of Rule 1.3 of the Rules of Professional Conduct.

 

By failing to respond to the Complainantís requests for updates regarding her case, the Respondent violated Rule 1.4(a) of the Rules of Professional Conduct.† The Complainant left telephone messages for the Respondent seeking status updates for the probate matter; however, the Respondent did not respond to the Complainantís messages.† The Respondent neither denied such conduct nor provided any explanation for his failure to respond to the Complainantís requests.† The Respondent also violated Rule 1.4(b) of the Rules of Professional Conduct by failing to advise the Complainant as to the true status of the probate matter, thereby preventing her from making informed decisions regarding how to proceed with the case.† At no point did the Respondent advise the Complainant that he performed no work on the probate matter.† In fact, he led her to believe otherwise.† If the Respondent had provided the Complainant with accurate status updates on the probate matter, then she may have retained new counsel to properly pursue the matter or she may have filed the paperwork herself at a much sooner date than she did.

 

The Respondent charged the Complainant an unreasonable and excessive fee for the probate matter, in violation of Rule 1.5(a) of the Rules of Professional Conduct.† The Complainant paid the Respondent $1500 to probate her husbandís estate.† However, the Respondent did not file the necessary paperwork to probate the estate and, in fact, did no work on the probate matter.† As such, the Respondent did not earn any of the $1500 paid by the Complainant.† Thus, the Respondentís retention of the entire fee was clearly improper.

 

We also find that the Respondent failed to safeguard the unearned fee of $1500 that the Complainant paid to him at the outset of the representation, in violation of Rule 1.15(b) of the Rules of Professional Conduct.† The Respondent was obligated to safeguard the fee until such time as he earned all or any portion of that amount in legal fees.† He did no work in the probate matter and, therefore, was obligated to return the entire fee to the Complainant given that no portion of it was earned.† His failure to do so is inexcusable.

 

The Respondent also violated Rule 1.16(d) of the Rules of Professional Conduct.† First, he did not confirm the termination of the representation with the Complainant in writing before or within a reasonable time after the representation was terminated.† In fact, the Respondent did not advise her that he closed his office, and he left no contact information behind.† Second, he failed to provide the original will to the Complainant, despite her request for such after the representation was over and despite his assurance that he would provide it to her.† Third, as detailed above, the Respondent failed to return the entire retainer, which was unearned, to the Complainant upon termination of the representation.

 

By engaging in conduct constituting fraud, deceit, dishonesty and/or misrepresentation, the Respondent violated Rule 8.4(3) of the Rules of Professional Conduct.† The Respondent admitted that he did no work in the probate matter, and he did not dispute that he led the Complainant to believe that he had been working on the matter and that he failed to return her telephone calls for status updates on the matter.† Incredibly, the Respondent provided no justification or reason for his conduct.† We are deeply concerned that the Complainant had to initiate the probate matter herself after retaining the Respondent to do so almost three years earlier.† Additionally, the Respondent failed to provide the Complainant with the original will despite assuring her that he would do so.† We also find that the Respondentís failure to perform any work to advance the probate matter while leading the Complainant to believe that he was in fact working on the matter constituted conduct prejudicial to the administration of justice in violation of Rule 8.4(4) of the Rules of Professional Conduct.

 

The Respondentís failure to answer the grievance complaint was without good cause in violation of Practice Book ß2-32(a)(1) as no evidence of good cause was presented to this reviewing committee.† The Respondent admitted that he did not submit a written response to the grievance complaint, but provided no reason or justification for his conduct in this regard.† We also find that the Respondentís failure to answer the grievance complaint as detailed above constituted a violation of Rule 8.1(2) of the Rules of Professional Conduct.

 

Since this reviewing committee finds that the Respondent violated Rules 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.5(a), 1.15(b), 1.16(d), 8.1(2) and 8.4(3) and (4) of the Rules of Professional Conduct and Practice Book ß2-32(a)(1), we order that the Respondent be presented to the Superior Court for whatever discipline the court deems appropriate, and that the presentment complaint seek an order of appropriate restitution to the Complainant for the $1500 fee paid to the Respondent for the probate matter and an order for the return of the Complainantís original will.

 

____________________________________

Attorney Raymond B. Rubens

 

____________________________________

Attorney Margarita Moore

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________________

††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††††††† Ms. Dahlia Johnston



[1]† Although the grievance panelís probable cause letter appropriately cited to Rule 1.15(b) of the Rules of Professional Conduct, it incorrectly quoted language from subsection (c) of Rule 1.15.† The subsection cited by the grievance panel and intended to be a finding of probable cause was Rule 1.15(b).† This correction was made on the record at the October 13, 2004 hearing.