STATEWIDE GRIEVANCE COMMITTEE

 

Brent Williams, Complainant vs. Louis Avitabile, Respondent

 

Grievance Complaint #05-0474

 

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, 80 Washington Street, Hartford, Connecticut on March 1, 2007.  The hearing addressed the record of the complaint filed on May 18, 2005, and the probable cause determination filed by the Waterbury Judicial District Grievance Panel on December 22, 2006, finding that there existed probable cause that the Respondent violated Rule 1.4(a) and (b) 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 January 29, 2007.  Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Patricia King pursued the matter before this reviewing committee.  The Complainant and the Respondent appeared at the hearing and testified. 

 

Reviewing committee member Dr. Frank Regan was not available for the hearing.  Both the Disciplinary Counsel and the Respondent, however, waived the participation of Dr. Regan in this matter and agreed to have the undersigned render this decision.

 

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

 

On July 1, 1999, the Respondent was appointed as special public defender to represent the Complainant on charges of assaulting a police officer.  The Complainant pled not guilty on August 16, 1999 and his case was placed on the jury trial list.  On December 31, 1999, the Complainant was released from prison on bond.  During this time, the Complainant was living with his parents in Milford, Connecticut.  The Complainant provided the Respondent with his Milford address and telephone number. 

 

In September of 2000, the Complainant moved to Flint, Michigan and telephoned the Respondent’s office once a month to inquire whether a trial date had been assigned.  In late November, 2000, the Respondent was advised by the court that the Complainant’s case was called for trial on December 12, 2000.  The Respondent appeared in court on December 12, 2000 and requested a continuance for several weeks so that the Complainant could return from Michigan.  The court granted the Respondent a one day continuance.  The Complainant did not appear in court on December 13, 2000 and the court issued a rearrest warrant.

 

On or about February 14, 2001, the Complainant telephoned the Respondent’s office and was advised of the rearrest warrant issued on December 13, 2000.  The Complainant asked the Respondent to get the rearrest warrant vacated.  The Respondent’s office, thereafter, contacted the court and obtained a court date for March 19, 2001.  The Respondent’s office sent a letter, dated February 14, 2001, to the Complainant at 1124 Fulsom Street in Detroit, Michigan stating the following:  “Your next court date is scheduled for March 19, 2001 at Waterbury Superior Court.”  The address on the letter did not contain a zip code.  The Complainant, thereafter, faxed two letters to Judge Damiani in Waterbury requesting that the rearrest warrant be vacated since the Respondent had not advised him of the December 13, 2001 court date.  The Complainant’s letters to Judge Damiani referenced the March 19, 2001 court date and contained his telephone number and fax number.  The Complainant also faxed these letters to the Respondent.

 

The rearrest warrant was not vacated on March 19, 2001, since the Complainant did not appear at the hearing.  Thereafter, no further communications occurred between the Complainant and the Respondent. 

 

On or about February 22, 2005, the Complainant returned to Connecticut and was rearrested on the failure to appear charge.  The court eventually dropped the failure to appear charge and the Complainant accepted a one year plea on the underlying charges. 

 

This reviewing committee also considered the following:

 

The Complainant maintained that prior to moving to Michigan, he spoke with the Respondent and his bondsman to determine whether he could move to Michigan to live with his fiancé.  He was advised that he could do so as long as he appeared for trial.  The Complainant testified that while he was in Michigan, he only lived at one address in Flint, Michigan, which was 1124 Fulsom Street.  The Complainant further testified that he provided the Respondent with his cell phone number and telephone and fax number, which were the same.  The Complainant testified that the Respondent’s office never contacted him regarding the December, 2000 court date.  The Complainant maintained that he was advised about the December court date in February of 2001 when he contacted the Respondent.  The Complainant testified that the Respondent told him that he did not notify the Complainant of this court date because he did not know where to contact the Complainant.

 

The Complainant attached a copy of the Respondent’s February 14, 2001 letter to his grievance complaint.  The Complainant maintained that this letter was faxed to him by the Respondent.  The Complainant testified that the Respondent gave him the name and fax number of Judge Damiani, so that the Complainant could send a letter to the judge explaining his failure to appear.  The Complainant maintained that he believed that the rearrest warrant had been vacated since a court date had been assigned for March 19, 2001, and that the March 19, 2001 court hearing date would be a hearing on the underlying charges.

 

The Complainant testified that he flew to Connecticut on March 19, 2001 and went to the Waterbury court and spoke with the clerk.  The clerk advised the Complainant that his case was not on the docket and that the rearrest warrant was still in effect.  The Complainant maintained that he, thereafter, went to the Respondent’s office and advised him of this development.  The Respondent advised the Complainant to return to court and that he would be there shortly.  The Complainant testified that he returned to court and waited approximately one hour for the Respondent.  Thereafter, the Complainant spoke with the clerk and the clerk advised him that he could be arrested.  The Complainant maintained that he decided to leave, but wrote a note to the judge indicating he had appeared.

 

The Respondent testified that the Complainant advised him that he was moving to Detroit, Michigan and that from September of 2000 through December of 2000 he did not have an address for the Complainant in Michigan.  The Respondent maintained that the Complainant was moving around at this time and that the Complainant would telephone the Respondent’s office periodically.  The Respondent contended that the Complainant did not provide him with a cell phone number or telephone number to contact the Complainant during this time.  The Respondent testified that he obtained an address and fax number from the Complainant in February of 2001.  The Respondent maintained that from late November, 2000 until early February, 2001, the Complainant did not call his office.

 

The Respondent maintained that he did not advise the Complainant of the December, 2000 court date because he did not have any way to contact the Complainant.  The Respondent testified that he contacted the Complainant’s parents in Milford and they advised him that they would contact the Complainant.  The Complainant disputed this statement and claimed that he stayed in touch with his parents while he was in Michigan and that if the Respondent had contacted his parents they would have forwarded this message to him.  The Respondent further maintained that he spoke with the Complainant’s bondsman and that the bondsman had no contact information for the Complainant. 

 

The Respondent testified that he appeared in court on December 13, 2000 and the judge advised him that when he heard from the Complainant he could file a motion to vacate the rearrest warrant.  The Respondent contended that when the Complainant called on February 14, 2001, he told the Complainant about the rearrest warrant and that if he appeared in court on March 19, 2001, the judge would consider a motion to vacate.  The Respondent maintained that the February 14th letter advising the Complainant of the March court date was mailed to the Complainant and not sent by facsimile.

 

The Respondent testified that he was at the Waterbury Superior Court on March 19, 2001 in connection with other matters and that the Complainant never appeared in court or at the Respondent’s office.  The Respondent maintained that he never spoke with the Complainant on March 19, 2001 and that he did appear in court and that the court advised him that if the Complainant appeared, the court would contact the Respondent.

 

The Respondent testified that he was unable to communicate with the Complainant following the March 19, 2001 court date.  The Respondent contended that he attempted to send a fax to the Complainant but was unable to do so since the number had been disconnected.  The Respondent was unable to provide a copy of this facsimile to this reviewing committee.  The Respondent further maintained that the Complainant’s telephone number had been disconnected.  The Respondent did not attempt to communicate with the Complainant in writing nor did he attempt to contact the Complainant’s parents.

 

This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in unethical conduct.  The record before this reviewing committee indicates that the Respondent failed to advise the Complainant of the December 13, 2000 court date until the Complainant contacted the Respondent in February of 2001.  The Respondent maintained that he was unable to contact the Complainant because the Complainant did not provide him with any contact information for his residence in Michigan.  Furthermore, the Respondent maintained that he contacted the Complainant’s bondsman, and the Complainant’s parents, but was unable to obtain any contact information for the Complainant.  We find it unlikely that neither the Complainant’s parents nor his bondsman had the Complainant’s contact information in Michigan.  Moreover, considering the fact that the Complainant was diligently telephoning the Respondent’s office once a month from Michigan to determine his next court date, we find it extremely unlikely that the Complainant never provided the Respondent’s office with a telephone number or that the Respondent’s office never requested this information from the Complainant.  Accordingly, we find the Complainant’s testimony regarding this issue to be credible and conclude that the Respondent’s failure to notify the Complainant of the December 13, 2000 court date constituted a violation of Rule 1.4(a) and (b) of the Rules of Professional Conduct.

 

This reviewing committee further concludes that although the Respondent advised the Complainant of the March 19, 2001 court date, he did not adequately explain to the Complainant that this hearing date only concerned the motion to vacate the rearrest warrant.  The record before this reviewing committee indicates that the Complainant believed that the March 19, 2001 court date was a hearing on his underlying criminal charges.  The February 14, 2001 letter to the Complainant advising him of this hearing does not provide any information regarding the purpose of the hearing.  This reviewing committee finds the Complainant’s testimony regarding this issue to be credible and concludes that the Respondent failed to explain the purpose of the hearing to the Complainant to the extent reasonably necessary to permit the Complainant to make an informed decision regarding the representation in violation of Rule 1.4(b) of the Rules of Professional Conduct.

 

This reviewing committee concludes that the Respondent’s failure to communicate with the Complainant following the March 19th hearing also constituted a violation of Rule 1.4(a) and (b) of the Rules of Professional Conduct.  The record before this reviewing committee indicates that by February of 2001, the Respondent had an address and fax number for the Complainant in Michigan and an address for the Complainant’s parents in Milford.  The Respondent, however, made no attempt to send any written communication to the Complainant directly or through his parents to advise him of the status of his case.  Furthermore, the record does not substantiate the Respondent’s allegation that he unsuccessfully attempted to contact the Complainant by facsimile or telephone following the March 19th court date.  The Respondent was unable to provide a copy of any faxes sent to the Complainant that were returned.  We find the Respondent’s failure to communicate with the Complainant following this court date to constitute a violation of Rule 1.4(a) and (b) of the Rules of Professional Conduct. 

 

Since this reviewing committee concludes that the Respondent violated Rule 1.4(a) and (b) of the Rules of Professional Conduct, we reprimand the Respondent.

 

 

                                                                                    DECISION DATE:            5/21/07        

 

______________________________ Attorney Geoffrey Naab

 

______________________________

Attorney John Matulis