STATEWIDE GRIEVANCE COMMITTEE

Eugene Melchionne, Complainants vs. Edan Calabrese, Respondent

Grievance Complaint #95-0065

PROPOSED DECISION

Pursuant to Practice Book '27J, the undersigned, duly- appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 95 Washington Street, Hartford, Connecticut, on February 7, 1996 at 2:00 p.m. The hearing addressed the record of the complaint filed on July 27, 1995 and the probable cause determination filed by the New Haven Judicial District, Geographical Areas 7 & 8 Grievance Panel on September 21, 1995, finding that there existed probable cause that the Respondent violated Rules 4.1, 3.3(a)(4) and 8.4 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on January 2, 1996. The Respondent appeared at 9:30 a.m. seeking a continuance because of the unavailability of his counsel, Attorney Maxwell Brunswick. He was advised to return at 2:00 p.m. He did not appear. The Complainant appeared and objected to a continuance. The Complainant was heard by the reviewing committee. Exhibits were received into evidence.

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

In 1994, the Respondent represented a client in a Chapter 13 bankruptcy petition. The Complainant represented a secured debtor. The Complainant's client filed a proof of claim for $9,355.07 based on a judgment obtained in Superior Court. On or about August 18, 1994, the Complainant, on behalf of his client, filed an objection to the Chapter 13 petition, since no plan was filed or certified to creditors. The hearing on the objection was scheduled for August 24, 1994.

On August 23, 1994, the Respondent sent a facsimile to the Complainant of a handwritten Chapter 13 plan with the sum owed the Complainant's client of $6,571.85. The Complainant did not agree with the plan. The Complainant and the Respondent spoke on August 23, 1994. The Respondent agreed to modify the Chapter 13 plan to reflect the proof of claim amount. The Complainant, based on the Respondent's representations, did not appear at the August 24, 1994 hearing. The Complainant sent a letter to the Respondent on August 23, 1994 verifying the agreement. Thereafter, the Complainant awaited a copy of the amended plan. The Respondent did not respond to inquiries, including an October 26, 1994 letter from the Complainant.

In December of 1994, the Complainant checked the court files and found that the Respondent had never amended the plan, but rather had filed the original plan and proceeded to confirmation of the plan counter to the agreement with the Complainant. Even after notice, the Respondent took no remedial actions.

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

We find that the Respondent represented to the Complainant that he would amend the Chapter 13 plan, and did not do so. The Respondent knowingly made a false statement to the Complainant, upon which the Complainant relied. Through such action, the Respondent violated Rules 4.1 and 8.4 of the Rules of Professional Conduct. The Respondent also knowingly offered false evidence to a tribunal by filing a Chapter 13 plan counter to the agreement of the Complainant, in violation of Rules 3.3(a)(4) and 8.4 of the Rules of Professional Conduct. The Respondent also failed to take any remedial measures in the court after filing the Chapter 13 plan, in spite of repeated contacts by the Complainant seeking information on the agreed upon Chapter 13 plan, in violation of Rules 3.3(a)(4) and 8.4 of the Rules of Professional Conduct. We recommend that the Statewide Grievance Committee file a presentment in Superior Court for whatever discipline the court deems appropriate.

Attorney Kerry Tar

Ms. Nan K. Crowley