STATEWIDE GRIEVANCE COMMITTEE

Michael & Elaine Smart, Complainants vs. Edan Calabrese, Respondent

Grievance Complaint #95-0077

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. The hearing addressed the record of the complaint filed on July 31, 1995 and the probable cause determination filed by the New Haven Judicial District, Geographical Areas 7 & 8 Grievance Panel on November 2, 1995, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainants 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 Complainants objected to the continuance since they had taken time off from work to be present. The reviewing committee went forward and the Complainants appeared and were heard by the reviewing committee.

In April of 1994, the Complainants sought the Respondent's assistance in filing for bankruptcy. On or about April 11, 1994, the Complainants paid the Respondent $1,160.00 for his services. The Respondent filed a Chapter 13 petition on behalf of his clients. He also indicated to them that he would file additional motions regarding an unsecured lien on the clients' automobile. The Complainants paid him $320.00 on or about April 21, 1994 for the additional motions. The Respondent did not file the motions, or report to the court that he had received $320.00 from the Complainants.

At a May 19, 1994 hearing on the Complainant's matter, the Respondent was very late, and only attended after his clients had called him at his office. On or about May 23, 1994, the Respondent sent a letter to the Complainants indicating that their Chapter 13 plan had been confirmed. He advised them to pay the trustee, Attorney Jeffrey Sapir $380.00 per month for six months. The Complainants began payments. In April of 1995, the bankruptcy trustee, Attorney Sapir, notified the Complainants that a motion to dismiss was filed in the case since the Respondent had failed to timely file proper papers to confirm the Chapter 13 plan, and failed to file other required forms. The Respondent did not respond to inquiries by the Complainants, or appear in court on his clients' behalf. The motion to dismiss was granted on July 13, 1995. The Complainants attempted to contact the Respondent through telephone calls and a certified letter of May 4, 1995. The Respondent did not respond. The Complainants sought new counsel to reopen their matter.

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

The Respondent clearly accepted the Complainants' matter, then failed to diligently pursue the Chapter 13 petition. The Complainants' matter was dismissed due to the Respondent's lack of diligence. Additionally, the Respondent accepted sums from the Complainants for motions the Respondent did not file. The record also clearly reflects that the Respondent failed to properly and accurately communicate with his clients about the status of the petition. The Respondent's actions violated Rule 1.3 and 1.4 of the Rules of Professional Conduct. Pursuant to Practice Book '27M.1(1) and (2), we recommend that the Statewide Grievance Committee issue a reprimand against the Respondent and order him to provide $1,480.00 in restitution to the Complainants within three months of the final decision.

Attorney Kerry A. Tarpey

Ms. Nan K. Crowley