STATEWIDE GRIEVANCE COMMITTEE

Marjorie Jenkins, Complainant vs. Ridgely W. Brown, Respondent

Grievance Complaint #95-0701

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 August 8, 1996 and October 10, 1996. The hearing addressed the record of the complaint filed on March 4, 1996, and the probable cause determination filed by the Stamford-Norwalk Judicial District Grievance Panel on May 8, 1996, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4(a) and (b) of the Rules of Professional Conduct and the probable cause determination rendered by this reviewing committee on August 27, 1996, finding that there existed probable cause that the Respondent violated Rule 1.5 of the Rules of Professional Conduct.

Notices of the hearing were mailed to the Complainant and to the Respondent. The Complainant and the Respondent each appeared and gave testimony. This reviewing committee also heard the testimony of David Jenkins, a witness on behalf of the Complainant. Exhibits were received into evidence.

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

The Complainant retained the Respondent to represent her in connection with her desire to make use of a parcel of real property in Darien, Connecticut. In 1972, the Connecticut Supreme Court ruled against the Complainant in Jenkins v. Darien, 162 Conn. 621 (1972). Nonetheless, the Respondent advised the Complainant that he might be able to assist her in accomplishing her goals and accepted from her a $10,000.00 retainer in or about 1990. The Respondent's fee agreement was set forth in a letter addressed to the Complainant dated March 8, 1990. One paragraph of which stated as follows "4. Our normal practice is to bill on amounts due every thirty days, and we expect payment upon receipt. We will itemize disbursements and also bill for approximate telephone, photocopy, travel and other miscellaneous expenses." At the end of his fee agreement, the Respondent inserted the following language: "ADDENDUM: This is the form agreement that I have for hourly fees on land use matters. I would be happy to handle it on this basis with $10,000.00 minimum fee against which we will credit time as it is expended and bill on a monthly basis. If you would like this arrangement, please sign below and return this fee agreement with a check payable to Brown and Brown in the amount of $10,000.00." The Complainant retained the Respondent under the terms of his March 8, 1990 letter. By way of a check dated March 27, 1990, the Complainant paid the Respondent his $10,000.00 retainer.

Early on in his representation of the Complainant, the Respondent advised her that it would be a lengthy process that might depend in part on a change in the composition of the Darien zoning board and the resolution of other cases then pending in court.

At the time she retained the Respondent, the Complainant resided in Woodstock, Georgia. In or about March, 1994, the Complainant's son, David Jenkins, wrote to the Respondent by way of a letter dated March 28, 1994, requesting an update of the status of his mother's case. Jenkins noted that it had been four years since the Respondent's firm was retained to represent his mother with respect to her property. Jenkins indicated a new address for his mother, the Complainant, by way of a "cc" at the bottom of his letter. By way of a letter dated June 3, 1994, Jenkins again wrote to the Respondent complaining that he had not received a response to his March 28, 1994 letter and again carbon copied his mother, the Complainant, at her new Florida address. By way of a letter dated September 21, 1994, Attorney John T. Brumby, of Atlanta, Georgia, wrote to the Respondent at the request of the Complainant complaining that since May of 1993, the Respondent had failed to return the Complainant's telephone calls and that recent letters to the Respondent seeking information about the case had been ignored. By way of a letter dated November 11, 1994, the Respondent replied to Attorney Brumby's correspondence and made note of a recent telephone call from Attorney Brumby to him.  By way of a letter dated January 7, 1996, the Complainant wrote to the Respondent seeking the return of her $10,000.00 retainer and stating that "since I've had no contact with you in four years I assume you no longer have interest in my case."

The Respondent wrote to the Complainant on or about September 30, 1992 and November 10, 1994. The Respondent, however, wrote to the Complainant at an address in Georgia rather than her new address in Florida. The Respondent's letters were returned by the postal service as undeliverable.

This reviewing committee also took into consideration the following:

The Respondent testified that, on occasion, he attempted to return telephone calls to the Complainant. He testified, however, that there was either no return of his calls or that, on occasion, he would reach an answering machine and he would hang up without leaving a message.

The Complainant testified that she understood the $10,000.00 fee to be a minimum fee for the Respondent's representation and that even if he had completed his representation, successfully or not, in a short period of time, the fee was non-refundable.

It is the opinion of this reviewing committee that there exists clear and convincing evidence that the Respondent violated Rule 1.4 of the Rules of Professional Conduct. The Respondent received from the Complainant a retainer of $10,000.00. While he made it clear to the Complainant at the outset of his representation that her case would not be resolved quickly, the Respondent had an obligation to keep the Complainant reasonably apprised of the status of her case. The Respondent's failure to return telephone calls and respond to the written correspondence from the Complainant's son constitutes clear and convincing evidence of misconduct. The Respondent, clearly, should have taken stronger steps to ensure that his communications with the Complainant got through to her. His failure to follow up on the return by the postal service of letters to her as undeliverable does not constitute reasonable communication with a client. Additionally, the Respondent failed to timely respond to requests for information from an attorney in Georgia the Complainant had to turn to when her attempts at communication with the Respondent were unsuccessful. We are critical of the Respondent for not providing the Complainant with monthly status reports or billing statements as provided for in paragraph four of his fee agreement. Given the addendum to the fee agreement and the somewhat unusual nature of the arrangement with the Complainant, we do not find that his failure constitutes a violation of the Rules. Given our finding, however, that the Respondent violated Rule 1.4 in failing to keep the Complainant reasonably apprised of the status of her case and to respond to her requests for information, it is our recommendation that the Respondent be reprimanded by the Statewide Grievance Committee.

Attorney Anne R. Hoyt

Attorney Robert J. Kor

Ms. Carol E. Johnson-Springmeyer