STATEWIDE GRIEVANCE COMMITTEE

Victor R. Polewsky, Complainant vs. Edan P. Calabrese, Respondent

Grievance Complaint #96-1059

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 January 7, 1998. The hearing addressed the record of the complaint filed on June 30, 1997, and the probable cause determination filed by the New Haven Judicial District, Geographical Areas 7 & 8 Grievance Panel on September 2, 1997, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4 and 1.15 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on December 2, 1997. Both the Complainant and the Respondent appeared and were heard by this reviewing committee. A committee's exhibit was received into evidence.

This reviewing committee makes the following findings:

In his complaint, the Complainant alleged that he retained the Respondent on April 29, 1997 to pursue a case against an insurance company and that the Respondent took no action. The Complainant further alleged that the Respondent failed to communicate with the Complainant regarding the action. The Complainant also asserted that the Respondent received an original check which is necessary for proof in the action. The Complainant contended that the Respondent has not returned the original check to the Complainant. The Respondent did not file an answer to this grievance complaint.

At the hearing before this reviewing committee, the Complainant testified that he met with the Respondent at the Respondent's home and office regarding an action the Complainant wished to bring against an insurance company. The Complainant testified that he never paid the Respondent a retainer. The Complainant stated that the Respondent was going to represent him on a contingency fee basis and was going to send the Complainant a contingency fee agreement. The Complainant testified that the Respondent never sent him a contingency fee agreement. The Complainant indicated that he gave the Respondent an original check in the approximate amount of $150.00 which was a return of premium by an insurance company. The Complainant testified that he has not received the check back from the Respondent. The Complainant stated that he does not believe the check has been cashed. The Complainant testified that, thereafter, he attempted to telephone the Respondent at the Respondent's home but received a recording that the Respondent's telephone had been disconnected. The Complainant testified further that he attempted to telephone the Respondent at the Respondent's office but his answering machine was full and would not take any further messages. On cross-examination the Complainant testified that he gave a copy of his file to the Respondent but retained the originals himself.

The Respondent testified that he was investigating the Complainant's claim against the insurance company. The Respondent testified that he had Philip Babin, an individual with insurance experience, investigate the Complainant's claim. The Respondent testified that he never agreed to represent the Complainant in a second case involving the loss of the Complainant's wallet. The Respondent testified that he is still in possession of the original uncashed check belonging to the Complainant. The Respondent represented that he would provide that check to the Complainant. However, by letter dated January 15, 1998, the Respondent informed the Statewide Grievance Committee that he could not locate the insurance check. The Respondent further testified that he stopped practicing law but did not so inform the Complainant. The Respondent stated that he has had a problem with illegal drugs and has attended narcotics anonymous meetings.

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

The Respondent met with the Complainant regarding an action the Complainant was seeking to bring against an insurance company. The Respondent took possession of an original check belonging to the Complainant in connection with the possible action against the insurance company. The Respondent commenced an investigation of the Complainant's possible action. The Respondent did not agree to represent the Complainant in the insurance claim. The Respondent did not communicate to the Complainant his decision not to represent the Complainant in the insurance claim. The Respondent did not return to the Complainant the original check from the insurance company. The Respondent did not agree to represent the Complainant in a second action regarding the loss of the Complainant's wallet.

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

The Respondent's failure to inform the Complainant that he had decided that he would not represent the Complainant in his action against the insurance company constituted a violation of Rule 1.4 of the Rules of Professional Conduct because he failed to keep the Complainant reasonably informed about the status of the matter. The Respondent should have sent the Complainant a letter communicating his decision not to represent the Complainant. Furthermore, the Respondent's failure to deliver the original insurance check to the Complainant promptly upon the Respondent's decision not to represent the Complainant in the insurance action constituted a violation of Rule 1.15 of the Rules of Professional Conduct. Because we do not find that the Respondent agreed to represent the Complainant in either of the Complainant's possible actions, we do not find a violation of Rule 1.3 of the Rules of Professional Conduct. Accordingly, this reviewing committee recommends that the Statewide Grievance Committee reprimand the Respondent for violating Rules 1.4 and 1.15 of the Rules of Professional Conduct.

Attorney Robert J. Kor

Attorney Kerry A. Tarpey

Ms. Cynthia Oneglia