STATEWIDE GRIEVANCE COMMITTEE

Alan Byers, Complainant vs. Robert Hempstead, Respondent

Grievance Complaint #97-0386

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, 1061 Main Street, Bridgeport, Connecticut on March 9, 1999. The hearing addressed the record of the complaint filed on November 4, 1997, and the probable cause determination filed by the Hartford/New Britain Judicial District, Geographical Areas 13 and 14 Grievance Panel on January 7, 1998, finding that there existed probable cause that the Respondent violated Rule 1.8(a) of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on February 3, 1999. At the hearing the Complainant and the Respondent appeared and testified before this reviewing committee. The Complainant was represented by Attorney Thomas McGarry, and the Respondent was represented by Attorney Thomas Minogue, Jr.

Reviewing committee members Randy L. Cohen and Thomas J. McKiernan were present for the hearing in this matter. Committee member Alfred R. Belinkie was not present, but thereafter reviewed the transcript and the record, and participated in the decision in this matter.

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

The Complainant and the Respondent had been friends for many years. The Respondent had provided legal services and advice to the Complainant on numerous occasions, beginning in approximately 1965 and continuing through at least 1992. On May 9, 1996, the Respondent borrowed $43,000.00 from the Complainant. The loan was unsecured. The Respondent never advised the Complainant to seek independent counsel to review the transaction.

The Respondent promised to repay the loan within sixty days. However, as of the date of the hearing, only a small portion of the loan had been repaid. One of the repayment checks from the Respondent bounced.

The Respondent indicated to the reviewing committee, through counsel, that there was no material dispute as to the facts. However, the Respondent claimed that he had not provided any formal legal services to the Complainant in many years. The Respondent characterized more recent talks of legal issues between the two as discussions between old friends, which did not create an attorney-client relationship. The Respondent’s counsel argued that Rule 1.8 should be read to contain a time limitation with regard to former clients. Respondent’s counsel noted that the need for the loan was caused by difficult economic times for the Respondent, who had an otherwise unblemished ethical record.

Subsequent to the hearing date, the Statewide Grievance Committee was informed by counsel for the Complainant, in a letter dated October 28, 1999, that the Respondent has now repaid the loan in full.

This reviewing committee concludes that there is clear and convincing evidence that the Respondent entered into a business transaction with the Complainant without advising the Complainant to seek independent counsel or obtaining the Complainant’s consent in writing, in violation of Rule 1.8(a) of the Rules of Professional Conduct. The reviewing committee finds the Respondent’s argument that there should be a time limitation as to who is considered a "former client" to be unpersuasive. The committee would ordinarily consider ordering a presentment of the Respondent in a situation such as this, but notes that the Respondent has now mitigated the damage to the Complainant by repaying the loan in full. Therefore, it is the decision of this reviewing committee that the Respondent be reprimanded.

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Attorney Randy L. Cohen

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Attorney Alfred R. Belinkie

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Mr. Thomas McKiernan