STATEWIDE GRIEVANCE COMMITTEE
Michael Davis, Complainant vs. Louis S. Avitabile, Respondent
Grievance Complaint #97-0900
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, 95 Washington Street, Hartford, Connecticut on October 7, 1998. The hearing addressed the record of the complaint filed on May 5, 1998, and the probable cause determination filed by the Waterbury Judicial District Grievance Panel on July 1, 1998, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4(a) and (b) of the Rules of Professional Conduct.
Notice of the hearing was mailed to the Complainant and to the Respondent on August 26, 1998. The Complainant and the Respondent appeared and were heard by the reviewing committee. The reviewing committee also heard the testimony of the Complainant's fiancee, Zena Foskey. Exhibits were received into evidence.
Prior to the hearing, the Complainant attempted to have several subpoenas issued to bring witnesses to the hearing. The Complainant made his request to the clerk of the court in New Haven. The subpoenas were not issued. In a series of letters, the Complainant claimed that the lack of witnesses interfered with his ability to present his case.
At the hearing, the Complainant indicated that the witnesses he sought to have subpoenaed were the Respondent's secretary, Danielle Cormier, Attorney Alan McWhirter, Chief Public Defender for the Waterbury Judicial District, Attorney Deborah Del Prete Sullivan from the office of the Chief Public Defender, on the issue of the Respondent's special public defender contract with the State, Assistant States' Attorney John Davenport and Richard K. Smith from the Waterbury Judicial District clerk's office. The Complainant in written documentation also noted that he wished to have testimony from Deputy Chief Public Defender Susan Story from the Office of the Chief Public Defender. After considering the Complainant's request and the need for the witnesses, this reviewing committee concludes that it has sufficient information in the record to make a determination on the probable cause finding in the case, without the need for the witnesses listed by the Complainant.
This reviewing committee finds the following facts by clear and convincing evidence:
In November of 1997, the Complainant was arrested on drug charges. Another attorney told the Complainant that the Respondent was appointed to represent the Complainant as a special public defender. The Respondent did not attend the first court date of December 16, 1997 and the matter was continued. The Complainant and the Respondent met for the first time at a court date on January 14, 1998. The State filed a substitute information that eliminated the need for a probable cause hearing. The Complainant believed he was advised by the Respondent to waive the probable cause hearing. However, the record reflects that a probable cause hearing was not available. The Respondent and the Complainant had a short discussion about the substance of the charges against the Complainant.
The Respondent did not file any motions regarding bail or the suppression of evidence based on a defective warrant, because he believed the motions would not be successful, or were premature. The Respondent did make an oral motion regarding the release of the Complainant's automobile. The Complainant's automobile had been seized as part of the arrest. In April of 1998, the court ordered the release of the automobile. However, the matter of storage fees was not addressed. In May of 1998, the court, in response to the Complainant's motion regarding storage fees, ruled that it had no authority to waive the storage fees to the city, which were then approximately $3,000.00. The Respondent did not pursue the dispute between the Complainant and the city on the storage fees because he believed the matter was civil and not part of his criminal representation of the Complainant as a special public defender.
Beginning in January of 1998 to March 26, 1998, the Complainant sent a series of letters to the Respondent seeking documents, and information on the case and an opportunity to discuss the Complainant's defense with the Respondent. The Complainant also made telephone calls to the Respondent's office. The Respondent did not respond to the letters or telephone calls. On March 26, 1998, the Complainant made a court appearance. The Respondent appeared and the Complainant and the Respondent spoke briefly about the case. In March and early April of 1998, the Complainant wrote to the Respondent requesting the status of his case and requesting documents. The Respondent did not reply. On April 2, 1998, the Complainant and the Respondent met at a court date. On April 17, 1998, the Complainant and the Respondent had a telephone conversation. The Complainant consistently claimed that in his interactions with the Respondent that the Respondent did not seek to communicate with the Complainant much beyond whether the Complainant was going to plea or whether the Complainant was going to seek a jury trial. The Respondent contended that he provided adequate communication to the Complainant and understood the Complainant's position. In May of 1998, the Complainant filed a grievance complaint.
While the Respondent's contract with the Public Defenders Services Commission included a recordkeeping provision, the Respondent testified that he did not keep records on the Complainant's matter, but could reconstruct his time. He believed his recordkeeping was in accordance with the contract.
This reviewing committee does not find clear and convincing evidence that the Respondent neglected the Complainant's case in violation of Rule 1.3 of the Rules of Professional Conduct. The record reflects that the Respondent adequately appeared to represent the Complainant's interests and had reasonable explanations as to why various motions requested by the Complainant were not filed. We also do not find it unreasonable for the Respondent to claim that the issue of the storage fees regarding the automobile is civil in nature and goes beyond his obligations in representing the Complainant against criminal charges.
This reviewing committee does find clear and convincing evidence that the Respondent failed to adequately communicate with the Complainant in violation of Rule 1.4 of the Rules of Professional Conduct. The record reflects that the Respondent's interaction with the Complainant occurred in brief meetings at the courthouse and very minimal telephone contact. The Respondent clearly did not respond to the written correspondence of the Complainant or to the requests made by the Complainant in the letters. The Complainant had more rights to participate in his defense than the Respondent allowed. The Complainant, as a client of the Respondent, was entitled to some acknowledgment and response from the Respondent to various inquiries about the status of the case, the strategy of the defense and the transfer of documents. The record reflects that the Complainant was not given sufficient explanations of the Respondent's actions on the file or sufficient responses to requests for documents or action on the file. Even if the Respondent wanted to set parameters as to what the Respondent considered reasonable action on the file, or parameters on requests for information or documentation, the Respondent had an obligation to so inform the Complainant, preferably in writing. By consistently ignoring the letters and requests from the Complainant, the Respondent violated Rule 1.4. We are also critical of the Respondent's failure to keep contemporaneous records of his time on the Complainant's file, in light of his contract with the state.
It is the decision of this reviewing committee to reprimand the Respondent for violating Rule 1.4 of the Rules of Professional Conduct.
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Attorney Margaret P. Mason
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Attorney Lorraine D. Eckert
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Mr. Marcus R. McCraven