STATEWIDE GRIEVANCE COMMITTEE

Gary D. Weinberger, Complainant vs. William Basil Bilcheck, Jr., Respondent

Grievance Complaint #97-0988

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, 1 Court Street, Middletown, Connecticut on February 11, 1999. The hearing addressed the record of the complaint filed on June 10, 1998, and the probable cause determination rendered by a reviewing committee of the Statewide Grievance Committee on November 20, 1998, finding that there existed probable cause that the Respondent violated Rules 8.4(3) and 8.4(4) of the Rules of Professional Conduct. The reviewing committee's probable cause determination was contrary to the determination of no probable cause filed by the New Haven Judicial District, Geographical Areas 7 & 8 on September 28, 1998.

Notice of the hearing was mailed to the Complainant and to the Respondent on December 29, 1998. The Complainant and the Respondent appeared and were heard by the reviewing committee. The Respondent was represented by Attorney Charles Tiernan, III.

This reviewing committee makes the following findings by clear and convincing evidence:

The Complainant, an Assistant Federal Public Defender, was appointed to represent David Taylor, who was indigent, on embezzlement charges. Mr. Taylor entered a plea and was awaiting sentencing on March 17, 1998. The Respondent represented Mr. Taylor's wife in a dissolution action. Mr. Taylor was a pro se party in the divorce matter as of September 1997. On or about February 19, 1998, the Respondent met with Mr. Taylor and finalized an agreement in the dissolution action. Mr. Taylor agreed to pay the Respondent's legal bill of $6,600. The court accepted the agreement in early March of 1998. In March of 1998, the Respondent was aware of Mr. Taylor's ownership of a Land Rover automobile. The Respondent arranged to have the car turned over to Day, Berry and Howard. Title to the car was used to obtain a release so that an April 28, 1998 closing involving the Taylor's house could take place. The Respondent did not inform the court of the Land Rover asset.

Shortly after the court accepted the written dissolution agreement, the Respondent learned from his client that Mr. Taylor would probably not be paying the Respondent's legal bill. The Respondent telephoned the Complainant on March 16, 1998 on the matter and left a message. Before speaking with the Complainant, the Respondent on March 17, 1998 wrote a letter to Mr. Taylor. The letter indicated that pursuant to the dissolution agreement Mr. Taylor was to pay the Respondent. The Respondent sought payment in order to avoid taking the sums from Mrs. Taylor. The Respondent wrote that with Mr. Taylor's sentencing coming up that Mr. Taylor would need to cooperate with those who know that he had hidden assets. It was further stated that if someone were to come forward to advise the court, it could be detrimental to the amount of jail time for Mr. Taylor. The Respondent then analogized the matter to Colonial Realty and noted that inquiries were being made by creditors about assets. The Respondent stated that his client wanted to avoid attachments or other burdens and wanted the fee paid. The Respondent asked Mr. Taylor to call him when he was released pending sentencing, or to have one of his friends make arrangements to pay the Respondent.

The Complainant indicated that Mr. Taylor told him he had no hidden assets and authorized the Complainant to disclose the letter to the prosecutor, the court and the Federal Bureau of Investigation, which was done. Mr. Taylor was, thereafter, sentenced.

This reviewing committee also considered the following:

The Complainant contended that the Respondent's attempt to seek payment from embezzlement funds, through the March 17, 1998 letter, constituted an attempted larceny. He also argued that the Respondent's actions were an attempt to extort his fee payments from Mr. Taylor.

The Respondent countered that he never intended to be paid from illegal funds and so informed Mr. Taylor in February of 1998. The Respondent expected Mr. Taylor's family or friends to fund the payment. According to the Respondent, his March 17, 1998 letter was an attempt to relay to Mr. Taylor, Mrs. Taylor's possible actions if the fee was not paid. The Respondent testified that he was not personally aware of any hidden assets and did not personally threaten to present evidence against Mr. Taylor at the sentencing. He also noted that his client did not inform him of any particular knowledge of hidden assets of Mr. Taylor. He denied engaging in larceny or extortion. The Respondent, however, noted that in hindsight he would not have written the letter and that he had no intent to use the issue of hidden assets to threaten Mr. Taylor prior to sentencing.

We find the following violations of the Rules of Professional Conduct by clear and convincing evidence:

The record reflects that the Respondent knew that Mr. Taylor had an appointed federal public defender and was charged with embezzlement. Clearly the Respondent's seeking legal fees for Mr. Taylor was problematic from the start. The letter written by the Respondent to Mr. Taylor on March 17, 1998 set forth a threat to Mr. Taylor that his sentencing might be affected if the Respondent was not paid. If Mrs. Taylor knew of hidden assets they should have been disclosed. If she did not have knowledge of hidden assets then the hollow threats should not have been used for leverage to pay the Respondent's bill. The Respondent had an obligation not to present such an ultimatum to Mr. Taylor.

We find that the Respondent's actions violated Rule 8.4(4) of the Rules of Professional Conduct. The court accepted an agreement where Mr. Taylor was to pay the Respondent. The Respondent then attempted to threaten Mr. Taylor into paying the fee. Such action was prejudicial to the administration of justice regarding both the dissolution action order and regarding Mr. Taylor's exposure at this sentencing proceedings. We also find that the Respondent violated Rule 8.4(3) of the Rules of Professional Conduct by engaging in conduct reflecting dishonesty, deceit and misrepresentation. The Respondent's letter implied that a charge against Mr. Taylor regarding hidden assets was viable, when in fact such was not the case based on the facts known to the Respondent and his client. Even if the charge were true, the use of such facts as part of a threat would be inappropriate. Additionally, the Respondent's attempt to obtain funds from an indigent defendant charged with embezzlement reflects that the Respondent was not being careful about the source of Mr. Taylor's funds.

Pursuant to Practice Book 2-37(1) and (5), we hereby reprimand the Respondent and order the Respondent to attend three continuing legal education credit hours in legal ethics within six months of this decision.

Additionally, while the issue was not part of the probable cause determination inquiry, we are concerned about the Respondent's failure to advise the family court about Mr. Taylor's Land Rover asset, and caution the Respondent against repeating such action in the future.

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Attorney Kerry A. Tarpey

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Attorney Lorraine D. Eckert

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Mr. Terrence K. Nichols