STATEWIDE GRIEVANCE COMMITTEE

Barbara Kershaw Complainant vs. Robert J. Recio Respondent:

Grievance Complaint #98-1104

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, 235 Church Street, New Haven, Connecticut on February 2, 2000. The hearing addressed the record of the complaint filed on June 24, 1999, and the probable cause determination filed by the Hartford/New Britain Judicial District, Geographical Areas 12 and 16 Grievance Panel on October 14, 1999, finding that there existed probable cause that the Respondent violated Rule 8.4 of the Rules of Professional Conduct.

Notice of the February 2, 2000 hearing was mailed to the Complainant and to the Respondent on December 28, 1999. There was a prior hearing on the matter on December 2, 1999 for which notice to the committee was mailed on November 2, 1999. The reviewing committee hearing the matter on December 2, 1999 consisted of Attorney M. Katherine Webster-O'Keefe, Attorney Frederick J. Krug and Ms. Johanna Kimball. The Complainant appeared at the December 2, 1999 hearing, but the Respondent did not appear. After the hearing, the Respondent requested a new hearing based on notice issues. The request was granted for a de novo hearing. The transcript of the December 2, 1999 hearing and the exhibits entered on that date were not made part of the record for the new hearing. The undersigned reviewing committee conducted a hearing on February 2, 2000. The Respondent appeared and was heard. The Complainant did not appear. The Complainant submitted a letter dated January 19, 2000 to the Office of Statewide Bar Counsel indicating that she was unavailable to attend the hearing, but stood by her complaint. An exhibit was received into evidence.

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

On March 31, 1998, the Hon. Marshall K. Berger, Jr. suspended the Respondent for one year and placed conditions on the Respondent's reinstatement. To date, the Respondent has not been reinstated to the Connecticut bar.

The Complainant in the case at issue represented the Respondent's former wife in post-dissolution custody and support matters. The Respondent appeared pro se. During the course of the matter, the Respondent sent a letter dated March 12, 1999 to his former wife, and the Complainant, on letterhead containing the title Attorney at Law. The same letterhead was used by the Respondent to respond to the grievance complaint on August 21, 1999. The Respondent also filed pleadings dated February 23, 1999 in the court matter, where he used the title esquire with his juris number and signed the certification of notice as a Commissioner of the Superior Court. On or about May 15, 1999, the Respondent, signing as Commissioner of the Superior Court, issued a subpoena against his former wife.

This reviewing committee also considered the following facts:

In his defense, the Respondent contended that he had a good faith belief that he could use the titles he did, and issue a subpoena. He denied trying to seek an advantage in the family matter. He argued he was trying to inform the court of his status by using his juris number, which would reflect that he was suspended. The Respondent, in his testimony, indicated that he currently understands that he cannot issue subpoenas. As of about November 29, 1999, the Respondent ceased using the titles at issue in the complaint.

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

This reviewing committee concludes that the Respondent's use of the titles associated with the practice of law was clearly contrary to the court's order of suspension. The Respondent's use of the title in letters and court pleadings was unjustified. We, however, have noted that the Respondent has stopped using the titles such as Attorney at Law and Esquire. We will not issue discipline on that aspect of the file.

We are most concerned with the Respondent representing himself as a Commissioner of the Superior Court to verify notice of pleadings and using the powers of a Commissioner of the Superior Court to issue a subpoena to his former wife. The Respondent's actions in reference to the subpoena constituted a serious misrepresentation to the court and to the opposing party of the powers the Respondent possessed. Additionally, by holding himself out as a Commissioner of the Superior Court and exercising powers, the Respondent took steps that clearly ran counter to the court's suspension order. While we could refer the Respondent to court for a hearing on contempt, we believe that a reprimand is a suitable discipline given the circumstances of this grievance complaint. We find that the Respondent's actions in the context of asserting the title and power of a Commissioner of the Superior Court violated Rules 8.4(3) and 8.4(4) of the Rules of Professional Conduct by clear and convincing evidence. We do not find a violation of Rule 8.4(1)(2)(5) or (6). We hereby reprimand the Respondent.

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Attorney Margaret P. Mason

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Attorney Lorraine D. Eckert

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Professor Paul Hawkshaw