STATEWIDE GRIEVANCE COMMITTEE 

Locknetics Security Engineering, Complainant vs.  Jacek I. Smigelski, Respondent

Grievance Complaint #95-0820

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, 300 Grand Street, Waterbury, Connecticut on January 2, 1997. A previous hearing scheduled for October 3, 1996, was continued at the Respondent's request. The hearing addressed the record of the complaint filed on April 9, 1996, and the probable cause determination filed by the Hartford-New Britain Judicial District, Geographical Areas 12, 15, 16 & 17 Grievance Panel on June 28, 1996, finding that there existed probable cause that the Respondent violated Rules 1.5, 1.15, and 8.4 of the Rules of Professional Conduct. Notice of the hearing was mailed to the Complainant and to the Respondent on November 27, 1996. The Complainant and the Respondent each appeared and gave testimony. Exhibits were received into evidence. This reviewing committee finds the following facts by clear and convincing evidence: The Complainant was the employer of Kazimierz Szmigiel. Szmigiel alleged that he was injured in an automobile accident involving an automobile owned by the State of Connecticut on or about September 10, 1994. As a result of his alleged injuries, Szmigiel was out of work for a period of time and then returned. Subsequent to his return to work, Szmigiel alleged that he received repetitive trauma injuries to his shoulder as a result of his work responsibilities. The shoulder Szmigiel claimed to have injured in the course of his employment was the one he also claimed to have injured in his earlier automobile accident. The Respondent was retained to represent Szmigiel in his claims for damages arising out of his alleged injuries. 

On behalf of Szmigiel, the Respondent pursued a workers' compensation claim and a separate civil action against the State of Connecticut for Szmigiel's alleged injuries. The Complainant took the position that it was entitled to reimbursement for benefits paid to its employee out of the proceeds of the employee's lawsuit against the State of Connecticut. At the request of the Respondent, however, the Complainant refrained from contacting the insurance carrier for the State of Connecticut directly. The Respondent negotiated a settlement with the State of Connecticut and communicated same to the Complainant. In doing so, the Respondent claimed initially one-third and subsequently one-quarter of the lien claimed by the Complainant as an attorney's fee for funds recovered for the Complainant's benefit. The Complainant never authorized the Respondent to act on its behalf and only refrained from contacting the insurer for the State of Connecticut at the Respondent's request. The Complainant, through its attorney, requested the Respondent to provide it with authority for his retaining a fee for collecting funds to which the Complainant was entitled. The Respondent was unable to do so. The Respondent, nevertheless, sent a check for the amount he believed was owed to the Complainant to the Complainant's attorney and asked that the Complainant's attorney hold the funds in escrow pending a resolution of his claim that he was entitled to a portion of the money. The Complainant's attorney refused to accept the money to be held in escrow disputing that the Respondent had any claim to the money and returned to the Respondent his check. It is the opinion of this reviewing committee that there exists clear and convincing evidence that the Respondent has violated Rule 1.15 of the Rules of Professional Conduct. At the Respondent's request, the Complainant refrained from contacting the insurer for the State of Connecticut regarding reimbursement for medical benefits paid to its employee. When the Respondent settled the Complainant's employee's case, he asserted a fee for collecting money to which the Complainant was entitled. The Respondent had no authority for claiming the fee. The assertion of the fee and the failure to promptly forward to the Complainant the funds to which it was entitled constitute a violation of Rule 1.15 of the Rules of Professional Conduct. It is the recommendation of this reviewing committee that the Respondent be reprimanded by the Statewide Grievance Committee.

 Attorney Alfred R. Belinkie

 Attorney M. Katherine Webster-O'Keefe 

 Mr. Carmen Donnarumma