STATEWIDE GRIEVANCE COMMITTEE
Pearl Wieselman, Complainant vs. Berthold H. Hoeniger, Respondent
Grievance Complaint #00-0889A
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 March 6, 2002. The hearing addressed the record of the complaint filed on May 7, 2001, and the probable cause determination filed by the Litchfield Judicial District Grievance Panel on September 25, 2001, finding that there existed probable cause that the Respondent violated Rule 1.8(a)(2) and Rule 8.4(3) of the Rules of Professional Conduct.
Notice of the hearing on March 6, 2002 was mailed to the Complainant and to the Respondent on January 2, 2002. The Complainant appeared and testified at the hearing, represented by Law Student Intern Steven Tischione who was supervised by Attorneys Deborah J. Cantrell and Dennis Curtis of the Yale Law School Lawyering Ethics Project. The Respondent appeared at the hearing, represented by Attorney Thomas E. Lee, and testified. Doris Hoeniger, the Respondent’s wife, testified as a witness for the Respondent. Martin R. Lee, a New York attorney, testified as an expert witness regarding New York law, on behalf of the Respondent. Attorney Felecia Hoeniger, the Respondent’s daughter, testified as a witness on behalf of the Respondent. Attorney Thomas Allingham also testified as a witness on behalf of the Respondent. Exhibits were received into evidence.
Attorney Noble F. Allen was not present at the hearing. Since the Respondent did not waive the participation of a third member of this reviewing committee, Attorney Allen read the transcript of the hearing and participated in our deliberation.
This reviewing committee finds the following facts by clear and convincing evidence:
In 1986, the Respondent represented the Complainant in a dispute between the Complainant and the American Kennel Club. In 1987, the Complainant loaned the Respondent money. The Respondent repaid the 1987 loan. In 1994, the Respondent asked the Complainant for another loan. The Complainant loaned the Respondent $75,000 and the Respondent gave the Complainant confessions of judgment for $75,000. In 1995, the Respondent represented the Complainant in an action against the German Shepherd Dog Club of America. Later in 1995 the Respondent requested that the Complainant loan him an additional $25,000, and in anticipation of receiving the same, gave her confessions of judgment for $25,000. The Complainant, however, only loaned the Respondent $10,000. At the time of the $10,000 loan, the Respondent was representing the Complainant in her action against the German Shepherd Dog Club of America. The Respondent has not repaid the Complainant the principal sum of $85,000 plus interest. The Respondent did not advise the Complainant in writing that she should consider seeking the advice of independent counsel in the transactions. The Respondent is in the process of filing a bankruptcy petition. The Respondent, through his bankruptcy attorney, has offered the Complainant a reaffirmation of his debt to her.
This reviewing committee also considered the following:
The Respondent admitted that he violated Rule 1.8(a)(2) of the Rules of Professional Conduct. Attorney Martin Lee testified as an expert in New York Law regarding confessions of judgment. Attorney Felicia Hoeniger testified that she purchased a cottage from the Respondent in 1998 but was unaware of any encumbrance upon the real estate resulting from the Respondent’s transactions with the Complainant. Attorney Thomas Allingham testified that he represented Attorney Felicia Hoeniger in her purchase of the cottage from the Respondent. The Complainant’s wife, Doris Hoeniger, testified that she signed the confessions of judgment along with her husband but did not understand their legal implications.
This reviewing committee finds the following violation of the Rules of Professional Conduct by clear and convincing evidence:
The Respondent entered into a loan transaction with the Complainant. Prior to the $75,000 loan transaction between the Respondent and the Complainant, the Respondent had previously represented the Complainant. At the time of the $10,000 loan transaction between the Respondent and the Complainant, the Respondent was representing the Complainant in a legal matter. The Respondent did not advise the Complainant in writing that the Complainant should consider seeking the advice of independent counsel in either transaction. The Respondent’s failure to advise the Complainant in writing that the Complainant should consider seeking the advice of independent counsel in the loan transactions constituted violations of Rule 1.8(a)(2) of the Rules of Professional Conduct. We cannot, however, conclude by clear and convincing evidence that the Respondent violated Rule 8.4(3) of the Rules of Professional Conduct. The Respondent admits that he still owes the Complainant $85,000 plus interest. The Respondent’s financial difficulties, evidenced by his seeking bankruptcy protection, is the reason for his failure to repay the Complainant. The Respondent has offered to reaffirm his debt to the Complainant. Accordingly, this reviewing committee Reprimands the Respondent for violating Rule 1.8(a)(2) of the Rules of Professional Conduct.
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Attorney Raymond B. Rubens
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Attorney Noble F. Allen
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Professor Paul Hawkshaw