Adriel Oliveras v. Robert Photos

STATEWIDE GRIEVANCE COMMITTEE

Adriel Oliveras, Complainant vs. Robert Photos, Respondent

Grievance Complaint #02-1029A

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, 80 Washington Street, Hartford, Connecticut on October 2, 2003. The hearing addressed the record of the complaint filed on April 25, 2003 and the probable cause determination filed by the Fairfield Judicial District Grievance Panel on July 9, 2003, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.3, 1.4(a), 8.1(2) and 8.4(4) of the Rules of Professional Conduct and Practice Book §2-32(a)(1).

Notice of the hearing was mailed to the Complainant and to the Respondent on September 8, 2003. The Complainant and the Respondent appeared at the hearing. Sharon Oliveras testified on behalf of the Complainant. Attorney Robert Berke represented the Respondent. Two exhibits were admitted into evidence.

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

The Complainant retained the Respondent in connection with a personal injury he suffered as a result of a motor vehicle accident that occurred in Shelton, Connecticut on June 4, 1998. Sometime subsequent to the retention, the Complainant relocated to Delaware and thereafter relocated to Colorado. The Respondent filed a complaint on behalf of the Complainant in Milford Superior Court on June 6, 2000 (Adriel Oliveras v. Estellet Adamkiewicz and Kevin Kelly, Milford Superior Court, Docket No. 0070900). Defendant Adamkiewicz, who was represented by Attorney John J. Sheedy, filed an answer on August 11, 2000. Defendant Kelly, who was represented by Attorney Thomas R. Rowe, filed an answer on August 3, 2000.

On March 13, 2001, Defendant Kelly filed a motion for order because the Respondent had failed to produce a complete response to his interrogatories and request for production. The court granted the motion on March 26, 2001 and ordered a non-suit to enter unless the Respondent completed the defendant’s interrogatories and request for production by April 17, 2001. Motions for non-suit were filed by the defendants on April 27 and June 25, 2001, alleging that the Respondent had not complied with the court’s order. The Respondent filed an objection to the defendants’ motions on July 2, 2001. No further pleadings were filed until January 8, 2002 when a judgment of dismissal entered against the Complainant for failing to appear at a hearing. On February 4, 2002, the Respondent filed a motion to open the judgment of dismissal, claiming that the Complainant had not received notice of the hearing date. The motion to open was granted on February 19, 2002. The Respondent failed to appear at a subsequent pretrial conference held on July 23, 2002. In his stead, the Respondent sent Attorney Donald Cretella to appear at the pretrial conference. When Attorney Cretella appeared, the court disqualified him due to a conflict and the pretrial conference did not go forward.

On September 4, 2002, another pretrial conference was held at which neither the Respondent nor the Complainant appeared. As a result, the Court dismissed the Complainant’s case. On January 27, 2003, the Respondent filed a motion to open the dismissal. In support of his motion, the Respondent erroneously asserted that he had sent someone in his place to the pretrial conference and claimed that it was error to dismiss the matter for his failure to appear. The Respondent had confused the July 23, 2002 pretrial conference in which Attorney Cretella had appeared with the September 4, 2002 pretrial conference in which no one appeared. The court denied the Respondent’s motion without further comment on July 21, 2003. As of the date of the hearing on the grievance complaint, the Complainant’s lawsuit remained dismissed.

The Complainant attempted on numerous occasions to contact the Respondent to discuss the status of his lawsuit. The Respondent failed to answer the Complainant’s inquiries and, as a result, the Complainant sent a letter dated January 13, 2003 by certified mail demanding that the Respondent contact him to discuss the status of his personal injury claim. Receiving no response from the Respondent, the Complainant filed a grievance complaint against the Respondent and against his law partner. On May 20, 2003, the Respondent wrote to the Complainant and advised him that “[w]e are currently awaiting a trial date on your case. However, on May 27, 2003 we will be going to court to discuss your case with the judge.” The Respondent did not advise the Complainant that his lawsuit had been dismissed. In actuality, the Complaint’s case remained dismissed and had not been reopened by the court.

The Respondent did not answer the grievance complaint. The grievance complaint against the Respondent’s law partner was dismissed.

This reviewing committee also considered the following:

As to the failure to answer the grievance complaint, the Respondent explained that when he received notice that the grievance complaint against the Respondent’s law partner had been dismissed, he mistakenly believed the grievance complaint filed against him had also been dismissed.

The Respondent testified that at the time relevant to the grievance complaint, he was experiencing a significant amount of stress in his personal life. As a result, the Respondent explained that he referred many of his files to another attorney to alleviate his caseload. When questioned as to the misstatements he had made in his May 20, 3003 letter to the Complainant regarding the status of his lawsuit, the Respondent explained that at the time he believed the case had been reopened.

The Respondent explained that Attorney Cretella appeared at the pretrial conference in his stead on July 23, 2002 because the Respondent was on vacation. The Respondent stated that he was not aware of the September 4, 2002 pretrial conference and conceded that the case had been dismissed as a result of his error. The Respondent acknowledged that he had confused the pretrial conference held on July 23, 2002 with the September 4, 2002 pretrial conference and, as a result, referenced the wrong set of facts in his January 23, 2003 motion to reopen the dismissal.

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

The Respondent was obligated to respond to the grievance complaint and failed to do so in violation of the Rules of Professional Conduct and the Practice Book. The Respondent was unable to provide a reasonable explanation for his failure to answer the grievance complaint and, therefore, failed to establish that his failure to answer the grievance complaint was for good cause. Therefore, this reviewing committee concludes by clear and convincing evidence that the Respondent violated Rule 8.1(2) of the Rules of Professional Conduct and Practice Book § 2-32(a)(1).

The record of the instant grievance complaint contains ample evidence of the Respondent’s ethical failings in pursuing the Complainant’s case. The Respondent’s lack of oversight and overall mismanagement of the Complainant’s claim resulted in actual harm to the Complainant’s interests. The Respondent’s conduct caused the Complainant’s case to be dismissed on several occasions and ultimately resulted in the Complainant losing any chance of bringing a successful conclusion to his lawsuit. The Respondent’s suggestion that stress was interfering with his performance does not excuse his failure to keep abreast of court dates or his failure to timely rectify his errors. The Respondent’s conduct in this respect violated Rule 1.3 of the Rules of Professional Conduct. The Complainant’s case was dismissed due to the Respondent’s misconduct, thus denying the Complainant his right to have his matter resolved equitably. The Respondent’s misconduct violated Rule 8.4(4) of the Rules of Professional Conduct.

The fact that the Complainant resided outside of Connecticut during most of the time that the Respondent represented him placed the Complainant in a particularly vulnerable position as to his ability to monitor the status of his case. Living outside of Connecticut necessitated that the Complainant rely heavily on the Respondent’s continuing communication. The Rules of Professional Conduct require that the Respondent keep his client reasonably informed as to the status of his matter and promptly respond to requests for information. In this instance, the Respondent failed to fulfill that duty and, in failing to do so, violated Rule 1.4(a) of the Rules of Professional Conduct.

Although the record is clear that the Respondent demonstrated a lack of diligence, we cannot conclude by clear and convincing evidence that the Respondent’s ethical failures were the result of his incompetence and, therefore, we do not find that he violated Rule 1.1 of the Rules of Professional Conduct.

For the aforementioned ethical violations, this reviewing committee reprimands the Respondent. Further, pursuant to Practice Book §2-37(5), we order the Respondent to attend a minimum of three (3) credit hours of a continuing legal education course in legal ethics, at his own expense, within nine (9) months of the issuance of this decision. The Respondent is further ordered to provide the Statewide Grievance Committee with written confirmation of his compliance with this condition within thirty (30) days of completion of the continuing legal education course.

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Attorney John C. Matulis

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Attorney Kathleen D. Stingle

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Dr. Frank G. Regan