Bertha E. Allman, Complainant vs. Robert A. Photos, Respondent
Grievance Complaint #04-0926
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, 300 Grand Street, Waterbury, Connecticut on January 4, 2005. The hearing addressed the record of the complaint filed on September 23, 2004, and the probable cause determination rendered by the Fairfield Judicial District Grievance Panel on November 4, 2004, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4(a), 1.8(e) and 1.16(d) of the Rules of Professional Conduct.
Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on November 29, 2004. Pursuant to Practice Book §2-35(d), Chief Disciplinary Counsel Mark A. Dubois pursued the matter before this reviewing committee. The Complainant appeared at the hearing and gave testimony. The Respondent, represented by Attorney James O. Ruane, also appeared at the hearing and testified. Three exhibits were admitted into evidence.
This reviewing committee finds the following facts by clear and convincing evidence:
In October of 2002, the Complainant consulted with the Respondent concerning an injury that she sustained to her right ankle as the result of a fall on or about September 10, 2002. The Respondent accepted the Complainant’s case and began representing her with the objective of settling her claim or filing a civil suit on her behalf. The Respondent’s office thereafter investigated the Complainant’s claim. His office determined who the property owner was, and that Allstate Insurance Company (hereinafter Allstate) insured the property. As such, the Respondent’s office contacted Allstate regarding the Complainant’s injury, and Allstate established a file in relation to the Complainant’s claim. The Respondent’s office sent the Complainant letters on the following dates requesting that she make an appointment to discuss the status of her case: October 25, 2002; November 8, 2002; January 22, 2003; and September 5, 2003.
Some time during the spring of 2004, the Respondent loaned the Complainant $300. During that same period, the Complainant gave a recorded, telephonic statement to an Allstate fraud investigator while at the Respondent’s office. During the investigation of the Complainant’s case, the Respondent became aware of what he considered to be inconsistencies in the Complainant’s story as to where and when she fell. The Respondent sent the Complainant a letter dated September 2, 2004 informing her that he was unable to take her personal injury case and that she had until September 9, 2004 to retain other counsel as the statute of limitations would expire on that date. The Complainant telephoned the Respondent’s office upon receiving the letter and requested her file. She thereafter retrieved her file from the Respondent’s office.
This reviewing committee also considered the following:
In her grievance complaint, the Complainant alleged that after she received the Respondent’s September 2, 2004 letter, she could not find another attorney to take her case on such short notice. In a subsequent submission, the Complainant maintained that she fell at 1118 Stratford Avenue, where a friend lived, and that she was arrested the next day. She explained that she was in pain as she was led to court and that she was brought to the hospital instead of appearing in court. The Complainant claimed that she explained this to the Respondent.
The Complainant testified as to her extensive criminal history and periods of incarceration. She explained that she was arrested and incarcerated in December of 2002 and that she wrote to the Respondent. The Complainant further explained that she was released on or about December 10, 2003, that she met with the Respondent upon her release and that the Respondent indicated that he would get $5000 for her case, which she found acceptable. She claimed that in April of 2004, she was on transitional supervision in relation to a criminal matter that required her to wear a monitor operated by telephone. She claimed that she had difficulty paying her telephone bill and that the Respondent instructed his father to give her $100. She further claimed that the Respondent wrote the information on her file and that she understood this to be a loan against her file. The Complainant further maintained that she returned to the Respondent for more money in May of 2004 and that he agreed to lend her $200, instructed his father to give her the money and that she again understood it to be a loan against her file. She denied that she needed the money for a family funeral, as the Respondent maintained. In addition, the Complainant denied that the Respondent informed her of any perceived inconsistencies in the case. Rather, she testified that from May through August of 2004, she visited the Respondent’s office two to three times per week and spoke with him, and that he never told her of any discrepancies.
In his initial written response to the complaint, the Respondent explained that during their first consultation, the Complainant explained to him that she fell at a rooming house where her friend resided on September 10, 2002. He maintained that he discovered inconsistencies in the Complainant’s story upon receipt of records from Bridgeport Hospital. The Respondent claimed that he confronted the Complainant and that she admitted that the fall occurred at a different place and on a different date than she first disclosed – namely, the courthouse located at 172 Golden Hill Street on September 11, 2002. As a result, the Respondent maintained that he immediately denied the case. Finally, the Respondent did not address the Complainant’s allegation that he loaned her $300 during the representation.
The Respondent submitted an October 23, 2002 Initial Evaluation Report prepared by Doctor Barry G. Cohen of Accident & Injury Therapy Centers, P.C. with his answer to the complaint. Dr. Cohen’s report indicated that the Complainant claimed to have hurt her ankle at a friend’s house on September 10, 2002. The report contained notations indicating that it was faxed to the Respondent’s office on October 6, 2003. In addition, the Respondent submitted the Emergency Room Flow Sheet that indicated that that the Complainant was injured on September 11, 2002. The Respondent testified that his office received this document in December of 2003.
In a subsequent submission, the Respondent denied loaning money to the Complainant and explained that he lost several potential clients because he would not loan them money. He also claimed that as his office was preparing the summons and complaint for the Complainant’s case, he became aware of the inconsistencies, attempted to get an explanation from the Complainant, was not satisfied with her explanation and declined the file.
The Respondent testified that once the Complainant signed the medical authorizations, his office obtained her medical records and, thereafter, discovered the discrepancies. Initially, the Respondent could not recall when his office received the documents or when it discovered the inconsistencies. However, he eventually testified that he or his office became aware of the inconsistencies in the spring of 2004. The Respondent also could not recall initially when he decided not to file suit on the Complainant’s behalf. However, he thereafter testified that in late August of 2004, he conferred with Attorney Glenn Formica and he decided not to file suit. In addition, the Respondent maintained that he explained to the Complainant the problems that he had with her case and the differing versions of her injury when she was at his office to give a telephonic statement to Allstate in May or June of 2004. He also testified that during June, July and August of 2004, the Complainant visited his office several times and during these visits, he explained to her that her case was questionable, that she possibly would recover no money and that he would pursue “nuisance value” from Allstate – meaning that he would attempt a settlement with Allstate no matter how small the offer. The Respondent explained that he kept no notes memorializing these conversations. The Respondent also testified that after his September 2, 2004 letter, the Complainant made threatening telephone calls to his office. Finally, the Respondent admitted that he has given money to other clients in the past to assist them in paying for family member’s funerals. He also maintained that he only gave the Complainant money on one occasion, not two, and that it was a gift to help the Complainant pay for a family funeral, not a loan, as he did not ask for the money when the statute of limitations expired.
A copy of the ambulance report was admitted as an exhibit at the January 4, 2005 hearing. The report, which was dated September 12, 2002, indicated that the Complainant informed emergency personnel that she hurt her ankle the day before on stairs at home. The Respondent indicated that he received this report in approximately March of 2004.
This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:
The Respondent violated Rule 1.3 of the Rules of Professional Conduct by failing to act with reasonable diligence and promptness in representing the Complainant in relation to her ankle injury. Although the Respondent’s office properly investigated the Complainant’s claim, the Respondent failed to timely inform the Complainant that he would not file suit on her behalf until immediately before the statute of limitations expired. The Complainant’s case may not have been worth a lot of money and it may have had proof problems, but that did not provide the Respondent with an excuse to treat the Complainant differently than a client with a valuable or easily provable case. We remind the Respondent that he accepted the Complainant’s case and, upon doing so, owed her the same duties that he owed all of his clients. We note that the Respondent waited until the last possible moment to inform the Complainant that he would not file suit on her behalf, leaving the Complainant without any representation to protect her interests. We were troubled by the Respondent’s varying explanations as to when he discovered the alleged inconsistencies and when he notified the Complainant of the problems with her case. We found the Complainant’s testimony consistent and credible that the Respondent never informed her of the alleged inconsistencies before his September 2, 2004 letter. We note that this is consistent with the Respondent’s own testimony that he consulted with Attorney Formica in August of 2004 and, thereafter, decided not to file suit on the Complainant’s behalf. This reviewing committee also found that the Respondent’s conduct constituted a failure to keep the Complainant reasonably informed as to the true status of her case, in violation of Rule 1.4(a) of the Rules of Professional Conduct, and an improper termination of his representation of the Complainant on the eve of the statute of limitations expiring, in violation of Rule 1.16(d) of the Rules of Professional Conduct.
By lending the Complainant $300 during the representation, the Respondent violated Rule 1.8(e) of the Rules of Professional Conduct. We reject the Respondent’s argument that the money was a gift and not a loan against the Complainant’s file. We found no case law in Connecticut holding that a charitable purpose provided an exception to the application of Rule 1.8(e), and the Respondent provided no guidance on this point. Through both her written submissions and testimony, the Complainant was consistent and her explanation of what happened was highly believable. Moreover, we are sharply critical of the Respondent’s conflicting statements on this point. Based on his written submissions, the Respondent indicated that the Complainant was lying on this issue and that he never loaned her money. However, at the hearing before this reviewing committee, the Respondent admitted to giving the Complainant $300. We find the Respondent’s attempt to minimize his conduct unavailing.
Since this reviewing committee concludes that the Respondent violated Rules 1.3, 1.4(a), 1.8(e) and 1.16(d) of the Rules of Professional Conduct, the Respondent is hereby reprimanded.
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Attorney Margarita Moore
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Attorney Kathleen D. Stingle
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Mr. William J. Carroll