STATEWIDE GRIEVANCE COMMITTEE

Eileen P. Swerdloff, Complainant vs. David Alan Azia, Respondent

Grievance Complaint #95-0488

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 September 5, 1996. The hearing addressed the record of the complaint filed on December 3, 1995 and the probable cause determination filed by a reviewing committee of the Statewide Grievance Committee on April 18, 1996 finding that there existed probable cause that the Respondent violated Rule 4.2 of the Rules of Professional Conduct. The reviewing committee's probable cause determination was contrary to the determination of no probable cause filed by the Hartford-New Britain Judicial District, Geographical Areas 12, 15, 16 and 17 Grievance Panel.

Notice of the hearing was mailed to the Complainant and to the Respondent by letter dated July 3, 1996. At the hearing on September 5, 1996, the Complainant appeared and was heard by this reviewing committee. The Respondent did not appear. By correspondence dated September 25, 1996, the Respondent requested an additional opportunity to be heard. The reviewing committee denied the Respondent's request.

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

The Complainant represented a party in a divorce action. The Respondent represented the opposing party. On or about November 10, 1995, the Respondent communicated with the Complainant's client knowing that the client was represented by the Complainant without the Complainant's consent. The Respondent telephoned the Complainant's client and communicated with her regarding a sales contract for a condominium jointly owned by the parties. The property was the focus of the negotiations in connection with the pending dissolution. The Respondent also faxed documents to the Complainant's client. At the time of the telephone communication and the faxing of documents by the Respondent, the Complainant was in Italy on vacation. The Complainant's office was being covered by another attorney in her absence.

The reviewing committee also considered the following:

The Respondent contended in his written answer to the complaint that he had "independent justification" for communicating with the Complainant's client and that "both parties credit would have been destroyed if" he "could not finalize the transaction". The Respondent further contended that he informed the Complainant's client that she should consult with an attorney.

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

This reviewing committee concludes that the Respondent's conduct in connection with his representation of a client in a divorce proceeding involved a breach of the Rules of Professional Conduct. The Respondent communicated with the Complainant's client about the subject of the representation knowing that the client was represented by the Complainant without the Complainant's consent in violation of Rule 4.2 of the Rules of Professional Conduct. The reviewing committee noted that Rule 4.2 does not contain an "independent justification" exception. Since we conclude that the Respondent violated the Rules of Professional Conduct, we recommend that the Statewide Grievance Committee reprimand the Respondent

Attorney Suzanne Powers

Mr. Carmen Donnarumma