STATEWIDE GRIEVANCE COMMITTEE

Denise Ansell, Complainant vs. Samuel Dixon, Jr., Respondent

Grievance Complaint #95-0549

PROPOSED DECISION

Pursuant to Practice Book '27J, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 95 Washington Street, Hartford, Connecticut on July 3, 1996 and October 2, 1996. The hearings addressed the record of the complaint filed on January 5, 1996, and the probable cause determination filed by the New Haven Judicial District, Geographical Area 6 Grievance Panel on April 15, 1996, finding that there existed probable cause that the Respondent violated Rules 1.7 and 8.4 of the Rules of Professional Conduct.

Notice of the July 3, 1996 hearing was mailed to the Complainant and to the Respondent on May 31, 1996. The Complainant was unable to attend the July 3, 1996 hearing. The Respondent was present with counsel, Attorney Eric Smith. The reviewing committee heard testimony from the Respondent and from Viggo Joyner. Notice of the September 4, 1996 was mailed to the Complainant and to the Respondent on July 11, 1996. The hearing date was continued. Notice for the October 2, 1996 hearing was mailed to the Complainant and the Respondent on July 31, 1996. The Complainant appeared with counsel, Attorney Arthur Meisler, and presented evidence to the reviewing committee. H. Bruce Fielding, a certified public accountant, testified on behalf of the Complainant. The Respondent appeared with counsel, Attorney Eric Smith. The Respondent essentially claimed his fifth amendment privileges and did not testify. Exhibits were received into evidence.

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

The Respondent had a long-standing professional and personal relationship with the Joyner family. On or about December 6, 1986, Amos Joyner, Sr. died. The Respondent was named administrator of the estate. The estate had a wrongful death action claim in reference to Mr. Joyner's death. On or about November 18, 1988, the Respondent was authorized to compromise and settle the claim for $150,000.00. Between fees and costs, the Respondent was entitled to approximately $54,700.00 of the settlement sums. The remaining $95,300.00 was to be divided equally between the four Joyner siblings. Angelo Joyner, Anntonet Joyner, Viggo Joyner and Amos Joyner, Jr. were entitled to approximately $22,700.00 each. In February of 1989, the Respondent filed an inventory with Probate Court. On or about May 26, 1989, the court ordered the distribution of the estate.

The Respondent received the $150,000.00 settlement sums in early December of 1988. He deposited the sums in account number 0725-7455, at Connecticut National Bank. The Joyner siblings allowed the Respondent to hold their money even after the court ordered distribution. In December of 1988, upon receiving the funds, the Respondent took $27,000.00 towards the money owed him from the estate. The Respondent did not seek prior Probate Court approval for substantial deductions made by him from the estate before May of 1989. On or about January 13, 1989, the Respondent transferred the balance of $122,683.90 in bank account number 0725-7455, to another trust account, number 6368-0690. The bank account with the number 6368-0690 had no other deposits placed in it. The account remained open from January 1989 to January of 1990. During that time, the Respondent transferred sums in a piecemeal fashion to the four siblings or used the money to their benefit. By January of 1990, the Joyner family had acquired approximately $44,800.00 to their benefit and the Respondent had deducted $77,851.34 from the account. The account was closed with a zero balance. Essentially, of the $150,000.00, the Respondent was entitled to deduct, and did deduct approximately $54,700.00 in fees and costs. The heirs were provided approximately $44,800.00. The remaining $50,500.00 deducted by the Respondent was traced by the certified public accountant, Bruce Fielding, into another client's fund account number 0094-4555, and into the law office account of the Respondent, number 0094-4500. Even after tracing all the sums, Bruce Fielding found that approximately $31,500.00 remained due and owing to the four siblings. The Respondent contended that the transactions in the accounts, through cash advances, checks and deductions for legal fees on other matters related to the four Joyners essentially accounted for the funds. The Respondent offered the testimony of Viggo Joyner, who testified that he was paid in full. The Respondent also offered affidavits of Anntonet Joyner and Amos Joyner which reflected their belief they had been paid in full by checks, cash or legal services. However, given that the affidavits were prepared by the Respondent, that Anntonet Joyner retracted some of her statements, and that there is a total lack of documentation of distributions, the knowledge of the four Joyner siblings as to how much money they received is clearly incomplete.

The Respondent never provided each Joyner with a statement of how proceeds of the settlements sums were being used. The Respondent on his own deducted fees and distributed sums as he saw fit, without properly accounting to this clients. No documentation for legal fees charged for other matters was provided. The Joyners merely entrusted their money to the Respondent. The Respondent did not properly keep track of the funds and report the status of the funds to his clients. The bank records reflect that even if the Respondent is given credit for claimed legal fees, $31,500.00 was deducted to the Respondent's own benefit without justification.

Beginning in March of 1989, the Respondent represented one of the beneficiaries of the estate, Angelo Joyner in a criminal action. On or about July 26, 1991, Mr. Joyner was sentenced to a total effective sentence of fifty years. Some time in May of 1993, a habeas petition was filed on behalf of Mr. Joyner. The Complainant, in September of 1995, was appointed a special public defender in reference to the habeas petition. The claim in the habeas petition is that the Respondent misused funds from the estate of Amos Joyner, Sr. to which Angelo Joyner was a beneficiary. Because of the misuse of estate funds by the Respondent, it is claimed that the Respondent did not provide adequate representation to Angelo Joyner so that he would be incarcerated and not be in a position to question the use of the funds. In reference to the ineffective assistance of counsel claim, the Complainant sought discovery regarding the criminal file and accounting records. On or about September 20, 1995, the Respondent was ordered to turn over the file on Angelo Joyner and to give an accounting of the probate distributions. The Respondent did not fully cooperate with the Complainant. The Respondent also claimed that the bank records for the times at issue had been destroyed. On December 6, 1995, the Respondent was subpoenaed to a hearing. He did not appear. The Complainant pursued the bank records in order to reconstruct the probate account. On January 2, 1996, the Honorable Richard N. Rittenband held the Respondent in contempt for failing to comply with the subpoena and to cooperate with the court and the Complainant. The court referred the matter to the Statewide Grievance Committee. The habeas petition of Angelo Joyner remains pending.

On or about April 11, 1996, the Statewide Grievance Committee was apprised by Judge John Keyes of the Probate Court that the Respondent failed to appear for a hearing scheduled on April 11, 1996 and had not cooperated with the appointed successor administrator of the estate of Amos Joyner, Sr. The Respondent, through counsel, in a letter to Judge Keyes dated April 25, 1996, indicated that he did not receive notice of the April 11, 1996 hearing. The Probate Court, on August 19, 1996, heard testimony in reference to the motion to revoke acceptance of the final account. On September 30, 1996, Judge Keyes revoked the acceptance of the account and referred the matter to the Statewide Grievance Committee.

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

We find the Respondent violated Rule 8.4(c) of the Rules of Professional Conduct by engaging in misrepresentation and deceit toward the Probate Court by professing to abide by his fiduciary duties when in fact he had taken substantial sums for his own benefit from probate proceeds without prior court approval and had not kept accurate records as to how funds were distributed. We also find that the Respondent violated Rule 8.4(c) by engaging in misrepresentation and deceit toward each of the Joyner beneficiaries by leading them to believe that their money was being properly safeguarded and accounted for, when in fact the Respondent's handling of the funds was done without any accounting at all. There was no proper billing for claimed legal fees. There was no periodic accounting to the clients. There was no separation of the funds so that each client knew the status of their share of the estate. The Respondent clearly acted in his own self interest with the Joyner money. Approximately $105,000.00 of the $150,000.00 from the wrongful death settlement went to the Respondent in claimed fees and unaccounted for deductions.

While the grievance panel did not cite certain rules in its probable cause determination, facts that we have found by clear and convincing evidence support violations of other Rules of Professional Conduct. We believe that a judge of the Superior Court in a de novo presentment proceeding needs to consider the presentment in light of the relevant Rules of Professional Conduct. We find by clear and convincing evidence that the Respondent violated Rule 1.15 of the Rules of Professional Conduct by failing to safeguard the Joyner siblings' sums so that each individual received what he or she was entitled to, by failing to keep complete records accounting for the sums and by failing to properly preserve the account records. The Respondent also violated Rule 1.15 of the Rules of Professional Conduct by misappropriating for his own use without any accounting approximately $31,500.00. The above actions also violate Practice Book '27A in effect at the time of the Respondent's handling of the funds. Because the Respondent failed to accurately and diligently keep track of the Joyner sums and failed to communicate to the Joyners the accurate status of their sums, the Respondent also violated Rules 1.3 and 1.4 of the Rules of Professional Conduct

The Complainant also raised a conflict of interest claim against the Respondent based on the Respondent's representation of Angelo Joyner in a criminal matter while the Respondent was an administrator of the estate to which Mr. Joyner was a beneficiary. The Complainant contends in the grievance complaint, as well as in a habeas petition on behalf of Mr. Joyner, that the Respondent misused Angelo Joyner's money and provided ineffective assistance of counsel in the criminal matter so that Angelo Joyner would be incarcerated and in no position to challenge the Respondent's use of the money. The issues are presently before the court in the habeas petition. We do not believe the grievance complaint record contains sufficient information about the Respondent's representation of Angelo Joyner so as to make a determination on the conflict claims. We also find that the conflict claim can be properly and adequately addressed in the present court proceedings. We recommend that the Statewide Grievance Committee defer to the Superior Court on the conflict issue.

On the violations of the Rules of Professional Conduct found hereinabove, we recommend that the Statewide Grievance Committee present the Respondent to the Superior Court for whatever discipline the court deems appropriate. We also recommend that the court be asked to consider ordering the Respondent to pay the legal fee of Attorney Arthur Meisler at $150.00 an hour for two hours of work. The Complainant can be paid directly if she has already paid Attorney Meisler. Additionally, the Respondent should be ordered to pay the certified public accountant, Mr. Fielding, or whoever may have paid him for five and one-half hours of work at $60.00 an hour. The total request of costs would be $660.00.

It is the recommendation of this reviewing committee that the Respondent be presented to Superior Court for whatever discipline the court deems appropriate.

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Attorney Kerry A. Tarpey

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Attorney David A. Curry