STATEWIDE GRIEVANCE COMMITTEE

Edward Kirdizik, Complainant vs. John B. Merola, Respondent

Grievance Complaint #95-0688

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, 235 Church Street, New Haven, Connecticut on January 8, 1997. The hearing addressed the record of the complaint filed on February 27, 1996, and the determination filed by the Waterbury Judicial District Grievance Panel on April 30, 1996, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4(a) and 1.4(b) of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on November 27, 1996. Neither the Complainant nor the Respondent appeared at the hearing. However, the Respondent's attorney, Attorney Michael A. Stratton, did appear on behalf of the Respondent.

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

The Respondent represented the Complainant in a dissolution of marriage. The divorce went to a final judgment, pursuant to which the Complainant was ordered to prepare qualified domestic relations orders regarding the transfer of an employee stock ownership plan and a 401(K) plan. The Respondent failed to prepare the required documents on the Complainant's behalf, and failed to return telephone calls from the Complainant regarding the status of the orders.

Through counsel, the Respondent argued that the Complainant failed to pay the Respondent for work performed on the Complainant's behalf. The evidence before this reviewing committee shows that one thousand and five hundred dollars ($1,500) was paid to the Respondent. The Respondent claims, through counsel, that the total fee was two thousand dollars ($2,000). The Complainant has alleged that the agreed fee was only the one thousand and five hundred dollars ($1,500). The Respondent has not produced a retainer agreement to substantiate his position. The Respondent's attorney, however, acknowledged at the hearing on this matter that the Respondent did not communicate to the Complainant his position that he was owed a fee, and would require an additional payment before preparing the qualified domestic relations orders.

This reviewing committee finds clear and convincing evidence in the record of this complaint that the Respondent violated Rules 1.4(a) and (b) of the Rules of Professional Conduct. The Respondent failed to return the Complainant's telephone calls regarding the status of the preparation of the QDROs. Assuming for the sake of argument that the Respondent's position was that he was owed a fee, and payment was necessary before drafting the orders, this position was never communicated to the Complainant. The Respondent failed to keep the Complainant reasonably informed about the status of his matter, and failed to comply with the Complainant's request for information. We do not find clear and convincing evidence in the record that the Respondent violated Rule 1.3 of the Rules of Professional Conduct. However, as we have found by clear and convincing evidence that the Respondent violated Rules 1.4(a) and (b) of the Rules of Professional Conduct, it is our recommendation that the Statewide Grievance Committee reprimand the Respondent.

Attorney Kerry A. Tarpey

Mr. Marcus R. McCraven