STATEWIDE GRIEVANCE COMMITTEE

Allen O'Dellm, Complainant vs. George J. Lawler, Respondent

Grievance Complaint #96-0344

PROPOSED DECISION

Pursuant to Practice Book §27J (now §2-35), 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 6, 1999. The hearing addressed the record of the complaint filed on October 18, 1996, and the probable cause determination issued by the Statewide Grievance Committee on November 5, 1998, finding that there existed probable cause that the Respondent violated Rule 8.4(4) of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on November 24, 1998. The Complainant and the Respondent, each represented by counsel, appeared and gave testimony. Attorney Margaret P. Mason was not available for the hearing. The Respondent did not waive Attorney Mason's participation in the matter. Attorney Mason participated in this decision by reviewing the record of the complaint, including the transcript of the January 6, 1999 hearing.

A brief history of this matter and its predecessor is in order. In February, 1990, the Complainant filed a grievance complaint against the Respondent alleging that the Respondent, while acting as a trustee in connection with a real estate transaction, improperly released funds to the Respondent's clients. As a result of that grievance complaint (Grievance Complaint #89-0520) the Respondent was reprimanded by the Statewide Grievance Committee on September 20, 1990. In connection with the real estate transaction at issue in his first complaint, the Complainant filed a civil lawsuit against the Respondent. The Complainant obtained a prejudgment attachment in the amount of $20,000.00 against a condominium owned by the Respondent. On or about December 7, 1990, the court entered a Practice Book §251 dismissal of the lawsuit for failure to prosecute with reasonable diligence. In January of 1991, the Respondent, through counsel, requested that the clerk dissolve the attachment pursuant to Conn. Gen. Stat. §52-324 in connection with the dismissal of the action. On February 1, 1991, a certificate of dissolution of attachment was issued by the court clerk. In the instant grievance complaint, the Complainant alleged that the Respondent improperly obtained discharge of the attachment without notice to him or his attorney. As part of the instant complaint, the Complainant also alleged that on September 22, 1995, he obtained a judgment against the Respondent in the amount of $14,093.58 in damages plus $385.00 in costs. The Complainant, however, up until the time of the hearing, had been unable to collect on his judgment as a result of the inability of the sheriff to locate any assets of the Respondent.

On February 4, 1997, the grievance panel filed a determination, dated January 30, 1997, that there existed probable cause that the Respondent violated Rules 3.3(a)(1), 3.4(b), and 8.4(c) and (d) of the Rules of Professional Conduct. The complaint was assigned to a reviewing committee which conducted hearings on July 2, 1997 and October 1, 1997. On or about August 7, 1998, the reviewing committee issued its proposed decision finding that the conduct of the Respondent did not rise to the level of an ethical violation and recommended that the Statewide Grievance Committee dismiss the complaint. On October 15, 1998, the Statewide Grievance Committee met to review the record of the complaint, including the reviewing committee's proposed decision recommending dismissal. The Statewide Grievance Committee, at its meeting, agreed with the reviewing committee that there was no misconduct with respect to the rules at issue before the reviewing committee, but voted not to adopt the proposed decision, concluding that there existed probable cause that the Respondent failed to pay a civil judgment in the civil action brought against him by the Complainant, in violation of Rule 8.4(4) of the Rules of Professional Conduct. The matter was thereafter assigned to this reviewing committee for a hearing and the issuance of a new proposed decision.

In testimony before this reviewing committee, the Respondent asserted that his non-payment of the judgment against him was a conscious decision on his part not to pay a judgment which he felt was improper. The Respondent asserted that he chose not to appeal the judgment in part, because he was judgment proof.

The Complainant argued before this reviewing committee that the judgment in this case involves money that was held by the Respondent in his capacity as a fiduciary. The Complainant argued that the instant matter involved more than the failure of an individual to pay a debt in that it involved a court awarded judgment based upon the breach of a fiduciary duty.

This reviewing committee makes the following findings by clear and convincing evidence:

The Respondent was given money to hold in trust in connection with a real estate transaction. The Respondent improperly released those funds in violation of his fiduciary duties. His breach resulted in a civil lawsuit against him in which a judgment entered in favor of the Complainant. The Respondent did not appeal that judgment and refuses to honor it. The Respondent is an officer of the court and is obligated to honor the court's orders. The Respondent's failure to do so constitutes conduct that is prejudicial to the administration of justice in violation of Rule 8.4(4) of the Rules of Professional Conduct. It is, therefore, our recommendation that the Respondent be reprimanded by the Statewide Grievance Committee.

Attorney Margaret P. Mason

Attorney Thomas Cloutier

Mr. Marcus R. McCraven