STATEWIDE GRIEVANCE COMMITTEE

 

Francisco DeLeon, Complainant vs. Paul Ngobeni, Respondent

 

Grievance Complaint #04-0017

 

DECISION

 

 

Pursuant to Practice Book ß2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, One Court Street, Middletown, Connecticut on December 9, 2004.† The hearing addressed the record of the complaint filed on January 6, 2004, and the probable cause determination filed by the New Britain Judicial District and the Judicial District of Hartford for Geographical Area 12 and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel on July 2, 2004, finding that there existed probable cause that the Respondent violated Rule 1.4 of the Rules of Professional Conduct and Practice Book ß2-32(a)(1).† The hearing also addressed the additional finding of probable cause issued by this reviewing committee on November 23, 2004, finding that there existed probable cause that the Respondent violated Rule 1.8(e) of the Rules of Professional Conduct.

This matter was originally scheduled for a hearing before this reviewing committee on October 14, 2004 in Middletown.† Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on August 30, 2004.† Pursuant to Practice Book ß2-35(d), Assistant Disciplinary Counsel Frank Blando pursued the matter before this reviewing committee.† The Complainant and the Respondent appeared at the hearing and testified. †Nine exhibits were received into evidence. Reviewing committee member George Sawyer was unavailable for the hearing.† Disciplinary Counsel and the Respondent, however, waived the participation of Mr. Sawyer and agreed to have the undersigned render this decision. The hearing was continued since additional time was needed.† The Office of the Chief Disciplinary Counsel filed a prehearing memorandum.†

 

Following the October 14th hearing, this reviewing committee issued a contemplated finding of probable cause on October 26, 2004, advising the Respondent that it was contemplating finding probable cause that the Respondent violated Rule 1.8(e) of the Rules of Professional Conduct.† The letter also notified the Respondent that he had until November 10, 2004 to file a written response and/or a request for a hearing on the contemplated probable cause finding.

 

On November 1, 2004, notice was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel advising that a hearing was scheduled for December 9, 2004 to complete the October 14, 2004 hearing.†

 

The Respondent failed to respond to the reviewing committeeís October 26, 2004 letter regarding the contemplated probable cause finding.† On November 23, 2004, this reviewing committee found probable cause that the Respondent violated Rule 1.8(e) of the Rules of Professional Conduct and notified the parties that this probable cause determination would be heard at the hearing scheduled for December 9, 2004.† Chief Disciplinary Counsel Mark Dubois appeared at the December 9, 2004 hearing and pursued the matter before this reviewing committee.† Both the Complainant and the Respondent appeared at the hearing and testified.† Seven exhibits were received into evidence.

 

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

 

The Complainant retained the Respondent and Attorney Norma Sanchez-Figueroa on April 26, 1997 to represent him in a discrimination and wrongful discharge case on a contingency fee basis. The Complainant paid the Respondent and Attorney Sanchez-Figueroa a $1,500 retainer.† The Respondent and Attorney Sanchez-Figueroa filed a complaint on behalf of the Complainant in the United States District Court for the District of Connecticut on May 15, 1997.† Thereafter, the defendants filed numerous motions to compel, motions to dismiss, motions for sanctions and motions for extension of time due to the Complainantís failure to provide timely discovery.† On September 9, 1998, the court granted the defendantsí request for fees in the amount of $10,000 for the Complainantís delay in completion of discovery.† The court also reset the Complainantís discovery deadlines.† Shortly thereafter, on October 22, 1998, the Complainant was deposed by the defendants.

 

In approximately March of 1999, the Complainant moved from Connecticut to Puerto Rico for approximately five months.† The Complainant, thereafter, moved to 205 East Columbus Drive, in Tampa, Florida and remained there until January of 2001 when he moved to 818 West Sligh Avenue in Tampa.

 

The discovery deadlines imposed by the court in September of 1998 were extended numerous times and in September of 1999 the defendants renewed their motion to dismiss. Attorney Sanchez-Figueroa thereafter filed a motion to withdraw from the case, which was granted on October 12, 1999.† A decision regarding the defendantsí motion to dismiss was reserved.† On December 10, 1999, the Respondent submitted a proposed payment schedule for the Complainant to satisfy the $10,000 sanction imposed by the court.† The payment schedule provided for five $2,000 monthly payments to the defendantsí counsel from December, 1999 through April, 2000. The Respondent, thereafter, made three payments on behalf of the Complainant for a total of $6,000.† These payments were made by the Respondent from his personal bank account.

 

In February of 2000, the defendants filed another motion to dismiss.† On February 28, 2000, the court issued a recommended ruling granting the motion to dismiss for the Complainantís failure to comply with the defendantsí discovery requests.† The court provided the Complainant an opportunity to file an objection to the recommended ruling.† The Respondent filed a timely objection.† However, on March 15, 2000, the court adopted its recommended ruling and granted the defendantsí motion to dismiss.† Judgment entered for the defendants on March 31, 2000.

 

By letter dated March 13, 2000, the Respondent forwarded the Complainant a copy of the recommended ruling and advised the Complainant that he had paid $6,000 to the defendantsí lawyer and expected the Complainant to make arrangements to pay the balance and reimburse the Respondent.† The Respondent also requested that the Complainant telephone him to discuss an appeal.† The letter was not returned as undeliverable to the Respondent.

 

The Respondent filed an appeal on behalf of the Complainant on May 1, 2000.† Thereafter, by letter dated June 9, 2000, the Complainant wrote to the Respondent requesting the status of his case.† The Respondent responded by letter dated June 24, 2000, advising the Complainant that the appeal was pending in the Second Circuit.† On April 2, 2001, the Respondent sent a letter to the Complainant advising that the defendants had filed their briefs in connection with the appeal.† Thereafter, on August 6, 2001, the Second Circuit affirmed the decision of the District Court.† By letter dated August 20, 2001, the Respondent advised the Complainant of the courtís decision.† The Respondent also advised the Complainant that he expected the Complainant to make arrangements to reimburse him for the $6,000 he had paid to the defendantsí lawyers.† This letter was not returned as undeliverable to the Respondent.

 

The Complainant filed this grievance complaint against the Respondent on January 6, 2004.† By certified letter dated January 8, 2004, the Respondent was notified of the grievance complaint and requested to submit an explanation to the complaint within thirty days.† The Respondent did not claim this letter, which was returned to the Office of the Statewide Bar Counsel on March 8, 2004.† The letter was thereafter sent to the Respondent via regular mail on March 8, 2004 and was not returned.† The Respondent did not file a written response to the grievance complaint with the grievance panel.† On July 2, 2004, the grievance panel filed its probable cause determination. Thereafter, on October 13, 2004, the Respondent submitted a written response to the grievance complaint to the Statewide Grievance Committee.

 

This reviewing committee also considered the following:

 

The Complainant stated that from April of 1997 through December of 1998, the communication between him and the Respondent was adequate.† The Complainant testified that he thereafter experienced difficulties in communicating with the Respondent.† The Complainant contended that he telephoned the Respondent more than twenty times regarding the status of his case, but was never able to speak with the Respondent.† The Complainant testified that he met with the Respondent three times to discuss his case.† At their third meeting in 2002, the Complainant maintained that he requested a copy of his file, but that the Respondent did not provide it to him.† The Complainant also testified that he sent several letters by express and certified mail to the Respondent and that the Respondent never responded to these letters.† The Complainant acknowledged that the Respondent sent him documents on several occasions for him to sign and return.† However, the Complainant denied the Respondentís allegation that the certified receipts provided by the Complainant were for documents the Respondent sent to the Complainant to complete and return.

 

The Complainant testified that the Respondent never advised him that his case had been dismissed.† He maintained that he learned of the dismissal from disciplinary counsel.† The Complainant also insisted that the Respondent never advised him that sanctions had been imposed against him or consulted with him regarding the December 10, 1999 payment schedule the Respondent filed with the court in connection with the sanctions.† In addition, the Complainant maintained that he never received the Respondentís March 13, 2000 and August 20, 2001 letters advising him of the dismissal of his case and the sanction payments made by the Respondent.†

 

In his response to the grievance complaint, the Respondent maintained that the certified and overnight mailing receipts produced by the Complainant were not evidence of any letters sent to the Respondent by the Complainant.† Rather, the Respondent maintained that these mailings contained discovery materials that the Respondent had forwarded to the Complainant to complete and return to the Respondent.†

 

The Respondent testified that Attorney Sanchez-Figueroa initially advised the Complainant about the motion to dismiss and the monetary sanctions.† The Respondent stated that he thereafter met with the Complainant in October of 1998 when the Complainant appeared for his deposition and further discussed the motion to dismiss and sanctions with the Complainant.† The Respondent maintained that the Complainant was aware of the sanctions because he was questioned about his ability to pay the sanction by defense counsel at the deposition.† The Respondent further challenged the Complainantís assertion that he had no knowledge of the sanctions by producing a notarized affidavit and a financial disclosure of personal property statement signed by the Complainant on December 31, 1999 listing his assets and his financial ability to satisfy the sanction order imposed by the court.† The Respondent testified that he spoke with the Complainant by telephone on December 1, 1999 and discussed the sanction payment schedule with the Complainant.† The Respondent maintained that he advised the Complainant at this time that he would make the payments on behalf of the Complainant because the Complainant indicated that he did not have the money to satisfy the sanctions.† The Respondent contended that he also advised the Complainant that he expected to be repaid for these payments.† The Respondent advised this reviewing committee that he did not memorialize this agreement with the Complainant in writing.

 

The Respondent maintained that after sending the Complainant the March 13, 2000 letter advising that the case had been dismissed, the Complainant telephoned the Respondent to discuss the appeal, which the Respondent filed on May 1, 2000.†

 

With respect to his failure to respond to the grievance complaint, the Respondent testified that when the grievance complaint was sent to his office, he had a new secretary who mistakenly filed the complaint in the Complainantís closed file.† The Respondent maintained that he was not aware of the grievance complaint until he received the probable cause finding.† He thereafter searched his office and located the grievance complaint in the Complainantís file and subsequently filed an answer.

 

This reviewing committee concludes by clear and convincing evidence that the Respondent violated Rule 1.8(e) of the Rules of Professional Conduct.† We cannot conclude, however, that the Respondent violated Rule 1.4 of the Rules of Professional Conduct or Practice Book ß2-32(a)(1).

 

We could not conclude that the Respondent failed to keep the Complainant reasonably informed regarding the status of his case.† The record reflects that the Respondent met with the Complainant in December of 1998, approximately one month after the monetary sanctions had been issued.† We find credible the testimony of the Respondent that he discussed the sanctions and the motion to dismiss with the Complainant at that time.† Furthermore, we are persuaded by the Respondentís argument that the Complainant had knowledge of the sanctions, since he was questioned about his ability to satisfy the award of attorneyís fees at the deposition and since he signed an affidavit and completed a financial disclosure statement in connection with his ability to satisfy the sanction.† We cannot conclude by clear and convincing evidence that the Respondent failed to discuss the sanction payment schedule with the Complainant prior to submitting the schedule to the court, or that the Respondent did not advise the Complainant that he would make the sanction payments subject to reimbursement from the Complainant.† Although we are critical of the Respondent for failing to contemporaneously memorialize this understanding with the Complainant in December of 1999, we could not conclude that the Complainant did not have knowledge of such.† The Complainant maintained that he had no knowledge of the payment schedule or the Respondentís payment, however, the Respondentís March 13, 2000 and August 20, 2001 letters to the Complainant suggest that the Complainant was aware of the Respondentís actions.† We did not find credible the testimony of the Complainant that he did not receive these letters, since the letters were sent to the Complainantís correct address and were not returned to the Respondent.†

 

We also could not conclude that the Respondent failed to advise the Complainant that the case had been dismissed.† The record reflects that the March 13, 2000 letter sent to the Complainant advised the Complainant of the dismissal and requested direction from the Complainant regarding a possible appeal.† Furthermore, the Respondentís June 24, 2000 letter to the Complainant, in response to the Complainantís June 9, 2000 letter, advised the Complainant† of the status of the appeal.† A second letter regarding the status of the appeal was sent to the Complainant on April 2, 2001 and on August 20, 2001, the Complainant was advised of the decision of the Appellate Court.† Accordingly, we could not conclude that the Respondent violated Rule 1.4 of the Rules of Professional Conduct. †††

 

This reviewing committee also concludes that the Respondentís failure to timely respond to the grievance complaint did not rise to the level of a violation of Practice Book ß2-32(a)(1).† We find credible the testimony of the Respondent that his secretary mistakenly filed the grievance complaint when it was received in the Respondentís office and that the Respondent did not become aware of the complaint until he received the finding of probable cause.† We note that the Respondent did file a response thereafter.† Accordingly, we conclude that the Respondent had good cause for his failure to timely respond to the grievance complaint.

 

This reviewing committee concludes that the record supports a finding by clear and convincing evidence that the Respondent violated Rule 1.8(e) of the Rules of Professional Conduct by advancing $6,000 to the Complainant to comply with the court-ordered sanctions imposed against the Complainant in the pending federal court case.† We are not persuaded by the Respondentís argument that these payments constituted ďcourt costsĒ or ďexpenses of litigation,Ē which an attorney is permitted to pay on behalf of a client pursuant to Rule 1.8(e) of the Rules of Professional Conduct.† We conclude that the payment of sanctions on behalf of a client is not a customary court cost or expense of litigation which a client should foreseeably expect to pay as a cost or expense of the litigation of a federal wrongful termination and age discrimination lawsuit. These are not ďfinancial charges directly associated with the litigation.Ē †Rubenstein v. Statewide Grievance Committee, Sup. Ct., judicial district of New Britain at New Britain, CV02-051695S, Memorandum of Decision (Shapiro, J., June 10, 2003).† Furthermore, the financial assistance the Respondent provided to the Complainant gave the Respondent a proprietary interest in the litigation which could have led to a conflict in the Respondentís representation of the Complainant had the case not been dismissed.† Accordingly, we find the financial assistance provided to the Complainant by the Respondent to be prohibited by Rule 1.8(e) of the Rules of Professional Conduct and reprimand the Respondent.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† DECISION DATE:††††† 1/6/06

 

___________________________________

Attorney Carl Fortuna, Jr.

 

                                                   †††
Attorney Tracie Molinaro