STATEWIDE GRIEVANCE COMMITTEE

Dennis Messenger, Complainant vs. F. Mac Buckley, Respondent

Grievance Complaint #98-0130

David Messenger, Complainant vs. F. Mac Buckley, Respondent

Grievance Complaint #98-0312

Kerry A. Tarpey,Complainant vs. F. Mac Buckley, Respondent

Grievance Complaint #98-0637

DECISION

Pursuant to Practice Book 2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on April 13, 1999. The hearing addressed the records of the complaints and the probable cause determinations filed in each complaint. The complaint, in Grievance Complaint #98-0130 (Dennis Messenger v. F. Mac Buckley), was filed on August 14, 1998. On November 12, 1998, the Hartford/New Britain Judicial District, Geographical Areas 13 & 14 Grievance Panel filed its probable cause determination with the Statewide Grievance Committee. The grievance panel determined that there was probable cause that the Respondent had violated Rules 1.3, 1.4 and 1.14 of the Rules of Professional Conduct. The complaint, in Grievance Complaint #98-0312 (David Messenger v. F. Mac Buckley), was filed on October 15, 1998. On January 28, 1999, the Hartford/New Britain Judicial District, Geographical Areas 13 & 14 Grievance Panel filed its probable cause determination with the Statewide Grievance Committee. The panel determined that there was probable cause that the Respondent had violated Rules 1.3, 1.4 and 1.14 of the Rules of Professional Conduct. The complaint, in Grievance Complaint #98-0637 (Tarpey v. Buckley), was filed on February 2, 1999. On March 8, 1999, the Hartford/New Britain Judicial District, Geographical Areas 13 & 14 Grievance Panel filed its probable cause determination with the Statewide Grievance Committee. The panel determined that there was probable cause that the Respondent had violated Rules 1.3, 1.4, 1.5, 1.7(b), 1.8, 1.15(a), (b), and (c), Rule 1.16(d), and Rule 8.4(a), (b) and (c), (now Rule 8.4(1), (2) and (3)) of the Rules of Professional Conduct.

Notice of the hearing in Grievance Complaint #98-0130 was mailed to the Complainant and to the Respondent on February 24, 1999. Notice of the hearing in Grievance Complaint #98-0312 was mailed to the Complainant and to the Respondent on February 24, 1999. Notice of the hearing in Grievance Complaint #98-0637 was mailed to the Complainant and to the Respondent on March 9, 1999. Each of the Complainants appeared and testified at the April 13, 1999 hearing. The Complainant Attorney Kerry Tarpey was represented by Attorney Abbot B. Schwebel. The Complainant David Messenger was represented by Attorney Michael Devlin. The Respondent did not appear at the hearing. An exhibit was received into evidence.

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

On or about January 6, 1998, David Messenger retained the Respondent to represent him in civil and criminal matters arising out of the death of David Messenger's wife, Heather. On or about January 6, 1998, David Messenger and the Respondent signed a written retainer agreement that provided, among other things, for a $250,000.00 retainer of which one-half of the retainer ($125,000.00) was "not refundable under any circumstances." The retainer agreement stated that an additional $150,000.00 would be paid by Messenger to the Respondent should the case go to trial. On or about January 6, 1998, David Messenger also provided a power of attorney to the Respondent and the deeds to three parcels of real property, including a deed to David Messenger's family home located at 201 Singleton Road in Chaplin, Connecticut. On or about January 6, 1998, David Messenger also provided a sworn letter to a branch of Fleet Bank in Willimantic, Connecticut authorizing the bank to close out David Messenger's joint checking account and to provide the balance to the Respondent, and, on or about February 23, 1998, David Messenger provided a sworn letter to the same Fleet Bank branch authorizing the Respondent to enter his safe deposit box.

At the time he retained the Respondent, David Messenger owned three parcels of real property, consisting of his family home in Chaplin, Connecticut, and two parcels in Maine. David Messenger deeded over to the Respondent the title to these properties. At the time of the transfer, the parcels had an aggregate fair market value of approximately $575,000.00. The Respondent thereafter recorded the deed to the Chaplin property on January 6, 1998. That property alone had a fair market value of approximately $300,000.

The Respondent visited David Messenger once in January, 1998, then once in February, 1998. He did not communicate with his client again until May 11, 1998, then not again until September 25, 1998. During the time period in question, David Messenger believed that the Respondent would arrange to have him examined by a psychiatrist in order to establish a defense of mental impairment at the time of the crime. To that end, in January of 1998, the Respondent called David Messenger's mother and asked for an additional $25,000.00 to retain a psychiatric expert. The Respondent never arranged for his client to be seen by a psychiatric expert, although on or about May 25, 1998, the Respondent wrote the State's Attorney assigned to the Messenger criminal case and informed him that information regarding the psychiatric examination would be provided to the state within ten days. No information regarding a psychiatric examination was provided to the state. Additionally, there was no affirmative defense filed by the Respondent claiming that David Messenger was mentally impaired at the time of the crime.

In August of 1998, David Messenger, concerned over what he saw as a lack of communication on the Respondent's part, hired Attorney Kerry Tarpey of Rockville, Connecticut to facilitate communication with the Respondent and to determine the status of the criminal and civil cases. On August 14, 1998, David Messenger sent the Respondent a written revocation of the power of attorney, and through Attorney Tarpey, a demand for an accounting. Attorney Tarpey reviewed the criminal file and noticed that no claim of mental impairment had been filed by the Respondent. On or about October 27, 1998, Attorney Tarpey wrote to the Respondent and demanded an accounting. She also sent a list of seventeen questions to the Respondent to obtain information regarding the status of David Messenger's assets. The Respondent did not send an accounting and the questions were not answered. On October 30, 1998, Attorney Tarpey sent the Respondent a letter discharging him and demanding the return of the unused portion of the Messenger retainer. Thereafter, Attorney Michael Devlin filed his appearance on behalf of David Messenger in the criminal case.

On November 9, 1998, Attorney Tarpey wrote the Respondent demanding information and materials on David Messenger's criminal case and threatening "court action" if the information and materials were not received. In response, the Respondent sent Attorney Tarpey a copy of the retainer agreement between him and David Messenger and two checks totalling $106,439.58. The Respondent's letter indicated that he would be in court on the Messenger case on November 13, 1998. Attorney Tarpey met with the Respondent in court on that date, but no accounting was provided, although the Respondent promised an accounting within one week. On December 18, 1998, in response to two additional letters and several phone calls, the Respondent promised an accounting, the deeds to the Connecticut and Maine properties and the keys to the premises located thereon, by December 23, 1998. The Respondent also promised to arrange a meeting with Attorney Devlin to provide him with a copy of the criminal file. The Respondent did not provide a copy of the file to Attorney Devlin, an accounting to Attorney Tarpey or the house keys. On February 1, 1999, the Respondent provided the original quit claim deed on the Chaplin, Connecticut property to Attorney Tarpey as well as the front door key. The deeds to the Maine properties were not provided to Attorney Tarpey.

After he was retained, the Respondent, through the deed to the real property and the power of attorney, came to control approximately $993,000.00 of David Messenger's assets in the form of real and personal property. He thereafter returned approximately $106,000.00 in cash and the deed to the Chaplin, Connecticut property. The Respondent liquidated David Messenger's retirement account with his employer, Nicolet, which had an approximate value of $160,000.00. The Respondent also liquidated a Paine Webber account of David Messenger's with an approximate value of $66,000.00. The Respondent further liquidated a Parnassus investment account, which had an approximate value of $69,000.00. The Respondent withdrew approximately $16,750.00 from David Messenger's Fleet Bank account. The Respondent sold David Messenger's personal automobile for $16,865.00. Finally, the Respondent opened a credit line to himself on David Messenger's MBNA Visa card in the amount of $22,500.00. The Respondent used a portion of this credit line on personal items.

As of the date of this hearing, no accounting has been provided to Attorney Tarpey or David Messenger by the Respondent. Approximately $237,600.00 of David Messenger's assets Grievance Complaints 98-0130, 98-0312 and 98-0637 remain unaccounted for.

This reviewing committee also considered the following evidence:

At the hearing on April 13, 1999, David Messenger characterized his mental state as of January 6, 1998 as "a mess." It was on January 6 that Messenger signed the retainer agreement, the power of attorney, the deeds to his real property and one of the letters to Fleet Bank.

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

This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in serious misconduct with regard to his representation of David Messenger. When retained in January of 1998, David Messenger was in a fragile mental state, having been charged with a serious crime. Nonetheless, the Respondent induced David Messenger to sign a fee agreement that provided for a $250,000.00 pretrial retainer, of which $125,000.00 was not refundable under any circumstances. Additionally, on that day, the Respondent induced Messenger to sign a power of attorney in favor of the Respondent, to sign over three parcels of real property to the Respondent and to write a letter to his bank in order to liquidate a checking account. We believe that the Respondent's conduct in inducing a client in a fragile mental state to sign these documents violated Rule 1.14 of the Rules of Professional Conduct, which requires a lawyer to maintain a normal client-lawyer relationship with a client who is mentally impaired. We conclude that this conduct also violated Rule 8.4(3) of the Rules of Professional Conduct, because there is clear and convincing evidence that the Respondent's motive in obtaining the fee agreement, the power of attorney, the deeds and the bank letter was fraudulent.

This reviewing committee concludes that the size of the fee in this case was unreasonable, in light of the size of the pretrial retainer and the fact that such a large amount of the retainer was not refundable under any circumstances. Under these facts, the Respondent violated Rule 1.5(a) of the Rules of Professional Conduct, which requires a lawyer's fee to be reasonable.

This reviewing committee also concludes that by obtaining the power of attorney and property deeds from David Messenger and thereby gaining control over his assets, the Respondent violated Rule 1.7(b) of the Rules of Professional Conduct, which prohibits representation of a client where the representation is limited by the lawyer's own interests. Additionally, at no time did the Respondent, before obtaining an ownership or possessory interest in David Messenger's assets, advise his client to seek independent counsel regarding the power of attorney or the property deeds, nor was there any consent by David Messenger in writing to provide the power of attorney or the property deeds. This conduct violated Rule 1.8(a) of the Rules of Professional Conduct.

After being retained, the Respondent failed to diligently represent his client in violation of Rule 1.3 of the Rules of Professional Conduct. He failed to arrange for a psychiatric examination of David Messenger and to prepare the defense of his case accordingly. Additionally, the Respondent failed to communicate properly with his client about the status of his criminal case and failed to return telephone calls and communications from David Messenger, all in violation of Rule 1.4 of the Rules of Professional Conduct.

We conclude that the Respondent failed to safeguard the property of David Messenger in violation of Rule 1.15(a), (b) and (c) of the Rules of Professional Conduct. There is clear and convincing evidence that the Respondent failed to keep David Messenger's property separate from his own property, and to keep Messenger's funds in a separate account, in violation of Rule 1.15(a) and (c). There is also clear and convincing evidence that the Respondent failed to return assets to David Messenger or Attorney Tarpey, or provide an accounting as to their whereabouts, despite repeated demands, in violation of Rule 1.15(b). Once he was discharged from the case, the Respondent failed to cooperate with either Attorney Tarpey or Attorney Devlin in violation of Rule 1.16(d) of the Rules of Professional Conduct.

The Respondent violated Rule 8.4(1) and (3) of the Rules of Professional Conduct by fraudulently inducing David Messenger to provide the Respondent with significant control over Messenger's assets, then doing little or no work on the Messenger file while at the same time liquidating his assets. Additionally, the Respondent violated these subsections of Rule 8.4 by opening a credit line on David Messenger's MBNA Visa, then using a portion of the credit line on personal items.

We do not believe that there is clear and convincing evidence of a violation of Rule 8.4(2) of the Rules of Professional Conduct, which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other aspects. In this case, there has been no finding as of the date of this decision of any criminal conduct on the part of the Respondent.

Based upon this reviewing committee's determination that the Respondent violated Rules 1.3, 1.4, 1.5, 1.7(b), 1.8, 1.14, 1.15(a), (b) and (c), Rule 1.16(d), and Rules 8.4(1) and (3), we order that the Respondent be presented to the Superior Court for whatever discipline the court deems appropriate.

Attorney Alfred R. Belinkie

Attorney Randy L. Cohen

Mr. Thomas J. McKiernan