STATEWIDE GRIEVANCE COMMITTEE
Darin Fenner, Complainant vs. Alberto V. Zappala, Respondent
Grievance Complaint #01-0075B
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 July 3, 2002. The hearing addressed the record of the complaint filed on July 20, 2001, and the probable cause determination filed by a reviewing committee of the Statewide Grievance Committee on January 18, 2002, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.3 and 8.1(2) of the Rules of Professional Conduct, as well as Practice Book §2-32(a)(1). The reviewing committee's probable cause determination was contrary to the determination of no probable cause filed by the New Haven Judicial District, Geographical Areas 7 & 8 Grievance Panel on October 23, 2001.
Notice of the hearing was mailed to the Complainant and to the Respondent on May 30, 2002. The Complainant appeared at the hearing and testified. The Respondent did not appear at the hearing.
This reviewing committee finds the following facts by clear and convincing evidence:
The Respondent represented the Complainant in an uncontested dissolution of marriage action. During the representation, the Complainant informed the Respondent that he believed that the oldest of the three minor children born during the marriage was not his. When the Complainant and the Respondent were in court for the uncontested divorce, the Complainant's wife indicated that the Complainant was lying about the paternity of the oldest child. As such, the Respondent informed the Complainant that the divorce would take longer as the Complainant would need a paternity test. The Complainant asked the Respondent if there was any way around that, and the Respondent advised the Complainant that he could go forward with the uncontested divorce that day, and then bring up the paternity issue at a later date. The Complainant followed the Respondent's advice and proceeded with the uncontested divorce. The decree of dissolution entered in July of 1993. In July of 1997, the Complainant had DNA tests performed on himself and each of the three children. The results revealed that only the youngest child was his. The Complainant raised the paternity issue in both Georgia and Connecticut courts after the DNA tests were performed, but was informed that it was too late to challenge paternity. As a result, the Complainant has a child support obligation for all three minor children, despite the fact that two of the children are not his.
The Respondent did not respond to the grievance complaint.
This reviewing committee also considered the following:
The Complainant testified that he followed the Respondent's advice because he wanted to get the divorce over with and move on with his life. When the Complainant and the Respondent were in court for the uncontested divorce, the Complainant asked the Respondent if there was any way that they could get the divorce done that day. The Respondent indicated that it would be hard to challenge paternity and proceed with the divorce because such a challenge would delay the dissolution. The Respondent, however, also said that the Complainant could proceed with the uncontested divorce and pursue the paternity issue at a later date. As such, the Complainant believed that the uncontested divorce would go through the day he and the Respondent were in court; however, the divorce was not finalized for approximately another eight months, during which time the Complainant could have had the DNA tests done. Moreover, the Respondent did not indicate the length of time it would take to challenge paternity if the Complainant had chosen to do so instead of proceeding with the uncontested divorce. Additionally, the Complainant testified that his delay in getting the DNA tests done and challenging paternity was due to the fact that he had no money and that he moved to Texas and then Georgia with the military. Finally, the Complainant testified that he currently has an irrevocable child support obligation of $200 per week for all three children.
This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:
The Respondent violated Rule 1.1 of the Rules of Professional Conduct by failing to provide the Complainant with competent representation. Although the Complainant expressed doubt to the Respondent as to the paternity of the oldest child, the Respondent still advised the Complainant to go forward with the uncontested divorce despite the fact that this would entail admitting paternity of all three children. The Respondent also advised the Complainant that he could challenge paternity at a later date. This advice was clearly incompetent as it was contrary to well established law. The Connecticut Supreme Court has noted on several occasions that the courts have the inherent power to open stipulated judgments obtained by fraud, duress or mistake. See, e.g., Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). There was no evidence that the Complainant agreed to the uncontested divorce based on duress. Additionally, given that the Complainant had doubts about paternity prior to agreeing to the uncontested divorce, no good faith argument could be made that the Complainant's agreement to the uncontested divorce was based on fraud or mistake concerning paternity. Accordingly, there was no basis upon which to believe that the Complainant could challenge paternity after agreeing to the uncontested divorce. As could be anticipated, the Complainant was indeed foreclosed from challenging paternity.
The Respondent also violated Rule 1.3 of the Rules of Professional Conduct by failing to act with reasonable diligence in representing the Complainant. The Respondent's representation
of the Complainant was in relation to an uncontested divorce, which entailed limited work on the Respondent's behalf given that there was no dispute as to any of the issues. The Complainant, however, raised the issue of paternity with the Respondent. As such, the matter should have been treated as a contested divorce from that point forward. This clearly would have required additional work on the Respondent's behalf. To this reviewing committee, the Respondent's advice to agree to the uncontested divorce at that time and challenge paternity later was an attempt to escape any such additional work obligations, and reflects indifference on the Respondent's behalf to the needs and interests of the Complainant.
Additionally, since the Respondent failed to respond to the grievance complaint, this reviewing committee concludes that the Respondent violated Rule 8.1(2) of the Rules of Professional Conduct by knowingly failing to respond to a lawful demand for information from a disciplinary authority in connection with a disciplinary matter. Finally, this reviewing committee concludes that the Respondent's failure to answer the grievance complaint was without good cause in violation of Practice Book §2-32(a)(1) given that no evidence of good cause was presented to this committee.
Accordingly, since this reviewing committee concludes that the Respondent violated Rules 1.1, 1.3 and 8.1(2) of the Rules of Professional Conduct and Practice Book §2-32(a)(1), we order that the Respondent be presented to the Superior Court for the imposition of whatever discipline the court may deem appropriate.
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Attorney
Rita A. Steinberger
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Attorney
Dominick J. Rutigliano
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Mr. William Carroll