STATEWIDE GRIEVANCE COMMITTEE
Randall McHugh, Complainant vs. Robert Izzo, Respondent
Grievance Complaint #01-0228
Scott J. Atkinson, Complainant vs. Robert Izzo, Respondent
Grievance Complaint #01-0307
Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 95 Washington Street, Hartford, Connecticut on February 14, 2002. The hearing addressed the record of the complaints filed on September 11, 2001 and October 11, 2001, and the probable cause determinations filed by the New Britain/Hartford Judicial District, Geographical Areas 12 and 16 Grievance Panel on November 21, 2001, finding that in each file there existed probable cause that the Respondent violated Rules 1.15 and 8.4 of the Rules of Professional Conduct and Practice Book Sections 2-27(a) and 2-32(a)(1).
Notice of the hearing was mailed to the Complainants and to the Respondent on January 3, 2002. At the hearing, Complainant Atkinson did not appear. Complainant McHugh appeared at the hearing and was represented by Yale Law School student intern Ryan Bubb. Mr. Bubb's supervising professor, Attorney Deborah Cantrell, filed an appearance on behalf of Complainant McHugh. Notwithstanding being served with a subpoena on January 15, 2002, the Respondent did not appear before this reviewing committee. Two exhibits were admitted into evidence. The grievance complaints were consolidated by this reviewing committee for the purposes of conducting the hearing.
The parties were advised that a layperson would not be present at the hearing. Complainant McHugh waived the participation of a layperson. Accordingly, this decision was rendered by the undersigned.
This reviewing committee finds the following facts by clear and convincing evidence:
Complainant Atkinson retained the Respondent to represent him in the sale of his condominium located in Bristol, Connecticut (hereinafter referred to as the "Bristol Property"). The closing took place on July 20, 2001. Out of the sale proceeds, Complainant Atkinson was obligated to pay off the existing mortgage on the Bristol Property to the mortgage holder, McCue Mortgage. The Respondent provided McCue Mortgage with check #2932 from his clients funds account dated July 20, 2001 in the amount of $58,558.43 to satisfy Complainant Atkinson's mortgage. On August 1, 2001, McCue Mortgage deposited the check into its business account. On August 3, 2001, McCue Mortgage sent the Respondent a release of Complainant Atkinson's mortgage. When the payoff check was presented to Webster Bank on August 3, 2001 it was not honored because sufficient funds were not in the account.
On or about August 7, 2001, McCue Mortgage was notified that the Respondent's check had been returned due to insufficient funds in the account. Shortly thereafter, McCue Mortgage notified the Respondent by telephone that the check he had given them for the Atkinson mortgage had bounced. Notwithstanding the fact that the mortgage was not paid, the Respondent recorded the release of the mortgage on August 17, 2001. After numerous assurances from the Respondent that he would replace the check with good funds, and the Respondent's failure to do so, McCue Mortgage contacted the Complainant, Attorney Randall McHugh, to represent their interests with regard to recovering the funds owed. By fax dated August 26, 2001, the Respondent requested that Complainant McHugh send a revised payoff amount due to McCue Mortgage including late fees and additional interest which had accrued. On August 28, 2001, the Respondent left a Webster Bank cashier's check at Complainant McHugh's law office in the amount of $45,800.00. Enclosed with the check was a hand written note which read, inter alia, "[a] check for balance (sic) of $13,574.86 to be delivered on or before 8/29/01." The Respondent never paid the balance due on the mortgage.
On September 5, 2001, McCue Mortgage made a demand for the unpaid balance on Complainant Atkinson and advised him that if no payment was made it would initiate foreclosure proceedings against him. Connecticut Attorneys Title Insurance Company has since satisfied Complainant Atkinson's mortgage to McCue Mortgage.
This reviewing committee took into consideration documents which were subpoenaed by the Statewide Grievance Committee pursuant to an interim suspension petition it initiated against the Respondent, including the Respondent's clients' funds bank statements and checks for the months of July and August, 2001. The July statement indicates that on July 19, 2001, the Respondent's clients' funds account contained sufficient funds with which to satisfy Complainant Atkinson’s mortgage. The July statement also indicates that on July 20, 2001, when the closing occurred and the Respondent gave McCue Mortgage a check from his clients' funds account in the amount of $58,558.43, the balance in the account was only $21,391.46. On July 20, 2001, the Respondent cashed a check from his clients' funds account, made payable to himself with no accompanying memo, in the amount of $400.00. On August 1, 2001, the date McCue Mortgage deposited the Respondent's check for the Atkinson mortgage into its' bank, the balance in the Respondent's clients' funds account was only $45,479.75. Also on that date, the Respondent paid himself $275.00 in fees for representing Complainant Atkinson in the closing. On August 3, 2001, when the Respondent's clients' funds check was presented to Webster Bank, the check caused the balance in the account to be negative $13,129.23.
Notwithstanding the fact that the Respondent was aware that during the month of August, 2001 the mortgage was unpaid on Complainant Atkinson's behalf, the Respondent made three cash withdrawals totaling $150.00 and wrote five checks, payable to himself, totaling $1,520.00 from his clients' funds account. Additionally, the Respondent wrote check #2968 dated August 9, 2001, payable to "Bernie's" in the amount of $249.02. The Respondent wrote check #2968 dated August 10, 2001, payable to "SNET" in the amount of $700.00. The Respondent wrote check #2954 dated August 30, 2001, payable to "HP Scarpo" in the amount of $700.00. This check contained the deposit stamp "H.P. Scarpo & Sons Automotive" on the back.
The August statement indicates that on August 28, 2001, when the Respondent gave Complainant McCue a cashier's check from Webster bank in the amount of $45,800.00, he also presented to Webster Bank a check from his clients' funds account made payable to "Robert Izzo or cash" in the amount of $45,805.00. This withdrawal left a balance in the account of $312.10. On August 29, 2001, when the Respondent promised Complainant McCue the balance would be paid on the Atkinson mortgage in the amount of $13,574.74, the balance in the Respondent's clients' funds account was negative $60.30.
This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in ethical misconduct. The Respondent violated Rules 1.15 and 8.4 of the Rules of Professional Conduct and Practice Book §2-27(a) by failing to protect Complainant Atkinson's interests when he received the funding to pay off the existing mortgage on the Bristol property and by misappropriating funds that were due to Complainant McHugh on behalf of McCue Mortgage for his own use. The respondent failed to answer the grievance complaint in violation of Practice Book §2-32(a)(1).
This reviewing committee finds that the Respondent's violations of the Rules of Professional Conduct and the Practice Book constitute serious misconduct and warrant the imposition of discipline. Accordingly, we order the Respondent presented to the Superior Court for the imposition of whatever discipline the Court deems appropriate. Under these circumstances, this reviewing committee would normally order the record of this complaint and this decision to be forwarded to the Chief State's Attorney's Office for further investigation. This reviewing committee is aware, however, that the Respondent has been arrested and charged based on the facts set forth in the complaint, and therefore refrains from doing so. Nontheless, since we are ordering that the Respondent be presented to the Superior Court for the imposition of whatever discipline the Court deems appropriate, and a presentment is a de novo proceeding, we order that the presentment complaint include a finding that the Respondent failed to attend the reviewing committee hearing, despite being served with a subpoena, in violation of Rules 8.1(2) and 8.4(4) of the Rules of Professional Conduct.
Attorney Anne Hoyt
Attorney Katherine Webster-O'Keefe