STATEWIDE GRIEVANCE COMMITTEE
Michael T. Rose, Complainant vs. Robert A. Heghmann, Respondent
H. R. Stender, Elvira Wirth, Edward Spence, Complainants vs. Robert A. Heghmann, Respondent
Grievance Complaint #01-0252A
DECISION
Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 95 Washington Street, Hartford, Connecticut on January 9, 2003. The hearings addressed the records of the following complaints: Rose v. Heghmann, Grievance Complaint #00-0814 (hereinafter “Rose complaint”), which was filed on April 16, 2001, and Stender, Wirth and Spence v. Heghmann, Grievance Complaint #01-0252A (hereinafter “Stender complaint”), which was filed on September 20, 2001. The Rose complaint resulted in a finding of probable cause filed by the Stamford/Norwalk Judicial District Grievance Panel on September 28, 2001, finding that there existed probable cause that the Respondent violated Rules 1.6 and 1.9 of the Rules of Professional Conduct. The Stender complaint resulted in a finding of probable cause issued by a reviewing committee of the Statewide Grievance Committee on April 19, 2002, finding that there existed probable cause that the Respondent violated Rules 1.6 and 1.9 of the Rules of Professional Conduct, with regard to the Respondent’s representation of the Complainant Stender (additional Complainants Elvira Wirth and Edward Spence were not a part of the probable cause findings). The reviewing committee’s finding of probable cause in the Stender complaint was contrary to a finding of no probable cause filed by the Stamford/Norwalk Judicial District Grievance Panel on February 20, 2002.
A status conference was held in the Rose complaint on January 3, 2002, notice of which was mailed to the Complainant Rose and to the Respondent on December 3, 2001. Both the Complainant Rose and the Respondent appeared on January 3, 2002, and at the request of both the Complainant Rose and the Respondent, the matter was stayed due to the pendency of motions in a federal district court action and the pendency of other grievance complaints, including the Stender complaint. By letters dated September 18, 2002 and November 15, 2002, the Respondent notified the Statewide Grievance Committee of the resolution of the federal court motions, and requested that hearings be scheduled.
Notice of the January 9, 2003 hearings was mailed to the Complainants and to the Respondent on December 3, 2002. At the January 9, 2003 hearings, the Complainant Stender appeared and testified. The other Complainants did not appear. The Respondent did not appear, pursuant to a letter dated January 7, 2003, in which he stated the reason for his decision not to appear, and reiterated and expanded upon his prior answers to the probable cause findings. This letter of January 7, 2003 was accepted and considered by the reviewing committee.
Prior to the hearings on January 9, 2003, the Complainant Stender filed an application with the Connecticut Superior Court to seal the record in this matter. That application was denied by the court.
At the hearings on January 9, 2003, reviewing committee member William Carroll was not available. Since the Complainant Stender waived Mr. Carroll’s participation, this decision was rendered by the undersigned. Additionally, although the grievance complaints were filed separately, since the probable cause findings concerned essentially identical matters, it was the determination of this reviewing committee that a single, consolidated decision be issued.
This reviewing committee finds the following facts by clear and convincing evidence:
The Complainant Michael T. Rose is an attorney in South Carolina. The Complainant H. R. “Jock” Stender is a resident of South Carolina, with business interests relating to the port of Charleston, South Carolina.
In April of 2000, the Complainant Rose retained the Respondent regarding representation in legal matters, including pursuing an action for civil rights violations, libel, slander and other claims against various defendants in South Carolina arising out of a campaign for the South Carolina State Senate in 1997. The Respondent drafted a complaint to pursue these claims entitled Vander Linden v. Wilbanks, which was filed on April 20, 2000 in the United States District Court for the District of South Carolina (Civil Action No. 2:00-1230-18). The Vander Linden lawsuit was subsequently dismissed by the court (Norton, J.) on December 6, 2000.
The Complainant Rose is an attorney for the Complainant Stender and his company, Carolina Marine Handling, Inc., and introduced the Respondent to the Complainant Stender. The Complainant Stender retained the Respondent regarding claims he had arising out of bidding for, and access to, facilities in the port of Charleston, South Carolina subsequent to the closing of the Charleston Naval Base. The Complainant Stender was then, and is currently, involved in litigation at the state and administrative levels involving similar issues. By a retainer agreement dated April 29, 2000, the Respondent agreed to pursue a federal lawsuit on behalf of the Complainant Stender and others in the United States District Court. The retainer agreement stated that the Respondent would be assisted by the Complainant Rose, who would act as local counsel in South Carolina.
On or about June 9, 2000, the Respondent filed a lawsuit in the United States District Court for the Eastern District of Virginia captioned Stender v. Cohen (No. CA-00-946-AA). The complaint listed the Complainants Stender, Wirth and Spence as plaintiffs, along with eight others, including Dennis L. Wirth. The first named defendant was William S. Cohen, the then Secretary of Defense. The lawsuit stated that the plaintiffs sought relief for losses arising out of the implementation of the closure of the Charleston Naval Base. This lawsuit was subsequently withdrawn in the hope of fostering settlement discussions with the defendants. There were subsequent discussions regarding the filing of a new lawsuit, but the relationship between the Respondent and the Complainants Rose and Stender began to deteriorate. The Respondent prepared and drafted a new complaint, which added new defendants and allegations of violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). This complaint was filed on September 8, 2000 in the Eastern District of Virginia as Carolina Marine Handling, Inc. v. Cohen (No. CA-00-1505-A), although the Respondent did not sign this complaint. The plaintiffs were the same as in the previous Virginia action, with the exception of Dennis L. Wirth.
On or about October 3, 2000, the Respondent filed a lawsuit on behalf of Dennis L. Wirth in the U.S. District Court for the District of Connecticut. This lawsuit was entitled Interworld Maritime Corporation, Inc. and Dennis L. Wirth v. BMW of North America (Civil Action No. 3:00 CV1903 (CFD)). Like the original Virginia action, then Secretary of Defense William S. Cohen was listed among the defendants, and the lawsuit similarly stated that the plaintiffs were seeking relief for losses resulting from the implementation of the closure of the Charleston Naval Base. Like the Virginia RICO action, the Connecticut action also included a claim that the defendants had violated RICO.
Shortly after the Connecticut lawsuit was filed, the Respondent sent an email to Sean Trundy, an attorney who had previously represented one of the defendants. The email, dated October 5, 2000, included the following statements by the Respondent:
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I should advise you that I represent solely Mr. Wirth and Interworld Maritime Corporation. Briefly this year I assisted Attorney Michael Rose and his client, H.R. “Jock” Stender, in filing a suit in Virginia. Some of the tactics of Mr. Rose, including litigating cases in the press, did not suit me and I have separated myself from them in relation to the Naval Base. Although I believe that my clients have a valid claim against Mr. Tapp and his associates, I have no reason to believe that he should be embarrassed or attacked personally…. I was very much disturbed by the personal nature of the litigation and the character attacks associated with it in connection with the Naval Base. While 25 years of practice has given me a pretty thick skin, I prefer not to engage in those types of activity.
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On October 26, 2000, the Respondent sent an email to Joseph Click, an attorney for the defendants in the Connecticut action, which included the following:
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One of the reasons that I chose to file on behalf of Mr. Wirth only and to file in Connecticut was to avoid the “circus” type atmosphere that has surrounded some of the prior litigation that has taken place in South Carolina. I am committed to continue to work toward that end, however, someone in Charleston informed Mike Rose of this litigation and now the media is getting involved. Mike has a nasty tendency of litigating his cases in the media.…
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Normally in a case such as this, both sides explore despositive [sic] motions before beginning to explore settlement. You and your clients may want to consider a different approach in this matter. First, Judge Droney moves with a great deal of care in connection with cases on his calendar. In other words, his cases tend to move slowly. Second, the longer this case continues, especially if it attracts media attention, the more likely parties will join the litigation whose past “vendetta” type tactics will make reasonable settlement impossible. I am sure your clients will be able to identify those of whom I speak.
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On October 30, 2000, the Respondent sent another email to Attorney Click, which stated the following:
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With regard to Mr. Stender, it has been Mike Rose’s policy in the past to assemble a posse to support Mr. Stender in his litigation. Although they are all ostensibly plaintiffs, the real role of the additional plaintiffs is to support Jock.
I have learned from colleagues that Mike Rose is calling around trying to find someone who will provide him with a copy of the Wirth complaint. Sooner or later, he will obtain a copy, edit it and probably proceed with some type of suit. As I am sure your clients will advise you, the problem with Mike and Jock is that their litigation quickly degenerates into personal attacks. This is what drove my client Dan Wirth away from them. He was an original plaintiff in an earlier taxpayer case but decided to distance himself and his claims from them after learning more about their methods.
Mike Rose is not a very good attorney but he can copy and edit. My concern is that he will find some way to attach himself to this litigation. Once he does, this case also will quickly degenerate. At some point, it will no longer be able to be settle [sic] because of Jock’s and Mike’s presence. I know at this point that you might think that I am unbalanced, but ask your clients and people like Jim Bryan and Sprott and what I mean concerning Mike and Jock.
The more pleadings and legal arguments you and I make available to Mike Rose, the worse he will make it for your clients. While you and I are battling over the facts and the law, Mike and Jock will be holding press conferences explaining what no good S.O.B.’s [sic] your clients are so that everyone in Charleston can read about it in the morning papers. If you do not believe me, ask your clients. As far as legal work, all Mike will do is copy and edit my pleadings and arguments just as he plans to copy my complaint.
In instituting this action, I have tried to separate myself tactically from Mike and Jock. There have been no press releases and I did not inform Mike and Jock of the action. I did not want a circus or a media event. Apparently, someone else did inform Mike and Jock and now there will be a story in the Wall Street Journal probably this week. When I spoke to the Journal, I emphasized my disappointment with the Navy. Other than the facts in the complaint, I did not dwell on your clients personally. Once that story hits, however, Terry Joyce of the Post and Courier will follow up with other stories including quotes and allegations by Mike and Jock against your clients personally.
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My guy still wants to deal. If you decide not to discuss settlement now, that is fine with me, however, from here on out everything goes downhill. Your clients and their contacts have the ability to settle this case virtually immediately. Their friends in Charleston control the Base. If they want to settle, my client and I will work with them to make whatever is agreed to politically expedient. This is business, not personal. But you cannot possibly imagine the mayhem Rose and Stender will create once they worm their way into this suit. Every day this case continues, the greater the risk that they will become involved.
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The Complainants Rose and Stender did not learn of these emails by the Respondent until they became aware of a motion dated January 23, 2001, filed by certain defendants in the Connecticut action seeking sanctions from the Respondent and his clients alleging that the Connecticut lawsuit was frivolous and vexatious. The motion for sanctions cited the emails noted above as supporting its claim that the Connecticut lawsuit was filed in bad faith.
In a memorandum in opposition to the motion for sanctions, dated February 14, 2001, the Respondent stated on page 7 that “H.R. ‘Jock’ Stender and his attorney, Michael Rose, have embarked on a series of ill considered legal and political actions.” Accordingly, “because of the past history,” the decision was made to separate the Wirth RICO action from Stender and Rose. The Respondent goes on to state that when Stender and Rose were advised of this decision, “they attempted to dictate terms” to Wirth and his company. The Respondent attached an email from the Complainant Rose, further discussing the split between Wirth and the Complainants Rose and Stender. The Respondent stated on page 8 of the memorandum that he had refused to become involved in the Virginia RICO action, although stating that “Rose used one of my drafts to file a RICO action in Virginia,” but that “[w]hen Rose could not compel me to lead that case on behalf of Stender, he apparently decided to abandon it.” The Respondent then goes on to discuss at pages 8-9 of the memorandum the Vander Linden lawsuit, stating that “service was to be accomplished by the client,” and why Rose and his local counsel “permitted the 120 days to pass remains a mystery.” The Respondent further states that, after reviewing documents from the defendants in that matter, “I realized that I had been mislead by my client, Michael Rose, as to certain critical facts relating to the pleadings.” Finally, in an attempt to demonstrate the Respondent’s efforts to resolve the Wirth claim even prior to the lawsuit being filed, the Respondent attached a copy of a September 13, 2000 letter from him to Susan Wall, an attorney for one of the proposed defendants, in which the Respondent stated that if the suit is filed, a “problem” arises because then “Stender knows of Dan [Wirth]’s initiative and plans to file a ‘me too’ suit as soon as he and Mike Rose can get their hands on the complaint.”
Finally, in the defendants’ reply memorandum regarding the motion for sanctions, they noted another settlement document, dated March 10, 2000, but apparently sent on January 26, 2001, from the Respondent to Attorney Click, in which the Respondent purported to include the Complainant Stender in his settlement proposal, noting that “as long as [Stender] is out there making trouble he is a potential danger …. I cannot guarantee he will take the offer even though it is his only realistic opportunity to get back on the base. His attorney, Mike Ross [sic], is an incompetent buffoon but we will try to reach an agreement with him to end the litigation….”
The reviewing committee also considered the following:
While the Respondent acknowledged that his descriptions and opinions concerning the Complainants Stender and Rose “were less than complimentary,” he maintained that they were part of an attempt to enter into settlement negotiations on the Wirth claim and were therefore protected by Federal Rule of Evidence 408, which states as follows:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Fed. R. Evid. 408. The Respondent maintains that since the statements were made as part of settlement negotiations in the Connecticut federal lawsuit, they are protected communications and cannot form the basis for grievances, as this would place an unjustifiable restraint upon efforts to negotiate settlements.
This reviewing committee concludes by clear and convincing evidence that the Respondent violated the Rules of Professional Conduct. The Respondent revealed information relating to the representation of clients, without the consent of those clients, in violation of Rule 1.6(a) of the Rules of Professional Conduct. The statements by the Respondent concerning the Complainants Stender and Rose, detailed above, constitute blatant breaches of a lawyer’s obligation of confidentiality to clients or former clients. The Respondent’s statements not only personally insulted the Complainants Stender and Rose, but disparaged their motives and methods in the lawsuits in which the Respondent had represented them, and also purported to reveal both their prior litigation strategies and their potential future conduct and prospects in ongoing legal disputes. This was clearly the revelation of information relating to representation of clients, done without consultation or consent, in violation of Rule 1.6(a). Additionally, the Respondent made these disclosures in an attempt to promote settlement on behalf of a current client, to the disadvantage of the Complainants Stender and Rose, on whose behalf he had previously litigated against some of the same defendants, in violation of Rule 1.9(b) of the Rules of Professional Conduct.
This reviewing committee finds the Respondent’s argument based on federal Rule of Evidence 408 to be wholly without merit. Initially, the reviewing committee notes that Rule 408 governs only the admission of evidence at trial in a lawsuit, and since the Complainants Stender and Rose were not parties to the Connecticut litigation, there is absolutely no nexus between the application of the federal Rules of Evidence in that lawsuit and the Complainants’ ability to file grievances regarding the Respondent’s representation of them. Even if it had some application here, Rule 408, on its face, only prohibits admission “to prove liability for or invalidity of the claim or its amount.” Indeed, the portion of Rule 408 not cited by the Respondent expressly states that exclusion is not required when the evidence is offered for other purposes, such as proving bias.
This reviewing committee views the Respondent’s conduct in this matter as a very significant breach of the Rules of Professional Conduct. The Respondent’s numerous and serious disclosures of confidential information strike at the heart of an attorney’s duty of loyalty to clients or former clients. Accordingly, it is the decision of this reviewing committee that the Respondent be presented to the Superior Court, for violating Rules 1.6(a) and 1.9(b) of the Rules of Professional Conduct, for the imposition of whatever discipline the court deems appropriate.
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Attorney Vincent M. DeAngelo
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Attorney Tracie Molinaro