Charles Dignazio, Complainant vs. Andrew DiPietro Respondent
Grievance Complaint #01-0629
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 October 10, 2002. The hearing addressed the record of the complaint filed on January 18, 2002 and the probable cause determination rendered by a reviewing committee of the Statewide Grievance Committee on July 19, 2002, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct. On September 9, 2002 a reviewing committee of the Statewide Grievance Committee issued an additional finding of probable cause that the Respondent violated Rule 1.15 of the Rules of Professional Conduct. The reviewing committees’ probable cause determinations were contrary to a finding of no probable cause filed by the New Haven Judicial District, Geographical Areas 7 and the towns of Branford, East Haven, Guilford, Madison and North Branford Grievance Panel on June 5, 2002.
Notice of the hearing was mailed to the Complainant and to the Respondent on September 9, 2002. At the hearing, the Complainant and the Respondent appeared and testified.
This reviewing committee finds the following facts by clear and convincing evidence:
The Complainant retained an attorney in 1997 to file a bankruptcy petition on his behalf. The Complainant's bankruptcy was filed and his debt discharged in 1998. After the Complainant’s debt was discharged in bankruptcy, the Complainant was beleaguered by the Department of Education demanding repayment of the Complainant's student loans. Believing that the Department of Education's loans should have been discharged in his bankruptcy, the Complainant retained the Respondent in March of 2000 to re-open the bankruptcy petition and to file an adversarial petition requesting that the Department of Education's debt be discharged. The Respondent agreed to represent the Complainant and the Complainant paid the Respondent a non-refundable $2,000 retainer and a $200 fee for filing the motion to re-open.
After their initial meeting, the Complainant did not communicate with the Respondent until July of 2000, when he wrote a letter to the Respondent requesting a monthly accounting and an update on the status of his bankruptcy petition. The Respondent telephoned the Complainant approximately two weeks after receipt of the letter and assured him that the bankruptcy matter was progressing. The Complainant telephoned the Respondent on several occasions during September and October of 2000 in order to obtain information on the status of the bankruptcy petition. The Respondent did not return these telephone calls.
The Respondent filed a motion to re-open the Complainant's bankruptcy petition on October 31, 2000. Subsequently, the Respondent concluded that the debt was not dischargeable under current federal bankruptcy law. The Respondent did not discuss his conclusion that the Department of Education's loans were not dischargeable with the Complainant. The Respondent did not pursue the Complainant's adversarial petition and did not advise the Complainant that he was not pursuing the matter further. The Complainant's motion to re-open and the adversarial petition were eventually dismissed.
On May 7, 2002, the Respondent returned the Complainant's file and refunded the $2,000 retainer the Complainant had paid him. The funds the Respondent gave to the Complainant were disbursed from the Respondent's clients' funds account. On June 26, 2002, the Statewide Bar Counsel requested that the Respondent explain why he used clients' funds to refund the Complainant's fee. In his response dated August 16, 2002, the Respondent explained that he had re-deposited the funds into his clients' funds account when he became aware that the Complainant was dissatisfied with his representation. The Respondent did not submit any documentary evidence in support of his August 16, 2002 answer. By letter dated August 20, 2002, the Statewide Bar Counsel requested that the Respondent submit proof of the deposit to his clients' funds account of the $2,000 non-refundable fee in the form of a copy of the monthly bank statement for the month the deposit was made, a copy of the deposit slip evidencing the $2,000 deposit, and a copy of the Respondent's ledger sheet evidencing the deposit. The Respondent did not provide the subsequent documentary evidence requested by the Statewide Bar Counsel.
At the hearing held on October 10, 2002, the Respondent was ordered by this reviewing committee to submit for review, in addition to the documents requested by the Statewide Bar Counsel, his clients' funds bank statements for the months of March and April 2000 and May of 2002 and all accompanying checks, by October 24, 2002. Notwithstanding that the Respondent agreed to do so, the Respondent did not submit these documents. By letter dated October 29, 2002, the Statewide Bar Counsel again requested that the Respondent submit the requested documents. The Respondent failed to submit the documents to this reviewing committee.
This reviewing committee also considered the following:
The Respondent asserted that the Complainant's Department of Education's loans would not be dischargeable and he, therefore, stopped pursuing the matter. The Respondent conceded that there were substantial delays in the handing of the Complainant's bankruptcy matter. The Respondent apologized to the Complainant for his procrastination and explained that he was suffering from clinical depression that interfered with his daily practice.
This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in ethical misconduct. The Respondent was retained in March of 2000 to file the motion to reopen the bankruptcy and did not do so until October 31, 2000. The Respondent was also retained to pursue the matter beyond merely filing a motion to re-open the bankruptcy. The Respondent's lack of diligence and promptness in his representation of the Complainant resulted in the matter being dismissed and violated Rule 1.3 of the Rules of Professional Conduct. This reviewing committee also finds that the Respondent violated Rule 1.4 of the Rules of Professional Conduct by failing to respond to the Complainant's requests for information and by failing to explain or discuss the viability of the Complaint's adversarial petition so that the Complainant could make an informed decision as to whether to pursue the matter. The Respondent also failed to properly account for his clients' funds in violation of Rule 1.15 of the Rules of Professional Conduct.
This reviewing committee finds that the Respondent's violations of the Rules of Professional Conduct 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. 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 trial de novo proceeding, we order that the presentment complaint include a finding that the Respondent knowingly failed to provide a response to the Statewide Bar Counsel, and this reviewing committee, regarding the use of his clients’ funds to refund a fee in violation of Rule 8.1(2) of the rules of Professional Conduct.
Attorney Vincent DeAngelo
Attorney David Curry
Ms. Johanna Kimball