Belinda C. Billue vs. Scott M. Schwartz

STATEWIDE GRIEVANCE COMMITTEE

Belinda C. Billue, Complainant vs. Scott M. Schwartz, Respondent

Grievance Complaint #01-0883

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, 235 Church Street, New Haven, Connecticut on October 2, 2002. The hearing addressed the record of the complaint filed on April 10, 2002, and the probable cause determination filed by the New Britain Judicial District and the Judicial District of Hartford for Geographical Area 12 and the Towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel on July 3, 2002, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4 and 1.5 of the Rules of Professional Conduct, as well as Practice Book §2-32(a)(1).

Notice of the hearing was mailed to the Complainant and to the Respondent on August 22, 2002. The Complainant appeared at the hearing and gave testimony. The Respondent did not appear at the hearing.

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

On November 4, 1999, the Complainant engaged the Respondent to defend her in two foreclosure matters and one civil matter, and thereafter paid him two retainers totaling $4287. The Respondent did not provide the Complainant with a written fee agreement in relation to any of the matters for which he was retained.

The Complainant met with the Respondent to discuss her cases on May 9, 2000 and June 28, 2000. In the interim, the Complainant sent the Respondent a letter dated May 10, 2000 and a fax on May 24, 2000, and left voicemail messages for him on June 10, 2000 and several times the following week requesting the status of her cases. The Respondent failed to respond until they met on June 28^th.

On July 21, 2000, the Complainant spoke briefly with the Respondent when he indicated that he would immediately return her call. He failed to do so. On July 27, 2000, the Complainant left the Respondent urgent messages on his voicemail and cell phone requesting a status update, but she received no response. She also sent the Respondent a letter dated July 29, 2000 and a fax on August 24, 2000 requesting an update, but again the Respondent did not contact her.

The Complainant left the Respondent another voicemail message on October 23, 2000, and was successful in speaking with the Respondent on October 24, 2000. On November 13, 2000, the Complainant spoke briefly to the Respondent, who indicated that he would call her back; however, he failed to do so. The Complainant thereafter left the Respondent a voicemail message on November 29, 2000 and sent him a fax on December 20, 2000 requesting a status update, but the Respondent did not respond to either communication.

The Respondent sent the Complainant a letter in May of 2001 and left her a message in August of 2001. However, the Respondent failed to return the Complainant’s follow-up letters dated October 10, 2001, November 27, 2001 and January 17, 2002, as well as her voicemail messages left in August of 2001 and on November 23, 2001, requesting a bill and a refund of the unused retainer.

At their initial meeting, it was agreed that the Respondent would stop the foreclosure action against the Complainant as to one of her properties if possible. The Complainant provided the Respondent with letters from a company that was willing to buy out the two mortgages on the property and prevent the foreclosure. The Respondent filed an appearance and one motion in this foreclosure action. However, the Respondent failed to respond to the company in a timely manner, and the property eventually was foreclosed.

As to the second property, the Complainant and her ex-husband were ordered by the court to sell that property in their divorce decree. The Complainant located a buyer who made a deposit to purchase the property, but her ex-husband was not cooperating with the sale. The Complainant requested that the Respondent file a motion for contempt to get her ex-husband to comply with the court’s order, but the Respondent failed to do so. The property went into foreclosure, and the buyer that the Complainant had originally found purchased the property at the foreclosure. The Respondent appeared at the foreclosure and told the Complainant that “he wanted to see how things were going.” Thereafter, the prospective buyer successfully sued the Complainant for a return of his deposit. The Complainant requested that the Respondent respond to this lawsuit on her behalf, but he failed to do so.

The Complainant had also requested that the Respondent return a security deposit to a tenant from escrowed funds, and pay the bill of a worker who did work to one of the properties. The Respondent never paid the tenant or the worker, and the Complainant’s failure to pay one or both of these debts was reported on her credit record.

The Complainant filed a small claims action against the Respondent, who failed to show up for the hearing. As a result, the Complainant was awarded a default judgment in the amount of $3488 on or about July 25, 2002. The Respondent was ordered to pay the judgment at a rate of $35 per week beginning August 16, 2002. As of the date of the hearing before this reviewing committee, the Respondent had not complied with the payment order.

Finally, the Respondent failed to respond to the complaint.

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

The Respondent violated Rule 1.3 of the Rules of Professional Conduct by failing to act with reasonable diligence and promptness in representing the Complainant. The Complainant hired the Respondent primarily to prevent the foreclosure of certain properties. In relation to one property, the Complainant provided the Respondent with information regarding a company that was willing to purchase the existing mortgages and prevent the foreclosure. However, the Respondent failed to respond to the company in a timely manner. Moreover, the Respondent merely filed an appearance and one motion in that case, and the property was eventually foreclosed. In relation to the other property, the Respondent failed to file a motion for contempt directed to the Complainant’s ex-husband to force him to cooperate with the sale of that property as directed by the divorce decree. The prospective buyer that the Complainant had located successfully sued her for the return of his deposit, and the Respondent failed to respond to the filing of that complaint despite the Complainant’s request that he do so. Finally, in addition to the foreclosure matters, the Complainant also requested that the Respondent pay two debts that she owed from her escrowed funds. However, the Respondent failed to do so.

By failing to keep the Complainant reasonably informed about the status of the matter and to promptly comply with her reasonable requests for information, the Respondent violated Rule 1.4(a) of the Rules of Professional Conduct. During the course of his representation of the Complainant, the Respondent consistently failed to respond to the Complainant’s repeated requests by telephone, fax and letter for updates on her cases, a bill and a refund of the unused retainer. Moreover, the Respondent assured the Complainant that he would return her call on two occasions, but failed to do so. Additionally, we find the Complainant’s constant requests for updates on her cases to be indicative of the Respondent’s failure to keep her reasonably informed as to the status of her cases.

By failing to have a written fee agreement with the Complainant, the Respondent violated Rule 1.5(b) of the Rules of Professional Conduct. Additionally, 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 1.3, 1.4(a) and 1.5(b) 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.

Finally, since the presentment will be a trial de novo, this reviewing committee orders that the presentment complaint contain a charge that the Respondent violated Rule 8.4(4) of the Rules of Professional Conduct by engaging in conduct prejudicial to the administration of justice as evidenced by his failure to make payments to the Complainant in accordance with the small claims judgment.

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Attorney Carl Fortuna, Jr.

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Attorney Noble F. Allen

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Professor Paul Hawkshaw