Daniel B. Horwitch, Statewide Bar Counsel, Complainant vs. Scott Musselman, Respondent
Grievance Complaint #01-1099
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 November 13, 2002. The hearing addressed the record of the complaint filed on June 17, 2002, and the probable cause determination filed by the Litchfield Judicial District Grievance Panel on September 12, 2002, finding that there existed probable cause that the Respondent violated Rules 1.15(a) and 8.1(2) of the Rules of Professional Conduct and Practice Book §2-27(a) and (c).
Notice of the hearing was mailed to the Respondent on September 25, 2002 and October 7, 2002. The Respondent did not appear at the hearing.
This reviewing committee finds the following facts by clear and convincing evidence:
On May 20, 2002, the Statewide Grievance Committee received written notice from First Union Bank (hereinafter, “First Union”) that the Respondent’s clients’ trust account, number 020-2000010089860 was overdrawn. The overdraft occurred when check number 1131 in the amount of $245 was presented for payment on May 7, 2002. The check was returned due to insufficient funds.
On May 20, 2002 and on May 31, 2002, the Complainant wrote to the Respondent requesting the Respondent’s explanation for the overdraft. The Respondent did not provide an explanation. This grievance complaint followed on June 17, 2002. The complaint was referred to the Litchfield Judicial District Grievance Panel to investigate the complaint to determine whether there was probable cause of misconduct.
The Respondent filed his answer to the grievance complaint with the Litchfield Judicial District Grievance Panel on July 10, 2002. The Respondent stated that the check that caused the overdraft was payable to his child’s daycare provider. The Respondent did not explain why he had not responded to the Complainant’s two letters requesting an explanation for the overdraft. The Respondent attached to his answer a statement from his wife, who assists the Respondent in his law practice. According to Mrs. Musselman’s statement, she wrote check number 1131 in the amount of $245 on April 16, 2002 to her son’s daycare provider, but did not so inform the Respondent.
On July 25, 2002, counsel to the Litchfield Judicial District Grievance Panel wrote to the Respondent and informed him that the Panel was requesting an audit to be performed on the Respondent’s clients’ trust account from January 1, 2000 to the present date. The Respondent did not provide an audit of his account.
This reviewing committee concludes that the Respondent engaged in ethical misconduct with regard to his personal use of his clients’ trust account and his failure to cooperate with the disciplinary process. The use of the Respondent’s clients’ trust account for personal matters clearly violated Rule 1.15(a) of the Rules of Professional Conduct and Practice Book §2-27(a). We conclude that notwithstanding the Respondent’s claim that it was his wife who wrote the check to the daycare provider, it is the Respondent who bears the responsibility to see to it that clients’ funds are not used for personal matters.
We conclude that the Respondent’s failure to provide an explanation of the overdraft to the Complainant and his failure to provide an audit to the Litchfield Panel violated Rule 8.1(2) of the Rules of Professional Conduct. The Respondent was given two opportunities to explain the overdraft to the Complainant but ignored both requests. The Litchfield Panel requested an audit of the Respondent’s clients’ trust account, which was also ignored. The Respondent clearly failed to cooperate with the disciplinary process, in violation of Rule 8.1(2). The Respondent’s failure to provide an audit of his clients’ trust account also violated Practice Book §2-27(c).
In light of the seriousness of the misconduct, it is our decision that the Respondent be presented to the superior court for whatever discipline the court deems appropriate.
Attorney Raymond B. Rubens
Attorney Frederick W. Krug