STATEWIDE GRIEVANCE COMMITTEE
Jamie Frenette, Complainant vs. Thomas J. Egan, Respondent
Grievance Complaint #02-0027
Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 1 Court Street, Middletown, Connecticut on April 10, 2003. The hearing addressed the record of the complaint filed on July 12, 2002, and the probable cause determination filed by the Windham Judicial District Grievance Panel on February 11, 2003, finding that there existed probable cause that the Respondent violated Rules 1.2, 1.3 and 1.4 of the Rules of Professional Conduct.
Notice of the hearing was mailed to the Complainant and to the Respondent on March 3, 2003. At the hearing, both the Complainant and the Respondent appeared and gave testimony. Jaye Egan testified on the Respondent’s behalf.
Reviewing committee member Mary Ellen Smith was not available for the hearing. Since both the Complainant and the Respondent waived Ms. Smith’s participation, this decision was rendered by the undersigned.
This reviewing committee finds the following facts by clear and convincing evidence:
The Complainant retained the Respondent in November of 2000 regarding a visitation matter. The Respondent filed a pendente lite motion for joint custody and visitation, and at a court hearing on January 2, 2001, an agreement was reached that was put on the record. The Respondent told the Complainant that nothing more needed to be done. However, the Respondent never filed a case management agreement and did not appear for a calendar on September 10, 2001 when the case was scheduled for the case management report. Accordingly, the case was dismissed. In May of 2002, the Complainant’s ex-wife took their child out of the state. When the Complainant attempted to file a motion for contempt, he learned that the case had been dismissed and the visitation agreement had expired.
The reviewing committee also considered the following:
The Respondent testified that he was retained to resolve the issue regarding visitation and that this was accomplished by the agreement on January 2, 2001. He stated that nothing in the agreement indicated that it was temporary, or anything other than a final judgment. When the case management date came up, the Respondent did not believe that it was an issue. The Respondent believes that the court system should be more clear regarding case management orders under Practice Book §25-50. The Respondent believed it was not necessary to appear because no issues remained outstanding. The Respondent believed that the scope of the retention was to obtain visitation for the Complainant, and that this was communicated to the Complainant and was accomplished.
This reviewing committee concludes by clear and convincing evidence that the
Respondent violated the Rules of Professional Conduct. The Respondent
was retained to obtain visitation for the Complainant. While this was
initially accomplished, the action filed by the Respondent was subsequently
dismissed, rendering the visitation agreement unenforceable. The fact
that the case was dismissed and never timely reopened constitutes a lack of
diligence by the Respondent in violation of Rule 1.3. The reviewing
committee notes that the Respondent filed a pendente lite motion, which by
nature applies only while a lawsuit is pending. If the Respondent
believed that the court system was unclear as to the need to take further
action in the matter, it was incumbent upon him to clarify this with the
court, rather than assume that the pendente lite visitation agreement
constituted a final judgment. While the reviewing committee is also
critical of the Respondent regarding his communication with the Complainant
as to the scope of the retention, since the objective was achieved, if only
temporarily, it does not find that the Respondent’s conduct rises to the
level of a violation of Rules 1.2 or 1.4 of the Rules of Professional
Conduct. Accordingly, the Respondent is reprimanded for violating Rule 1.3
of the Rules of Professional Conduct.
Attorney Carl Fortuna, Jr.
Attorney Lorraine D. Eckert