STATEWIDE
GRIEVANCE COMMITTEE
Garnik Baghumyan, Complainant vs. Walter Burrier, Respondent
Grievance Complaint #02-0116
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, 1
Court Street, Middletown, Connecticut on February 13, 2003. The hearing addressed the record of the
complaint filed on August 2, 2002, and the probable cause determination
filed by the Tolland Judicial District Grievance Panel on October
25, 2002,
finding that there existed probable cause that the Respondent violated Rules
1.1, 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 December
30, 2002. In a letter dated January 8, 2003, the Respondent requested a continuance
of the hearing. By letter dated January
14, 2003, we
denied the Respondent’s request. The
Complainant did not appear at the hearing. The Respondent, represented by
Attorney Alice K. Berke, appeared at the hearing and
gave testimony.
This
reviewing committee finds the following facts by clear and convincing evidence:
On
or about September 17, 2001, the Respondent agreed to represent the
Complainant and his wife, Araks Baghumyan,
pro bono in deportation proceedings
instituted by the Immigration and Naturalization Service.
The Respondent appeared in court for the Complainant and his wife that
same day. A second hearing was scheduled
for October 18, 2001.
The
Respondent did not appear at the October 18, 2001 hearing.
The Complainant and his wife appeared at the hearing and the matter was
continued to November 28, 2001.
The Complainant and his wife retained Attorney Robert J. Harker for representation at the November
28, 2001
hearing. At that hearing, the
Complainant and his wife were personally served with notice of their merits
hearing, scheduled for March 13, 2002 at 8:30 a.m. before the Honorable Robert O. Vicars,
Jr., Immigration Judge. Attorney Harker gave the Complainant and his wife the original
Notice to Appear and informed them that he could no longer represent them
unless they signed an agreement and paid a retainer, which they did not do.
On
or about February 26, 2002, the Complainant signed a retainer
agreement with the Respondent for representation of himself and his wife. On or about March 1, 2002, the Complainant made a partial payment
of $500 to the Respondent toward the $2000 retainer, leaving a balance of
$1500. On or about March
6, 2002, the
Respondent filed a Motion to Continue the merits hearing that was scheduled for
March
13, 2002. The basis of the motion was that the
Respondent was the new attorney for the Complainant and his wife, and that he
needed additional time to prepare his clients and provide the court with
additional documentation. The motion
also requested that the Complainant’s daughter, Stella Baghumyan,
be included in the proceedings. The Respondent’s motion was not acted on before
the merits hearing.
The
Complainant and his family telephoned the Respondent on several occasions
before the March 13, 2002 hearing to discuss their case or to
schedule an appointment. However, the
Respondent never returned their telephone calls. Instead, the Complainant and his family spoke
with the Respondent’s staff. When the
Complainant and his family requested to speak with the Respondent through the
Respondent’s staff, they were informed that the Respondent was extremely busy
and could not speak with them.
On
March
12, 2002, the
Respondent’s paralegal, Ron Martinez, telephoned the Complainant and his family
and instructed them to appear in court at 1 p.m. the following day. The Complainant and
his family did as instructed and appeared in court on March
13, 2002 at 1 p.m.
At that time, they discovered that Judge Vicars had ordered them removed
in absentia given their failure to
appear at 8:30
a.m. as ordered
in the Notice to Appear. The Respondent
apologized to the Complainant and his family and promised to file a motion to
reopen at no charge and to refund the retainer if the motion was denied. On or about March 15, 2002, the Respondent filed a Motion to Reopen
on behalf of the Complainant and his wife.
In his motion, the Respondent admitted to instructing the Complainant
and his wife to appear at 1 p.m. instead of 8:30 a.m.
However, the Respondent asserted in his motion that he “had no way of
knowing that the [March 13, 2002] hearing was scheduled for the morning not the
afternoon.”
On
March
29, 2002, Judge
Vicars denied the Respondent’s Motion to Reopen as he found that the
Complainant and his wife had not demonstrated exceptional circumstances for
their failure to appear at the March 13, 2002 hearing.
In his decision, Judge Vicars noted that the Respondent was the original
attorney of record on September 17, 2001, that the Respondent failed to appear
for the October 18, 2001 hearing, that Attorney Harker made a single appearance on November
28, 2001, and
that the Respondent failed to appear at the March 13, 2002 hearing.
Judge Vicars further noted that “[o]n these facts, Attorney Burrier’s argument that he was new to the case and therefor [sic] ‘had no way of knowing’ the time of the
hearing is disingenuous, at best.”
By
letter dated April 22, 2002, the Respondent refunded $500 to the
Complainant as this was the only portion of the $2000 retainer paid by the
Complainant and his family. The
Respondent also offered to file an appeal on behalf of the Complainant and his
family at no charge.
This
reviewing committee also considered the following:
The
Complainant maintained that, because of the Respondent’s misconduct, he and his
family might be deported to Armenia, where they face persecution, torture
and possibly death.
In
his written response to the complaint, the Respondent maintained that he did
appear in court on October 18, 2001 to represent the Complainant and his
wife, but that they did not appear on time.
The Respondent insisted that he explained to them that he could only
represent them at that hearing if they were there early or exactly on time
because he had a hearing before another judge scheduled for the same time. He stated that he waited for them, but that
the Complainant and his wife were very late and he had to represent other
clients. When the Respondent returned to
the courtroom, the clerk informed him that the Complainant and his wife’s case
was continued to November 28, 2001.
Additionally, the Respondent denied that he never returned the
Complainant’s telephone calls and explained that Mr. Martinez was in “constant
communication” with the Complainant’s daughter as she was the only member of
the family that spoke English. Finally, the Respondent acknowledged that Mr.
Martinez mistakenly instructed the Complainant and his family to appear at the March
13, 2002 hearing
at 1
p.m. instead of 8:30 a.m.
The
Respondent testified that he had other hearings scheduled for the morning of March
13, 2002 and
that was why he filed the motion to continue.
As such, he maintained that he did not fail to show up for the March
13, 2002
hearing; rather, he was unable to appear.
The Respondent testified that he reviewed the motion to reopen that Mr.
Martinez drafted and that he was “uncomfortable” with the language that he “had
no way of knowing” what time the hearing was.
Finally, the Respondent testified that at the October
18, 2001
hearing, which was to commence at 8:30 a.m., he waited until 8:35 a.m. for the Complainant and his wife to
appear before he left to represent other clients.
The
Respondent submitted a “declaration” by Mr. Martinez wherein Mr. Martinez swore
to the truthfulness of the statement, but his signature and swearing were not
witnessed by a third party. Mr.
Martinez’ statement explained that he mistakenly told the Complainant’s
daughter that the family must appear at the March 13, 2002 hearing at 1 p.m. because he was focused on resolving the
pending motion to continue, which he believed would be heard at Judge Vicars
master calendar hearing held at 1 p.m.
Mr. Martinez also explained that he drafted the motion to reopen that
the Respondent signed and filed in court.
Mr. Martinez stated that he was not aware at that time that the
Respondent had previously represented the Complainant and his wife on a pro bono basis. As such, he did not know that he was
incorrect when he wrote in the motion to reopen that the Respondent “had no way
of knowing” what time the hearing was scheduled for.
This
reviewing committee finds the following violations of the Rules of Professional
Conduct 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
and his wife in their immigration case.
The Respondent first represented the Complainant and his wife at the September
17, 2001
hearing. Thereafter, the Respondent was
to represent the Complainant and his wife at another hearing on October
18, 2001. However, when the Complainant and his wife
were late arriving, the Respondent left the courtroom to represent other
clients. While the Respondent may
believe that his commitment to other clients excused his conduct in this
regard, we disagree. The Respondent knew
of his other client commitments when he agreed to represent the Complainant and
his wife at the October 18, 2001 hearing.
Even if the Respondent instructed them that he could only represent them
if they were on time, this still does not excuse his conduct. The Respondent
should never have agreed to represent the Complainant and his wife at the October
18, 2001 hearing
if he was already committed to represent other clients at the same time.
According to the Respondent’s own testimony, he could not spare more than five
minutes for the Complainant and his wife’s case. Additionally, the Respondent testified that
he filed the Motion to Continue on March 6, 2002 because he had other hearings
scheduled for March 13, 2002 at 8:30 a.m. and, therefore, he knew that he could
not appear for the Complainant and his wife’s merits hearing. The Respondent’s motion was not acted upon
prior to the hearing date; as such, the merits hearing was still scheduled for
March 13, 2002 at 8:30 a.m. The Respondent knew this fact. However, he did not appear at the merits
hearing as scheduled; rather, he showed up at 1 p.m.
This reviewing committee does not understand why the Respondent did not
appear at the proper time: he knew the
correct date and time of the merits hearing, and Mr. Martinez did not instruct
the Respondent to appear at the wrong time – only the Complainant and his
family. If there truly was a mix-up, then the Respondent would have appeared at
the merits hearing at 8:30 a.m. as previously scheduled. However, as he testified, it was not that he
failed to appear, but rather that he had other court appearances to make on
behalf of other clients.
By
failing to keep the Complainant and his wife reasonably informed about the
status of their immigration case and by failing to promptly comply with their
reasonable requests for information regarding their case, the Respondent
violated Rule 1.4(a) of the Rules of Professional Conduct. We find that the Complainant and his family
tried unsuccessfully to contact the Respondent prior to the March
13, 2002
hearing, and that the Respondent never returned their telephone calls. Although it was proper for the Complainant
and his family to speak with Mr. Martinez regarding their case when the
Respondent was unavailable, this became insufficient in light of their specific
and repeated requests to speak with the Respondent. They were routinely told that the Respondent
was too busy to speak with them. It is
unacceptable for an attorney to never speak with a client and instead insist that
a client only speak with the attorney’s staff, even when the client specifically
requests an opportunity to speak directly with the attorney. We also find that the Respondent failed to
keep the Complainant and his family accurately updated as to the status of
their case. The Complainant and his
family were incorrectly told to appear in court on March 13, 2002 at 1 p.m. instead of 8:30 a.m.
This instruction proved costly to the Complainant and his family because
their hearing went forward at 8:30 a.m. as scheduled and they were ordered
deported in absentia.
Based
on the record before us, however, we can not find that the Respondent violated
Rule 1.1 of the Rules of Professional Conduct.
There is no evidence that the Respondent’s representation of the
Complainant and his wife was incompetent.
We
are sharply critical of the Respondent’s conduct in this case, and we are
troubled by the Respondent’s failure to acknowledge the seriousness of his
misconduct, especially in light of the fact that the Respondent’s professional
disciplinary history contains three reprimands. Although the Respondent
acknowledged the error by Mr. Martinez, his paralegal, he was less than
forthright regarding his own conduct.
Since
we find that the Respondent violated Rules 1.3 and 1.4(a) of the Rules of
Professional Conduct, and given the Respondent’s prior professional
disciplinary history and the seriousness of the misconduct involved in this
case, we order that the Respondent be presented to the Superior Court for the
imposition of whatever discipline the Court may deem appropriate.
___________________________________
Attorney
Carl Fortuna, Jr.
____________________________________
Attorney
Lorraine D. Eckert
____________________________________
Ms.
Mary Ellen Smith