STATEWIDE GRIEVANCE COMMITTEE
Victor A. Kohutka, Complainant vs. Louis S. Avitabile, Respondent
Grievance Complaint #02-1067A
DECISION
Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 20 Park Street, Rockville, Connecticut on December 4, 2003 and March 4, 2004. The hearings addressed the record of the complaint filed on May 6, 2003, and the probable cause determination filed by the Waterbury Judicial District Grievance Panel on September 24, 2003, finding that there existed probable cause that the Respondent violated Rule 1.15(a) and (c) of the Rules of Professional Conduct. The hearings also addressed the additional findings of probable cause issued by this reviewing committee on November 21, 2003, finding that there existed probable cause that the Respondent violated Rules 3.3(a)(1), 8.1(1) and 8.4(3) and (4) of the Rules of Professional Conduct.
Notice of the December 4, 2003 hearing was mailed to the Complainant and to the Respondent on November 3, 2003. The Complainant did not appear at the hearing. The Respondent appeared at the hearing and gave testimony. Attorney Meryl A. Spat testified pursuant to a subpoena issued on behalf of this reviewing committee. Five exhibits were entered into evidence.
At the outset of the December 4, 2003 hearing, the Respondent was informed that the reviewing committee would not consider the probable cause findings relative to Rule 1.15(a) and (c) of the Rules of Professional Conduct. The factual circumstances giving rise to the alleged violations of the Rule 1.15 were contained in Grievance Complaint #01-0410, Kohutka v. Avitabile, and did not result in probable cause findings. As such, this reviewing committee was precluded from considering those issues.
Notice of the March 4, 2004 hearing was mailed to the Complainant and to the Respondent on January 5, 2004. The Complainant did not appear at the hearing. The Respondent appeared at the hearing and gave testimony. Attorney Spat again testified pursuant to a subpoena issued on behalf of this reviewing committee, as did Attorney John W. Mills. Christi Rene Boulerice testified on behalf of the Respondent. Three exhibits were entered into evidence. Reviewing committee member Dr. Frank G. Regan was unavailable for the hearing. As such, Dr. Regan reviewed the record, including the transcript and exhibits from the March 4, 2004 hearing, prior to participating in the deliberations in this matter.
This reviewing committee finds the following facts by clear and convincing evidence:
The Complainant was initially represented by Attorney Alan I. Saltzman in relation to the alleged lead paint poisoning of his minor daughter, beginning in July of 1993. At that time, Attorney Saltzman was married to Attorney Meryl A. Spat, who was an associate in the Respondent’s law firm. In or about November of 1993, Attorney Saltzman’s former law firm forwarded the Complainant’s file to Attorney Spat at the Respondent’s law office pursuant to instructions from the Complainant.
On or about December 23, 1994, the Respondent filed a lawsuit on behalf of the Complainant, his minor daughter and his wife in the Superior Court in Stamford. The case was entitled Kohutka v. Mazzucco with a docket number of CV95-0142751-S. The court file reflects that all of the pleadings filed on behalf of the Complainant and his family were in the name of the Respondent. Moreover, the pleadings bore either the Respondent’s signature or his authorized signature. The Respondent signed some of the pleadings himself and instructed his secretary and office manager, Danielle Cormier, to sign his name on other pleadings after he reviewed them, which she did. The appearance card issued from the court listed the Complainant’s counsel as “Louis Avitabile.”
On December 13, 1996, Attorney John W. Mills, counsel for the defendants, filed motions for non-suit against the Complainant and his family due to their failure to respond to discovery requests. On June 17, 1997, the Honorable Frank H. D’Andrea, Jr. granted the motions for non-suit as to the Complainant and his family. Notice was issued to the parties on June 25, 1997. The Respondent did not act to rectify the entry of non-suits against the Complainant and his family.
On November 9, 2001, the Complainant filed Grievance Complaint #01-0410, Kohutka v. Avitabile, alleging that the Respondent settled Kohutka v. Mazzucco for $15,000 but did not remit any funds to the Complainant and his family. The Respondent submitted a written response dated December 20, 2001, wherein he explained: “I worked on the case from time to time. I have not had anything to do with that case since before Attorney Spat left my office on April 28, 1997.”
On April 11, 2002, a hearing was conducted in relation to Grievance Complaint #01-0410, Kohutka v. Avitabile, before the reviewing committee of Attorney Carl Fortuna, Jr. and Ms. Mary Ellen Smith. At that hearing, the Respondent testified that he believed a lawsuit was filed on behalf of the Complainant and his family in approximately 1995. He also explained that when Attorney Spat left his office in April of 1997, the file was gone and he assumed that Attorney Spat had taken it given that the Complainant was originally her client. More specifically, the Respondent testified: “I’ve never handled any lead – lead paint cases similar to Mr. Kohutka’s and it was, basically, Attorney Spat’s case. She was handling it out of my office at that time because she was there, using my letterhead at that time, as I imagine. . . . That’s all I know about it.” Thereafter, the following exchange took place between the Respondent and reviewing committee member Attorney Fortuna:
ATTORNEY FORTUNA: So you’ve – it’s your statement on the record that you’ve never handled any civil personal injury matters for the Complainant?
ATTORNEY AVITABILE: I’ve never personally handled them. They were handled out of my office. Whether my name appears on some of the stationery, that may be true, but I never really handled the matter and I – after April 28th of ’97, I don’t know what happened to the file.
On November 22, 2002, the reviewing committee dismissed Grievance Complaint #01-0410, Kohutka v. Avitabile, finding that the record lacked clear and convincing evidence that the Respondent represented the Complainant. In so concluding, the reviewing committee noted: “The Respondent testified that he believes Attorney Spat may have been the attorney of record and that she may have taken the file with her when she left his firm. The Respondent does, however, concede that he helped out on the Complainant’s file on occasion, but that he did not have anything to do with the Complainant’s file after Attorney Spat left.”
This reviewing committee also considered the following:
In this grievance complaint, the Complainant alleged that the Respondent lied at the April 11, 2002 reviewing committee hearing in relation to Grievance Complaint #01-0410, Kohutka v. Avitabile, when he testified that he did not take the Complainant’s case.
Christi Rene Boulerice, the Respondent’s employee, testified that she remembered Attorney Spat leaving the office the last week of April in 1997. She further testified that the locks to the Respondent’s law office were changed on April 28, 1997. Finally, she testified that after Attorney Spat removed files from the office, a handful of personal injury files were missing, including the Complainant’s file.
At the December 4, 2003 hearing, Attorney Spat testified that she could not remember whether she drafted any of the pleadings in the Complainant’s case and indicated that if the Respondent asked her to work on the Complainant’s file, then she would have done as he requested. She recalled that the Complainant’s file came to the Respondent’s office through some connection with her former husband; however, she could not remember the details of how this occurred. Attorney Spat further testified that at the time, she had only been in practice for approximately one year and that she worked as the Respondent’s associate for the first two years that they worked together. She did not recall the details of the Complainant’s file or drafting any of the pleadings. She testified that she did not have control over the mail while she worked with the Respondent. Attorney Spat’s testimony was confusing as to whether Ms. Cormier would present documents for Attorney Spat’s signature or instead would have the Respondent sign all documents that she prepared. Eventually, Attorney Spat maintained that Ms. Cormier did give her documents to sign. She further testified that she left the Respondent’s office around April 10, 1997, which was her birthday, because the Respondent changed the locks. When specifically asked whether she removed any files from the office, Attorney Spat testified that she had not removed any files. When asked whether she ever spoke with counsel for the defendants in this case, Attorney Spat indicated that she might have, but that she was not sure because her memory was not that good.
At the March 4, 2004 hearing, Attorney Spat testified that she did not recall her previous testimony that she did not take any files with her after she left the Respondent’s office. Rather, she testified that the Respondent’s assistant, Charles Gray, assisted her in carrying social security files out of the office. She denied taking the Complainant’s file from the Respondent’s office or any other personal injury file.
Attorney Mills testified that his recollection was that he dealt with the Respondent as opposing counsel in Kohutka v. Mazzucco. He explained that he did not recollect dealing with any other attorney in the case. Attorney Mills explained that he did not receive any letters from the Respondent and that he had no memory of any telephone communications with him. The only contact was by pleadings, which were all filed in the Respondent’s name and which bore the apparent signature of the Respondent. Pursuant to subpoena, Attorney Mills presented this reviewing committee with a copy of his file, except for privileged communications and documents evidencing his work product. His file reflects that the Respondent was counsel of record for the Complainant and that all of the pleadings were filed in the Respondent’s name.
In his written response to this grievance complaint, the Respondent maintained that he testified at the April 11, 2002 reviewing committee hearing that the writ, summons and complaint were prepared by Attorney Spat and were typed by Ms. Cormier. The Respondent claimed that it was Attorney Spat’s case and that he knew nothing about what happened after Attorney Spat left his office in April of 1997.
The Respondent testified before this reviewing committee that he never received any pleadings or correspondence relative to the Complainant’s file after Attorney Spat removed it from his office in late April of 1997. He admitted that he neither moved to withdraw from the case nor informed the Complainant that Attorney Spat had his file and would be representing him. The Respondent also testified to a vague recollection of speaking with Attorney Mills, but did not dispute that they never spoke regarding the case. The Respondent further testified that Attorney Spat drafted most, if not all, of the pleadings for the Complainant’s case. He explained that he signed the pleadings, or had Ms. Cormier sign on his behalf, because Ms. Cormier would not work with Attorney Spat. The Respondent further testified as follows:
Well, I had indicated in an earlier answer that – if I may refer to that – when I made that statement, it was specifically to the question, and I thought I was answering the question correctly in that I never personally handled that particular file. I mean, the file – the pleadings were generated through my office and because I would have to sign the pleadings because my office manager wanted me to sign the pleadings because she wouldn’t do any work for Attorney Spat – but the work was generated by Attorney Spat.
If that wasn’t made clear in my testimony, then it wasn’t made clear, but obviously, I think I indicated somewhere in the transcript, in reading it briefly out there – the first time I’ve seen it is today. But I believe somewhere in the transcript I do indicate that obviously I had – I knew something about the file. I had done work on the file. As a matter of fact, in my letter of December 20th of 2001, I indicated that during that period of time from June 30, 92 to April 28th of ’97, I worked on the case from time to time.
I have not had anything to do with that case since before Attorney Spat left my office on April 28th in ’97. The last thing that I had to do with the case, as seen by the file from Stamford, is that I did file a motion to set aside default. It was done out of my office, and that was on April 22nd of ’97; and that would be the last thing.
I never received any notice after that. As I testified previously, I assumed that Attorney Spat had taken the file because the file was no longer there. And basically, that’s what I know about it.
The Respondent submitted documents that he located on an office computer as a bulk exhibit. This exhibit contained a handful of letters purportedly from Attorney Spat to various entities and individuals indicating that she represented the Complainant. In addition, the Respondent submitted documents that he insisted he uncovered during a search of his office for the Complainant’s file in some boxes that were left behind by Attorney Spat. These documents involved Attorney Saltzman’s representation of the Complainant and the transfer of the Complainant’s file to Attorney Spat at the Respondent’s law office.
This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:
The Respondent violated Rules 3.3(a)(1) and 8.1(1) of the Rules of Professional Conduct by knowingly making a false statement of material fact to a reviewing committee of the Statewide Grievance Committee at the April 11, 2002 hearing in relation to Grievance Complaint #01-0410, Kohutka v. Avitabile, regarding his involvement with the Complainant’s case. This reviewing committee finds the testimony of Attorney Mills credible that he only dealt with the Respondent as counsel for the Complainant in Kohutka v. Mazzucco. This is consistent with the court file as every pleading filed on behalf of the Complainant was in the Respondent’s name. Moreover, the appearance card issued by the court reflected that the Respondent was counsel of record for the Complainant. Attorney Spat’s testimony before this reviewing committee was confusing and contradictory. She had difficulty remembering the simplest facts and contradicted her own testimony from hearing to hearing, as well as from sentence to sentence within a response. We were frustrated in our attempts to sort through Attorney Spat’s testimony and, as such, we disregard her testimony in its entirety.
Despite this, we find that the record contains clear and convincing evidence that the Respondent made a false statement of material fact to the reviewing committee at the April 11, 2002 hearing in connection with Grievance Complaint #01-0410, Kohutka v. Avitabile. Although the evidence before us was conflicting as to whether the Respondent actively represented the Complainant, it is undisputed that the Respondent was the attorney of record for the Complainant during the entire pendency of Kohutka v. Mazzucco. In addition, the Respondent’s testimony lacked credibility given his failure to acknowledge the true extent of his involvement with the Complainant’s case in the face of overwhelming evidence from the court file and Attorney Mills’ file. Even if we credited the Respondent’s testimony regarding his involvement with the Complainant’s case, we would still reach the same conclusion. Although Attorney Spat may have drafted some of the pleadings, this does not excuse the Respondent from his responsibilities as the only counsel of record for the Complainant. Furthermore, it strains credulity that the Respondent did not receive any pleadings or correspondence in relation to Kohutka v. Mazzucco after Attorney Spat left his office in April of 1997.
The reviewing committee presiding over the April 11, 2002 hearing for Grievance Complaint #01-0410, Kohutka v. Avitabile, relied on the Respondent’s misrepresentation as it was unable to determine whether the Respondent represented the Complainant. The reviewing committee noted the Respondent’s testimony that although he worked on the Complainant’s file from time to time, it was Attorney Spat’s case – not his. We find such to be a knowingly false statement by the Respondent as to his involvement in the representation of the Complainant in Kohutka v. Mazzucco. The Respondent’s misconduct strikes at the heart of the grievance process: a reviewing committee must be able to trust that an attorney presenting sworn testimony before it will tell the truth, the whole truth and nothing but the truth. An attorney, more than a layperson, should appreciate the magnitude and importance of taking an oath. The Respondent disregarded his oath at the April 11, 2002 reviewing committee hearing. Such misconduct undercuts the integrity of the grievance process. We are shocked by the Respondent’s lack of respect for the Statewide Grievance Committee, which sits as an arm of the court, and we find such conduct to be unbecoming of an officer of the court.
We also find that the Respondent’s conduct, as detailed above, involved dishonesty, deceit and misrepresentation, in violation of Rule 8.4(3) of the Rules of Professional Conduct, and constituted conduct prejudicial to the administration of justice, in violation of Rule 8.4(4) of the Rules of Professional Conduct.
We view the Respondent’s conduct in this matter as a very serious breach of the Rules of Professional Conduct. As such, we order that the Respondent be presented to the Superior Court for the imposition of whatever discipline the Court may deem appropriate.
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Attorney Kathleen D. Stingle
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Attorney John C. Matulis, Jr.
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Dr. Frank G. Regan