STATEWIDE GRIEVANCE COMMITTEE
Dolores Madaffari, Complainant vs. Susan Sallard Maignan, Respondent
Grievance Complaint #03-0046
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, 300 Grand Street, Waterbury, Connecticut on December 2, 2003. The hearing addressed the record of the complaint filed on July 14, 2003, and the probable cause determination filed by the Fairfield Judicial District Grievance Panel on September 8, 2003, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.15 and 1.16(d) of the Rules of Professional Conduct and Practice Book §2-26 and §2-32(a)(1). On June 18, 2004, the reviewing committee issued contemplated findings of probable cause. On September 2, 2004, the reviewing committee of Attorney Shari Bornstein, Attorney Geoffrey Naab and Dr. Frank Regan conducted a hearing on the contemplated findings of probable cause. On November 1, 2004, the reviewing committee issued a decision determining that the record did not support a finding of probable cause on the contemplated finding of probable cause.
Notice of the December 2, 2003 hearing was mailed to the Complainant and to the Respondent on October 31, 2003. At the hearing, the Complainant appeared. The Respondent appeared and testified. Attorney Thomas Vetter and Vanessa Madaffari appeared and testified on behalf of the Complainant. Five exhibits were admitted into evidence.
This reviewing committee finds the following facts by clear and convincing evidence:
In or about January of 2003, the Complainant retained the Respondent to represent her in a real estate transaction in which the Complainant was the seller of property located at 57 Stewart Avenue in Norwalk, Connecticut (hereinafter referred to as the "Stuart Avenue property"). The Complainant had also asked the Respondent to represent her in a previously negotiated real estate transaction involving real property located at 10 Coldspring Street in Norwalk, Connecticut (hereinafter referred to as the "Coldspring Street property"). Attorney Erica Quartarone had represented the Complainant for the Coldspring Street property closing that occurred in January of 2003.
In connection with the Coldspring Street property, the Complainant caused an oil tank to be removed from the property. Damage occurred to the property during the removal of the oil tank; oil was spilled, landscaping was damaged, and part of the fencing was broken. As a result, on January 14, 2003 the Complainant entered into a written agreement to make certain repairs. In the agreement, the Complainant committed to escrow $1441 to secure funds to cover the cost of the repairs. Upon the Respondent's commencement of the Complainant's representation, Attorney Quartarone relinquished the $1441 escrow funds and a $41,900 deposit made by the purchaser of the Stuart Avenue property. The Respondent deposited the funds totaling $43,341 into her client's funds account on February 10, 2003. In or around February 2003, the Respondent disbursed $424 to the Complainant’s daughter for reimbursement of a deposit to the fencing contractor, leaving a balance of $1017 of escrowed funds.
The Complainant did not attend the Stuart Avenue property closing held on March 7, 2003. The Respondent escrowed an additional $7,200 to further secure the cost of the repair work to be done to the Coldspring Street property. Thereafter, the Complainant retained Attorney Vetter to assist her in obtaining the closing proceeds. At the time Attorney Vetter was retained, the Respondent had not disbursed the Stuart Avenue property sale proceeds totaling $384,560.73 to the Complainant.
By letter dated March 18, 2003, Attorney Vetter advised the Respondent that the Complainant had retained him. In that letter, Attorney Vetter requested the Respondent return the Complainant's files and the balance of the closing proceeds. By letter dated March 20, 2003, the Complainant also requested the return of her files and any money held by the Respondent to Attorney Vetter. On March 24, 2003, the Respondent forwarded copies of the closing documents for the Coldspring Street property to the Complainant. The Respondent also forwarded the Stuart Avenue property closing documents and a check in the amount of $384,560.73, representing the sale proceeds minus the $7,200 additional escrow.
In correspondence dated March 31 and April 3, 2003 Attorney Vetter demanded an explanation as to why the Respondent had escrowed the additional $7,200 and, by letter dated April 24, 2003, he demanded that the Respondent return the escrowed funds. In a letter dated April 28, 2003 to Attorney Vetter, the Respondent explained that she had retained the additional monies from the sale of the Stuart Avenue property to secure funds for the payment of the repairs on the Coldspring property. The Respondent conditioned the return of the funds on Attorney Vetter's assurance that he would resolve the outstanding issues at the Coldspring Street property and that she would not be held responsible under the Complainant's written agreement to make the needed repairs. The Respondent did not return the escrowed funds until the December 2, 2003 hearing on this grievance complaint.
At the time of the hearing the Respondent had not registered with the Statewide Grievance Committee as required by Practice Book §2-27(d). The Respondent did not answer the grievance complaint. At the hearing held on December 2, 2003, the Respondent submitted a written response to the grievance complaint dated December 2, 2003.
This reviewing committee also considered the following:
The Complainant contended that the Respondent escrowed funds from the sale of the Stuart Avenue property without her permission. The Respondent contended that she had advised the Complainant to escrow funds from the sale of the Stuart Avenue property to cover the cost of the Coldspring Street property repairs. The Respondent defended her failure to release the escrowed funds by asserting that Attorney Veter never responded to her request that he accept responsibility for the Coldspring property repairs.
The Respondent asserted that she wanted to answer the grievance complaint but had been experiencing personal problems that prevented her from doing so.
This reviewing committee concludes by clear and convincing evidence that the Respondent violated the following Rules of the Rules of Professional Conduct and the Practice Book:
The Respondent engaged in unethical conduct in connection with her representation of the Complainant in the real estate matters. The Respondent failed to timely turn over funds which the Complainant was entitled to receive in violation of Rule 1.15(b) of the Rules of Professional Conduct, by failing to deliver the $384,560.73 sale proceeds from the March 7, 2003 Stuart Avenue property closing until March 24, 2003. In March of 2003, the Complainant and Attorney Vetter requested the Respondent to forward her files and to turn over all funds to Attorney Vetter. Notwithstanding, the Respondent did not turn over the escrowed funds until the December 2, 2003 hearing on this matter. Upon the Complainant’s termination of the Respondent in March of 2003, the Respondent was obligated to surrender the escrowed funds to Complainant’s new counsel. The Respondent’s failure to do so until December of 2003 violated Rule 1.16(d) of the Rules of Professional Conduct. The Respondent’s failure to comply with the annual attorney registration requirement violated Practice Book §2-27(d). The Respondent’s failure to file a timely answer to the grievance complaint without demonstrating good cause violated Practice Book 2-32(a)(1). We are not persuaded by the Respondent’s claim that personal problems prevented her from filing a response to the grievance complaint and criticize the Respondent for failing to respond to the grievance complaint. The Respondent’s grievance history reflects that she has not filed an answer to other grievance complaints.
The record does not support a finding of a lack of diligence by the Respondent in connection with her handling of the closing on the Stuart Avenue property and the post-closing on the Coldspring Street property. Notwithstanding, since we conclude that the Respondent violated Rules 1.15(b) and 1.16(d) the Rules of Professional Conduct and Practice Book §§2-27(d) and 2-32(a)(1), we reprimand the Respondent.
DECISION DATE: 12/2/05
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Attorney Katherine Webster-O'Keefe
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Attorney Frederick Krug
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Mr. William Carroll