Scott Winer, Complainant vs. John R. Williams, Respondent
Grievance Complaint #03-0076A
DECISION
PART I
Pursuant to Practice Book §2-35(c), the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 80 Washington Street, Hartford, Connecticut on December 9, 2004. The hearing addressed the record of the complaint filed on July 22, 2003, and the probable cause determination filed by the New Haven Judicial District Grievance Panel for the towns of Bethany, New Haven and Woodbridge on December 30, 2003, finding that there existed probable cause that the Respondent violated Rules 1.3 and 8.4(4) of the Rules of Professional Conduct.[1]
Notice of the hearing held on December 9, 2004 was mailed to the Respondent and to the Complainant on November 11, 2004. The Respondent and the Complainant appeared and testified at the hearing. Attorney Kathleen Stingle was unavailable for the hearing. The Respondent and the Complainant waived the participation of Attorney Stingle and, accordingly, this portion of the decision was rendered by the undersigned.
This reviewing committee finds the following facts by clear and convincing evidence:
In or around November 8, 1996, the Complainant contacted the Respondent’s firm and made an appointment to discuss a potential civil rights claim. The Complainant was facing criminal charges in Southington, Connecticut and wanted to bring a civil lawsuit against the Southington police department. On November 15, 1996, the Complainant went to the Respondent’s office to meet with him and sign a retainer agreement. Instead of meeting with the Respondent, however, the Complainant met with the Respondent’s associate, Attorney William Palmieri. Attorney Palmieri had been practicing law approximately two and one half years at the time he met with the Complainant. Attorney Palmieri informed the Complainant that the Respondent was unavailable to meet with the Complainant. Mr. Palmieri took notes during the meeting. The Complainant advised Attorney Palmieri that he was facing criminal charges.
At the conclusion of the meeting with Attorney Palmieri, the Complainant signed a retainer agreement and provided Attorney Palmieri with a $5000 check payable to the Respondent’s firm. Among other things, the retainer agreement indicated that the Respondent’s firm would represent the Complainant in a “claim against the Southington Police Department, and any other parties as the Law Offices of John R. Williams sees fit, arising from the pattern of arrests and harassment directed at[the Complainant].” The retainer also stated that “[t]he amount of $5000, payable as specified herein, is an initial retainer in this case” and “[t]his retainer is in addition to the fees described herein for work performed”. In addition to the $5000 retainer, the fee agreement also provided that the Respondent’s firm would receive a contingency fee of any settlement or judgment in favor of the Complainant. The Complainant and Attorney Palmieri agreed to withhold active pursuit of the civil action until the criminal matters were resolved. Following his meeting with the Complainant, Attorney Palmieri saw to it that the Complainant’s retainer check was deposited into the Respondent’s law firm account. Attorney Palmieri also contacted the Complainant’s criminal lawyer to discuss the substance of the charges against the Complainant. Thereafter, no claim was brought on behalf of the Complainant by the Respondent or by Attorney Palmieri and no additional legal services were provided to the Complainant.
On May 28, 1997, the Complainant wrote to Attorney Palmieri and advised that he no longer wanted to pursue the civil lawsuit. The Complainant also asked the Respondent to return the $5000 retainer. On May 28, 1997, Attorney Palmieri wrote to the Complainant and advised him that he had conferred with the Respondent and would not refund any of the money paid. Attorney Palmieri asserted that the $5000 was only for the purpose of “retaining the firm’s services”. The Complainant met with Attorney Palmieri twice again, in 1997 and 1998, to demand the return of his retainer. Thereafter, Attorney Palmieri and the Respondent had no other contact with the Complainant or his file.
In or around March of 2003, the Complainant, who was by then incarcerated, commenced a civil lawsuit against the Respondent, the Respondent’s law firm and Attorney Palmieri for the return of his retainer. Assuming that the Complainant’s civil complaint “was just another prisoner lawsuit,” the Respondent performed a cursory file check but did not find the Complainant’s file. The Respondent filed an answer to the civil complaint on behalf of himself and his law firm alleging “defendants never have provided legal services to the plaintiff and in fact never had a legal relationship with the plaintiff.”
At the hearing held on May 12, 2004 on the grievance complaint, the Respondent asserted that he did not represent the Complainant and that he could not locate a file bearing the Complainant’s name. After the Respondent received an unfavorable decision in the instant matter, he was able to locate the Complainant’s file. Thereafter, the Respondent submitted copies of the Complainant’s file, along with a request for review, to the Statewide Grievance Committee. The only documents in the file that were created by the Respondent’s law firm consisted of three pages of notes handwritten by Attorney Palmieri dated November 15, 1996 and the retainer agreement. There were also a large number of documents in the Complainant’s file that were not generated by the Respondent or his firm but were created in the context of the Complainant’s criminal matter, for which he was represented by Attorney Peter Soulsby.
This reviewing committee concludes that the Complainant retained the Respondent’s law firm in November of 1996 to represent him in a discrimination lawsuit and that in May of 1997 he advised the Respondent’s law firm that he no longer wished to pursue the matter. The record indicates that the Complainant agreed to withhold active pursuit of the civil claim until his criminal matter was resolved. At the time the Complainant discharged the Respondent’s law firm, the criminal charges were still pending. Therefore, the Respondent’s law firm’s failure to pursue the civil matter between November of 1996 and May of 1997 did not amount to a lack of diligence and, therefore, the Respondent was not in violation of Rule 1.3 of the Rules of Professional Conduct.
We are critical, however, of the Respondent’s responses to both the civil lawsuit and grievance complaint. The answers to both the lawsuit and grievance complaint evidence a casual attitude towards serious claims and indicate that the Respondent initially exercised little, if any, effort to ascertain the situation and respond to the complaints until after he was disciplined. It was only after receiving an unfavorable decision that the Respondent made the effort needed to locate the file. However, we do not find that this conduct rose to the level of an ethical violation and do not find a violation of Rule 8.4(4) of the Rules of Professional Conduct by clear and convincing evidence. Accordingly, this complaint is dismissed as to Rules 1.3 and 8.4(4) of the Rules of Professional Conduct.
Notwithstanding this reviewing committee’s findings regarding Rules 1.3 and 8.4(4) of the Rules of Professional Conduct, we are troubled by the Respondent’s refusal to refund any portion of the retainer fee paid to the Complainant. The record shows that the Respondent did not perform any legal services on behalf of the Complainant and that Attorney Palmieri, a relatively inexperienced attorney at the time, merely took initial intake notes and possibly organized the Complainant’s file. As a result, after the hearing held on December 9, 2004, this reviewing committee notified the Respondent and the Complainant on April 22, 2005 that it found that there existed probable cause, that the Respondent violated Rule 1.5(a) of the Rules of Professional Conduct by refusing to refund any portion of the $5000 retainer when a limited amount of legal services were provided. Therefore, this matter was referred to another reviewing committee to consider whether the Respondent violated Rule 1.5(a) of the Rules of Professional Conduct. (See Part II)
DECISION DATE: ___3/24/06_______________
Attorney John C. Matulis
Ms. Johanna Kimball
PART II
Pursuant to Practice Book §2-35(c), the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 300 Grand Street, Waterbury, Connecticut on July 5, and October 4, 2005. The hearings addressed the record of the complaint filed on July 22, 2003, and the probable cause determination filed by a reviewing committee of Attorney John C. Matulis and Ms. Johanna Kimball on April 22, 2005, finding that there existed probable cause that the Respondent violated Rule 1.5(a) of the Rules of Professional Conduct.
Notice of the hearing held on July 5, 2005 was mailed to the Respondent and to the Complainant on June 2, 2005. The hearing did not go forward due to the absence of the Complainant. Thereafter, the matter was rescheduled for a hearing on October 4, 2005. Notice of the hearing held on October 4, 2005 was mailed to the Complainant and to the Respondent on September 1, 2005. The Complainant and the Respondent appeared at the hearing and testified. Four exhibits were admitted into evidence.
This reviewing committee finds the following facts by clear and convincing evidence:
The undersigned reviewing committee of the Statewide Grievance Committee adopts the facts found in Part I of this decision and hereby incorporates those facts into Part II of this decision.
This reviewing committee also considered the following:
The Respondent argued that his representation of the Complainant in his lawsuit against the Southington police department precluded the Respondent’s firm from representing the Southington police department in the same or similar matters. The Respondent further asserted that the preclusion represented a value to the Complainant and also cost the Respondent legal work. Based on the foregoing, the Respondent asserted that the $5000 fee was earned.
This reviewing committee concludes by clear and convincing evidence that the $5000 non-refundable fee charged by the Respondent was unreasonable in light of the entire record before it. Accordingly, we find that the Respondent violated Rule 1.5(a) of the Rules of Professional Conduct. Rule 1.5(a) lists the factors to consider when determining whether a fee is reasonable. The relevant factors include the time and labor involved, the skill required, whether the representation will preclude other employment, the amount of money involved and the results obtained, and the experience and reputation of the lawyer.
The Respondent’s retainer agreement required that the Complainant pay a $5000 fee at the outset of the representation. The retainer agreement also provided for a contingency fee in the event the Respondent’s law firm was successful in the Complainant’s civil claim. In this instance the Respondent himself provided no work on the behalf of the Complainant and the Respondent’s associate provided a minimum amount of legal work to the Complainant. Clearly there were no discernable results obtained by either the Respondent or Attorney Palmieri. Although the representation of the Complainant against the Southington police department might have precluded the Respondent from representing the police department in the future, the Respondent provided no evidence of any such preclusion and this argument remains purely speculative. This argument is further undermined by the fact that litigation was never initiated and no discovery or other investigation was conducted. Finally, the length of time the Respondent’s firm represented the Complainant and the minimum involvement the Respondent had in the matter significantly reduced the value that this reviewing committee attributed to this factor.
Surely, the time spent initially by Attorney Palmieri is compensable. Howver, at the time Attorney Palmieri performed the legal work for the Complainant he was a relatively inexperienced attorney and had been practicing law for about two and one half years. This reviewing committee appreciates that the Respondent had a great deal of experience in civil rights matters and was well known and accepted in the community as a lawyer who had some amount of legal expertise in the area of civil rights and this ought to be taken into consideration in deciding the appropriate compensation. However, taken as a whole, $5000 for the Respondent’s legal services in this instance is unreasonable. Accordingly, this reviewing committee orders that, pursuant to Practice Book §2-37(a)(6), the Respondent is to submit his legal bill to fee arbitration within thirty (30) days of the issuance of this decision. The Respondent and the Complainant are advised of the availability of the Connecticut Bar Association’s Resolution of Legal Fee Disputes Program, 30 Bank Street , New Britain, Connecticut 06050-0350. The Respondent shall certify to the Statewide Grievance Committee, through written correspondence, that the matter has been submitted to fee arbitration within fourteen (14) days of such submission. The Respondent shall certify to the Statewide Grievance Committee, through written correspondence, the decision of the fee arbitration board within fourteen (14) days of such decision, and the Respondent’s compliance with any relevant portion of the decision. If for any reason the matter is not submitted to fee arbitration, including that an accommodation is reached on the fee issue that is acceptable to the Complainant, the Respondent shall inform the Statewide Grievance Committee of the reasons in writing within sixty (60) days of this decision
DECISION DATE : ____________
______________________________
Attorney Dominic J. Rutigliano
______________________________
Attorney David I. Channing
______________________________
Dr. Frank G. Regan
[1] A hearing was held on May 12, 2004 at which the Complainant and the Respondent appeared and testified. After the hearing, reviewing committee members Attorney Frederick Krug and Attorney Margarita Moore rendered a final decision dated September 19, 2004 reprimanding the Respondent for violating Rule 1.3 of the Rules of Professional Conduct by failing to provide any legal services on behalf of the Complainant and by failing to diligently advance the Complainant’s claim. On October 4, 2004, the Respondent filed a request for review of the reprimand pursuant to Practice Book §2-35(g). On October 21, 2004, the Statewide Grievance Committee granted the Respondent’s request for review, rescinded the reprimand, and ordered that a new hearing be held to determine whether the work performed by the Respondent and/or his firm between November of 1996 and May of 1997 met ethical standards, whether newly provided evidence from the Respondent freed him from the obligations imposed by Rule 1.3 of the Rules of Professional Conduct, and whether the fee charged was reasonable.