Hazel Brown, Complainant vs. Philip M. Hart, Respondent
Grievance Complaint #04-0502
Pursuant to Practice Book ß2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on November 10, 2004.† The hearing addressed the record of the complaint filed on May 28, 2004, and the probable cause determination filed by the New Haven Judicial District Grievance Panel for Geographical Area 7 and the towns of Branford, East Haven, Guilford, Madison and North Branford on September 20, 2004, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct and Practice Book ß2-32.† The hearing also addressed the additional finding of probable cause issued by this reviewing committee on October 25, 2004, finding that there existed probable cause that the Respondent violated Rule 8.1(2) of the Rules of Professional Conduct.
Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on September 27, 2004.† Pursuant to Practice Book ß2-35(d), Assistant Disciplinary Counsel Patricia A. King pursued the matter before this reviewing committee. Attorney King was assisted by law student interns Liana Wolf and Praveen Krishna from the Yale Law School Lawyering Ethics Project.† Both the Complainant and the Respondent appeared at the hearing and gave testimony.
This reviewing committee finds the following facts by clear and convincing evidence:
In 1998, the Complainant sustained personal injuries in a slip and fall accident at a Stop & Shop store, and retained the Respondent to represent her in relation to those injuries.† The Respondent filed suit on behalf of the Complainant against Stop & Shop before the statute of limitations expired.† On January 11, 2001, Stop & Shop filed a Motion for Judgment of Nonsuit based on the Respondentís failure to comply with discovery requests dated September 27, 2000. On August 27, 2001, the court ordered the Respondent to comply with Stop & Shopís discovery requests by September 14, 2001.
The Complainantís deposition was originally noticed for September 27, 2000.† Her deposition was cancelled and thereafter renoticed eleven times Ė for October 17, 2000, December 8, 2000, January 16, 2001, August 7, 2001, September 19, 2001, November 14, 2001, January 15, 2002, May 10, 2002, July 1, 2002, July 10, 2002 and July 14, 2002.† The Complainantís deposition never went forward.† The Complainant received several letters from the Respondent indicating the scheduling, cancellation and rescheduling of her deposition; however, the Respondent never explained to the Complainant the reasons for renoticing her deposition.† The Complainant telephoned the Respondent on a number of occasions in 2002, but the Respondent did not return her telephone calls.† The Complainant thereafter spoke with the Respondent one time in 2003 and another time in April of 2004.† During those conversations, the Respondent told the Complainant that he was attending to her case, that it was a jury case and that such cases take a long time to conclude.
On February 21, 2003, Stop & Shop filed a Motion for Judgment of Dismissal based on the Complainantís failure to attend her deposition and the Respondentís failure to respond to telephone calls from counsel to arrange a firm date for the Complainantís deposition.† The court granted the motion and dismissed the Complainantís case on March 10, 2003.† The Respondent did not file a motion to open the judgment of dismissal and did not advise the Complainant that her case had been dismissed.
The Respondent did not file a written response to the grievance complaint.
This reviewing committee also considered the following:
The Complainant testified that she never requested that her deposition be cancelled and that the Respondent did not inform her that Stop & Shop filed motions for nonsuit and dismissal.† She further testified that the Respondent did not advise her that the motion for dismissal was granted, terminating her case.† The Complainant denied that the Respondent informed her that her case was weak and that she requested that he find her a medical provider.† She also explained that the Respondent did not request any documentation from her regarding medical treatment or billing.
The Respondent testified that he previously represented the Complainant in a workersí compensation matter and that he took this personal injury matter as a courtesy.† He explained that the Complainantís case was weak and insisted that he explained this to the Complainant at the outset of the representation.† He maintained that these discussions were oral and that he did not memorialize them in writing.† In addition, the Respondent claimed that the Complainant repeatedly requested that he find a medical provider who would treat her based on a letter of protection, but that he was unsuccessful in doing so.† The Respondent testified that he had no notes or medical documentation in the Complainantís files, and that he was unaware that the Complainant received medical treatment for her injuries.† He further testified that he filed suit to protect the Complainantís interests, but acknowledged that that was probably a mistake given his assessment of the case.† The Respondent maintained that he believed that he filed responses to Stop & Shopís discovery requests; however, he did not have a copy of the responses in his file.† The Respondent testified that he cancelled some of the deposition dates and that opposing counsel cancelled some of the dates as well.† He admitted that he did not respond to Stop & Shopís motion for dismissal based on the Complainantís failure to attend her deposition.† Finally, the Respondent testified that he did not submit a written answer to the grievance complaint because he believed that a hearing would be conducted in this matter given the nature of the allegations and the fact that he did not have any documentary evidence of his communications with the Complainant.
This reviewing committee finds the following violations of the Rules of Professional Conduct and the Practice Book by clear and convincing evidence:
The Respondent violated Rule 1.3 of the Rules of Professional Conduct by failing to pursue the Complainantís personal injury claim in a diligent manner.† Although the Respondent filed a lawsuit on behalf of the Complainant against Stop & Shop, he failed to comply with discovery requests and attempts to depose the Complainant, resulting in the dismissal of the Complainantís case.† Moreover, the Respondent had virtually no file for the Complainant and took no action to protect the Complainantís interests when her case was dismissed.† We do not find credible the Respondentís testimony that he advised the Complainant that her case was weak.† Rather, we find the Complainantís testimony credible that the Respondent never advised her of the assessment that her case was weak and that the Respondent led her to believe that her case was pending when, in fact, it had been dismissed.† It is irrelevant whether the Complainantís case was weak or strong; once the Respondent filed suit on the Complainantís behalf, he had a duty to pursue the matter in a diligent manner, which he clearly failed to do.
By failing to respond to the Complainantís requests for updates regarding her case, the Respondent violated Rule 1.4(a) of the Rules of Professional Conduct.† The Complainant left numerous telephone messages for the Respondent during 2002 in relation to her case.† However, the Respondent did not respond to the Complainantís telephone calls.† The Respondent neither denied such conduct nor provided any explanation for his failure to respond to her requests.
The Respondent also violated Rule 1.4(b) of the Rules of Professional Conduct by failing to advise the Complainant as to the true status of her lawsuit against Stop & Shop, thereby preventing her from making informed decisions regarding how to proceed with her case.† The Respondent did not inform the Complainant that a motion for nonsuit was filed due to the Respondentís failure to comply with discovery requests, and did not explain to the Complainant why her deposition was renoticed eleven times.† If the Respondent had informed the Complainant of these facts, then she may have decided to retain new counsel who could devote more time and attention to her case.† Most importantly, the Respondent never advised the Complainant that her case was dismissed on March 10, 2003.† Rather, the Respondent led the Complainant to believe during their two conversations in 2003 and 2004 that her case was still pending.† If the Respondent had been forthright with the Complainant, then she could have instructed him to file a motion to open the dismissal, retained new counsel to do so on her behalf or filed the motion pro se.
The Respondentís failure to answer the grievance complaint was without good cause in violation of Practice Book ß2-32(a)(1).† The fact that the Respondent believed a hearing would be held in this matter in no way excuses his failure to submit a written answer to the grievance complaint.† Practice Book ß2-32(a)(1) is unambiguous Ė failure to submit a timely response to a grievance complaint constitutes misconduct.† We find the Respondentís explanation woefully insufficient to establish good cause for his failure to submit a timely answer to the grievance complaint.† We also find that the Respondentís failure to answer the grievance complaint as detailed above constitutes a violation of Rule 8.1(2) of the Rules of Professional Conduct.
In determining the appropriate disposition of this matter, we considered the Respondentís professional disciplinary history, which consisted of the imposition of the following discipline:
Grievance Complaint #01-0320, Adelman v. Hart, reprimand issued on February 20, 2003;
Grievance Complaint #03-0197, Turner v. Hart, reprimand issued on July 16, 2004;
Grievance Complaint #03-0239, Downs v. Hart, reprimand issued on July 16, 2004; and
Grievance Complaint #03-0240, Thomas v. Hart, reprimand issued on July 16, 2004.
Since this reviewing committee finds that the Respondent violated Rules 1.3, 1.4(a) and (b), and 8.1(2) of the Rules of Professional Conduct and Practice Book ß2-32(a)(1), and in consideration of the Respondentís professional disciplinary history, we order that the Respondent be presented to the Superior Court for whatever discipline the court deems appropriate.† Given that the presentment will be a trial de novo, we further order that the presentment complaint contain charges that the Respondent violated Rule 8.4(3) of the Rules of Professional Conduct by misleading the Complainant into believing that her lawsuit against Stop & Shop was pending when, in fact, it had been dismissed, and Rule 8.4(4) of the Rules of Professional Conduct by failing to respond to attempts to depose the Complainant, thereby resulting in the dismissal of the Complainantís lawsuit against Stop & Shop, and by failing to act on the Complainantís behalf to protect her interests upon the dismissal of her case.
Attorney Raymond B. Rubens
Attorney Margarita Moore
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Ms. Dahlia Johnston