Diana DiGiacomo-Canellas v. Francis A. Miniter

STATEWIDE GRIEVANCE COMMITTEE

Diana DiGiacomo-Canellas, Complainant vs. Francis A. Miniter, Respondent

Grievance Complaint #05-0317A

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, One Court Street, Middletown, Connecticut on March 9, 2006. The hearing addressed the record of the complaint filed on March 30, 2005, and the probable cause determination filed by the Hartford Judicial District for Geographical Area 13 and the town of Hartford Grievance Panel on June 15, 2005, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4, 3.3 and 5.1 of the Rules of Professional Conduct. The hearing also considered an additional finding of probable cause issued on January 5, 2006, following a hearing on January 3, 2006, by the reviewing committee of Attorney Dominick Rutigliano, Attorney David Channing and Dr. Frank Regan, finding that there existed probable cause that the Respondent violated Rules 8.1(1) and 8.4(3) of the Rules of Professional Conduct.

Notice of the March 9, 2006 hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on January 30, 2006. Both the Complainant and the Respondent appeared at the hearing and testified. Pursuant to Practice Book §2-35(d), Chief Disciplinary Counsel Mark Dubois pursued the matter before this reviewing committee, assisted by student interns Tyler Francis and Andrew Park of the Yale Law School Lawyering Ethics Clinic. Attorney Daniel Spinetti, Attorney Nicholas Kocian, and Ms. Kyna Smith testified as witnesses. Two documents were admitted into evidence.

Reviewing committee member Dr. Paul Powers was not present for the hearing. Since the Respondent did not waive Dr. Power’s participation, he reviewed the record in this matter, including the transcript and exhibits from the March 9, 2006 hearing, and participated in the rendering of this decision.

This reviewing committee finds the following facts by clear and convincing evidence:

The Complainant retained the Respondent’s law firm to bring a wrongful death lawsuit on behalf of her uncle, who was killed in an accident in New York on September 7, 2000. The Complainant’s initial contact at the Respondent’s firm was Attorney Daniel Spinetti, an associate of the Respondent, but the lawsuit was to be filed by the Respondent since he was the only lawyer in the firm who was admitted in New York. On or about September 3, 2003, the Respondent filed a lawsuit in federal court in New York, based upon diversity jurisdiction. The lawsuit was brought in the name of the estate of the Complainant’s uncle, and made claims for personal injuries and for wrongful death. The defendants in the lawsuit moved to dismiss the complaint, and the Respondent filed an objection thereto. In January of 2004, the federal court dismissed the action. The wrongful death claim was dismissed with prejudice because the action was not brought within New York’s two-year statute of limitations for such claims. The personal injury, or “survival” claim, was dismissed without prejudice because the action was not brought in the name of a personal representative of the decedent’s estate.

The Respondent did not inform the Complainant of the dismissal of the action, but an application was made to the Hartford Probate Court for the appointment of the Complainant as the administratrix for the uncle’s estate. After the Complainant was so appointed, the Respondent filed a new federal complaint in July of 2004, naming the Complainant as plaintiff in her capacity as administratrix. The complaint was otherwise the same as the original, with the exception that it stated specifically that a wrongful death claim was not being made, noting the prior dismissal.

In September of 2004, Attorney Spinetti was recalled to active service in the military and was deployed to Iraq. Thereafter, the Complainant received little communication from the Respondent or his law firm regarding the case, other than a request that she provide $185 as a filing fee. Numerous telephone calls by the Complainant requesting updates as to the status of the matter were ignored. On one occasion, staff from the Respondent’s firm hung up on the Complainant twice in the same day. The Complainant thereupon retained counsel, Attorney Nicholas Kocian, to inquire about the status of the case, but those efforts, including multiple requests for a copy of the Complainant’s file, were unsuccessful. A copy of the file was not provided to the Complainant until May of 2005. Only then did the Complainant learn that the original lawsuit had been dismissed in January of 2004.

This reviewing committee also considered the following:

In his response to the grievance complaint, the Respondent maintained that he had directed his secretary to send documents to the Complainant on or about February 1, 2005 and that she had done so. An affidavit and the testimony of the Respondent’s former secretary, Kyna Smith, supported the Respondent’s contention. The Respondent also claimed in his answer, regarding the current status of the lawsuit, that the defendant’s counsel had failed to move to dismiss in response to a position letter from the Respondent dated January 28, 2005, and that the Respondent had thereafter moved for a default. However, documentation from defendants’ counsel reflects that the Respondent was aware that the defendants’ counsel was awaiting the Respondent’s position letter but that it was never received.

Attorney Nicholas Kocian testified that the Complainant came to him in late December of 2004 due to her frustration regarding communication in the matter. Attorney Kocian contacted the Respondent, who stated that he would provide a copy of the file to the Complainant. The Complainant returned to him about a month later because the file had not been provided. Attorney Kocian wrote to and called the Respondent a number of times in an effort to obtain a copy of the file. However, the file was only produced in May of 2005 pursuant to a court order issued after Attorney Kocian had brought the matter to the attention of the Probate Court.

On the issue of the missed statute of limitations, the Respondent testified that he only became aware of the Complainant’s case a few months before the suit was filed. The Respondent acknowledged reading the complaint before he signed it, but he did not research the statute of limitations issue, and he did not catch the issue of the proper plaintiff. The Respondent did not recall the filings in December of 2003 in opposition to the motion to dismiss, even though he signed three documents as part of the objection, but stated he would have read and approved them. Attorney Spinetti testified that the Respondent was made aware of the Complainant’s case shortly after she retained the law firm, because the matter had to be brought in New York.

This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in unethical conduct. The lawsuit was filed beyond the statute of limitations for a wrongful death action, constituting an obvious lack of diligence, in violation of Rule 1.3 of the Rules of Professional Conduct. As both the owner of the law firm and as the attorney who signed the complaint, the Respondent is culpable for this lapse. To the extent that the Respondent might seek to avoid responsibility due to the actions of his associates, he would still be responsible for those actions under Rule 5.1 of the Rules of Professional Conduct. In addition to responsibility under Rule 5.1, having acknowledged that he read and signed the complaint, the Respondent is also directly responsible for the obvious flaws in that complaint, including the missed statute of limitations and that it was brought in the name of the wrong plaintiff. The Respondent also violated Rule 1.4(a) of the Rules of Professional Conduct by failing to keep the Complainant reasonably informed about the status of the matter and by not promptly complying with reasonable requests for information. The Complainant was not timely informed about the dismissal of the lawsuit, and the Respondent failed to reply to numerous requests for information about the status of the lawsuit from October of 2004 until a copy of the file was finally turned over to the Complainant in May of 2005. With regard to the Respondent’s representations in his answer about producing the file and about the lawsuit’s status and viability, this reviewing committee is critical of the Respondent’s handling of these issues. However, this reviewing committee is unable to find that the Respondent’s conduct rises to the level of a violation of Rules 3.3, 8.1(1) or 8.4(3) of the Rules of Professional Conduct.

Accordingly, the Respondent is reprimanded for violating Rules 1.3, 1.4 and 5.1 of the Rules of Professional Conduct.

DECISION DATE: 6/23/06

Attorney Geoffrey Naab

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Attorney Jorene Couture

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Dr. Paul D. Powers