Heidi Barshinger v. Michael Ronan

STATEWIDE GRIEVANCE COMMITTEE

Heidi Barshinger, Complainant vs. Michael Ronan, Respondent

Grievance Complaint #05-0542

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, 80 Washington Street, Hartford, Connecticut on February 2, 2006. The hearing addressed the record of the complaint filed on June 13, 2005, and the probable cause determination filed by the Danbury Judicial District Grievance Panel on September 7, 2005, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4(a) and 1.15(a) and (b) of the Rules of Professional Conduct. The hearing also addressed the probable cause determination issued by the reviewing committee of Attorney Margarita Moore, Attorney David Channing and Mr. Malcolm Forbes on December 21, 2005, finding that there existed probable cause that the Respondent violated Rule 1.15(d) of the Rules of Professional Conduct.

This matter was originally scheduled for a hearing on November 2, 2005, but was continued at the request of the Respondent. The matter was thereafter scheduled for a hearing on January 3, 2006 but was continued due to the additional probable cause determination issued by the reviewing committee. Notice of the February 2, 2006 hearing was mailed to the Complainant, to the Office of the Chief Disciplinary Counsel, and to the Respondent on December 9, 2005. Pursuant to Practice Book Section 2-35(d), Chief Disciplinary Counsel Mark Dubois pursued the matter before this reviewing committee. The Complainant did not appear at the hearing. The Respondent, represented by Attorney Donald Mitchell, appeared at the hearing and testified. One exhibit was admitted into evidence. A prehearing memorandum was filed by the Office of the Chief Disciplinary Counsel.

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

The Respondent was retained in January of 2003 by Dorothea Sauter to probate the estate of Robert Montesi. The Complainant is the daughter of Ms. Sauter who is the executrix of the Montesi Estate. Ms. Sauter authorized the Respondent to speak with the Complainant regarding estate matters.

In April of 2003, the Respondent sold the estate home and a health food store owned by Mr. Montesi. The Respondent deposited the net sale proceeds into his IOLTA trust account. In July of 2003, the Complainant began sending the Respondent emails requesting how much money the Respondent was holding in escrow from the sale of the home and business and how much longer it would take for the Respondent to close the estate. From July of 2003 until April 15, 2004, the Complainant sent the Respondent seven emails requesting this information. The Respondent responded to the Complainant on October 31, 2003, apologizing for not closing the estate and advising that he would make a “final push” to get the estate closed. A March 8, 2004 email from the Respondent to the Complainant advised that he would close the estate that spring and that he would review the Complainant’s numerous emails and address all of her questions. In her April 2, 2004 email, the Complainant requested an accounting of the funds the Respondent was holding in escrow. The Respondent responded on April 6, 2004 advising that the funds were being held in his trustee account and that he would immediately finish the estate and provide an accounting. The Complainant responded by requesting a copy of the bank statements where the escrow funds were being held.

On April 16, 2004, the Respondent faxed the Complainant draft closing statements for the sale of the estate home and business. The closing statements showed that the net proceeds available from the sale of the estate home were $68,078.44 and the net proceeds available from the sale of the estate business were $30,356.47. The Respondent also provided the Complainant with the balance of the three estate accounts held at Union Savings Bank.

The Complainant responded by email on April 20, 2004 advising that she was aware of the balances in the Union Savings Bank accounts because she had been receiving monthly statements from the bank and had access to these accounts. The Complainant again requested the amount the Respondent was holding in escrow from the closing proceeds and whether these funds were being held in an interest bearing account. Thereafter, on April 28, 2004, the Complainant sent the Respondent a list of expenses she had paid on behalf of the estate. The Complainant sent the Respondent emails on May 18 and 24, 2004 requesting the status of the escrow and when the estate would be closed.

By letter dated June 10, 2004, the Complainant terminated the Respondent’s services and requested an accounting of his fees. The Complainant also indicated that she believed the Respondent was holding approximately $30,690.14 in escrow from the sale of the estate home and business, after deducting vendor expenses and utility bills. The Respondent responded by email on June 15, 2004, indicating that he would provide the Complainant with the information that she requested. The Complainant responded by email on June 16, 2004 indicating that she wanted a disclosure statement for the funds being held in escrow indicating where the money was being held and the interest earned since April of 2003. The Complainant further requested that the funds be transferred to one of the Union Savings Bank estate accounts. On July 13, 2004, the Complainant sent the Respondent a facsimile and an email requesting a response to her previous email request within seven days. On September 6, 2004, the Respondent provided the Complainant with a copy of the Montesi estate file. The Respondent never filed any paperwork with the Probate Court to close the estate.

This reviewing committee also considered the following:

In his written response to the grievance complaint, the Respondent maintained that on April 28, 2003 he sent the Complainant a copy of the draft closing statements. The Respondent maintained that these closing statements showed the amount of money being held in his trustee account from the sale of the estate home and business. The Respondent further maintained that the copy of the Montesi estate file he provided to the Complainant on September 6, 2004 included a final recapitulation of the closing proceeds which showed that the Respondent was holding $18,215.77 in net proceeds from the sale of the estate home and business. The Complainant maintained that this final recapitulation was never provided to her by the Respondent and that she only received this document in connection with this grievance complaint.

The Respondent maintained that he was unable to prepare the final closing statements, tax returns or estate filings until all estate related charges and income were provided to him by the Complainant. The Respondent contended that the Complainant did not provide this information to him until April of 2004 and thereafter terminated his representation in June of 2004 before he could prepare the final documents. The Complainant argued, however, that following the closings in April of 2003, she provided the Respondent with a list of vendor expenses up to that period which would have allowed the Respondent to close the estate at that time.

The Respondent conceded that he could have moved the matter along in a more expedited fashion. The Respondent maintained, however, that he could not provide the Complainant with the bank statements showing the estate funds he was holding in his IOLTA trust account because the account did not provide a break down for each client. The Respondent’s counsel advised that the Respondent held the closing proceeds in his clients’ funds account from April of 2003 until he transferred approximately $18,000 to one of the estate accounts at Union Savings Bank on October 7, 2005.

At the hearing before this reviewing committee, the parties advised that Attorney Mitchell and the Respondent had prepared the probate documents to finalize the Montesi estate. The Complainant, however, was waiting to sign the documents pending the resolution of a dispute which had arisen regarding the Respondent’s fee. This reviewing committee kept the record open an additional month pending resolution of the fee issue. By letter dated February 23, 2006, Respondent’s counsel advised that the parties had reached a resolution and that the Respondent had agreed to refund $5,917.90 to the estate. As of February 23, 2006, the Respondent had refunded $2,600.00 to the estate. The Respondent’s counsel represented that the Respondent would refund the remaining amount as soon as he was financially able to do so.

This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in unethical conduct. The record indicates that the Respondent was retained in January of 2003 and terminated in June of 2004. During this eighteen month period, the Respondent did not prepare or file any paperwork to complete the estate, despite repeated promises to the Complainant that he would do so. Following the closings in April of 2003, the information needed to close the estate was readily available to the Respondent, however, he failed to prepare or file the documents to close the estate. We conclude that the Respondent’s lack of diligence in finalizing the Montesi estate violates Rule 1.3 of the Rules of Professional Conduct.

The Respondent also failed to address the Complainant’s numerous emails requesting the status of the closing proceeds. The record indicates that beginning in July of 2003 the Complainant began requesting the amount of funds the Respondent was holding in escrow on behalf of the estate. The Respondent, however, did not prepare a final closing statement reflecting the amount of money he was holding in escrow until September of 2004, after he was terminated by the Complainant. We find that the Respondent’s failure to respond to the Complainant’s numerous requests regarding the status of the closing proceeds constitutes a violation of Rule 1.4(a) of the Rules of Professional Conduct.

The Respondent’s failure to provide the Complainant with the amount of funds he was holding in his IOLTA account on behalf of the estate leaves this reviewing committee to conclude that the Respondent did not keep complete and accurate records of these funds in violation of Rule 1.15(a) of the Rules of Professional Conduct. In addition, we find that the Respondent held at least $18,000 in his clients’ funds account following the closings in April of 2003 until October of 2005 when he transferred these funds to an estate account at Union Savings Bank. We conclude that the Respondent’s failure to promptly transfer the closing proceeds to the estate constitutes a violation of Rule 1.15(b) of the Rules of Professional Conduct. We further conclude that the retention of these funds in his IOLTA account for over two and one-half years constitutes a violation of Rule 1.15(d) of the Rules of Professional Conduct.

Although this reviewing committee cannot order the Respondent to pay the remaining $3,317.90 he has agreed to refund the estate, we urge the Respondent to make a concerted effort to refund this amount as soon as possible. We believe that Attorney Mitchell’s continued involvement in this matter will facilitate the timely transfer of these funds to the satisfaction of both parties.

Since this reviewing committee concludes that the Respondent violated Rules 1.3, 1.4(a) and 1.15(a), (b) and (d) of the Rules of Professional Conduct, we reprimand the Respondent. We further order the Respondent to attend, in-person and at his own expense, a continuing legal education course in legal ethics and a continuing legal education course in law office management. Each course must consist of at least three credit hours and must be completed within nine months of the issuance of this decision. The Respondent is further ordered to provide the Statewide Grievance Committee with written confirmation of his compliance with these conditions within thirty days of the completion of these continuing legal education courses.

DECISION DATE: __4/21/06

______________________________

Attorney Kathleen D. Stingle

______________________________

Attorney Geoffrey Naab

Mr. Peter M. Jenkins