STATEWIDE GRIEVANCE COMMITTEE

Leonard Aronow, Complainant vs. Jeffrey P. Macarz, Respondent

Grievance Complaint #05-0907

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 October 3, 2006.  The hearing addressed the record of the complaint filed on October 3, 2005, and the probable cause determination filed by the New Haven Judicial District Grievance Panel for Geographical Area 7 and the towns of Bethany, New Haven and Woodbridge on November 15, 2005, finding that there existed probable cause that the Respondent violated Rules 3.1, 3.3(a)(1), and (4), 3.4(1), (2) and (3), 4.1(1) and 8.4(1), (3) and (4) of the Rules of Professional Conduct and Practice Book §2-32(a)(1).

Notice of the hearing was mailed to the Complainant, to the Office of the Chief Disciplinary Counsel and to the Respondent on September 5, 2006.  Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Patricia King pursued the matter before this reviewing committee.  The Complainant and the Respondent appeared at the hearing and testified.  Hearings previously scheduled for February 1 and April 5, 2006 were continued at the request of the Respondent.  A hearing previously scheduled for August 1, 2006 was continued at the request of Attorney King.  Four exhibits were admitted into evidence.  Dr. Romeo Vidone recused himself from hearing the instant grievance complaint.  Attorney King and the Respondent waived Dr. Vidone’s participation and, accordingly, this decision was rendered by the undersigned.

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

The Complainant and the Respondent met while working together in 1992 and became friends.  The Respondent performed legal services for the Complainant on occasion.  The Respondent and his family lived in a home located at 48 Fox Hill Road, Clinton, Connecticut (hereinafter referred to as the “Clinton property”).  The Respondent was experiencing financial difficulties when, in early 2003, he asked the Complainant to purchase the Clinton property and allow the Respondent to remain living there as a tenant.  The Complainant agreed and, on January 31, 2003, the Clinton property was sold to the Complainant for $352,000.  The purchase was financed by an adjustable rate mortgage from First Franklin Financial (hereinafter referred to as “First Franklin”).  On February 3, 2003, the Respondent and the Complainant signed a residential lease agreement pursuant to which the Respondent agreed to pay the Complainant $2800 monthly, payable on the first of the month.  The lease required the Respondent to pay the cost of utilities and required the Complainant to maintain insurance on the Clinton property and to pay the real estate taxes.

The Respondent continued to have financial difficulties and often failed to pay the rent for the Clinton property in a timely manner or at all.  As a result, the Complainant began a summary process action against the Respondent in the fall of 2004.  In January of 2005 judgment entered in favor of the Complainant.  On January 10, 2005, the Respondent and the Complainant entered into a stipulated agreement regarding the Clinton property, thereby staying the execution of the judgment.  The agreement provided that the Respondent would endeavor over the next year to obtain financing in order to buy back the Clinton property.  In addition, the agreement shifted the responsibility for paying the real estate taxes and home owner’s insurance to the Respondent.  The Respondent also agreed to pay the Complainant’s monthly mortgage payment in lieu of the previously agreed upon monthly rent payment of $2800.   In return, the Complainant agreed to withdraw the lawsuit he had filed against the Respondent.  The Respondent ceased making his monthly payments in June of 2005.

In July of 2005, the Complainant and the Respondent returned to court and entered into another stipulated agreement.  The written agreement simply stated that the Respondent was not in compliance with the January 2005 stipulation and that an execution order may be served.  The execution served on the Respondent provided the Respondent until August 17, 2005 to vacate the Clinton property.  On August 16, 2005, the Respondent filed for voluntary chapter seven bankruptcy naming the Complainant as the only creditor.  The Respondent filed the bankruptcy petition to prevent the Complainant from executing the eviction.  The bankruptcy petition filed by the Respondent was sworn to and signed under penalty of perjury.  The form required the Respondent-petitioner to answer whether he had filed for bankruptcy within the last six years.  The Respondent answered the question in the negative when, in actuality, the Respondent had filed for bankruptcy on or about February 15, 2002. 

On August 17, 2005, the Complainant filed a motion for relief from the automatic stay that was imposed due to the Respondent’s bankruptcy petition.  The court granted the Complainant’s relief on October 8, 2005.  Sometime thereafter the Respondent vacated the Clinton property.  On March 31, 2006, the Clinton town attorney sent the Complainant a letter demanding that the Complainant pay a tax arrearage on the Clinton property in the amount of $6182.46.  On November 14, 2006, First Franklin commenced a foreclosure action against the Complainant and, on December 19, 2005, the court ordered a foreclosure by sale of the Clinton property.  On May 23, 2006, the town of Clinton filed a lawsuit against the Complainant for non-payment of the property taxes. 

The Respondent did not answer the grievance complaint.  The Respondent’s disciplinary history includes three reprimands.  In addition, on December 5, 2005, the Superior Court placed the Respondent on interim suspension to commence on December 20, 2005 as the result of a petition brought by the Office of the Chief Disciplinary Counsel on September 21, 2025.  On August 30, 2006, the Respondent was disbarred.

This reviewing committee also considered the following:

The Complainant testified that he believed that he was going to co-sign for a loan on behalf of the Respondent.  The Complainant claimed that at the time of the closing he was unaware that the mortgage was going to be in his name. He further testified that he trusted the Respondent and, therefore, did not read the closing documents that he signed.  The Complainant stated that when the marshal made his first attempt to serve the eviction papers, the Respondent lied by telling the marshal that the Complainant’s wife had agreed to let the Respondent stay in the house.

The Respondent conceded that he filed the bankruptcy petition to avoid being evicted.  However, the Respondent explained that he had nowhere else to go.  The Respondent denied that he breached the agreements with the Complainant; however, he conceded that he owed the Complainant money.  The Respondent claimed that, when he filed the 2005 bankruptcy petition, he did not remember filing for bankruptcy in 2002.  The Respondent insisted that the Complainant’s wife agreed to let him stay in the Clinton property prior to the marshal’s attempt at service. 

This reviewing committee finds the following violations of the Rules of Professional Conduct and the Practice Book:

The Respondent admittedly filed the bankruptcy petition, at least in part, to avert the execution of an eviction order.  In addition, the only creditor listed in the Respondent’s bankruptcy petition was the Complainant and the only debt the Respondent claimed was the debt owed to the Complainant.  However, absent any evidence that the Respondent was able to pay the Complainant but refused to do so and, absent any evidence that the Respondent had other creditors he omitted from the petition, we can not conclude by clear and convincing evidence that the filing of the bankruptcy petition was frivolous.  Accordingly, we conclude that the Respondent did not violate Rule 3.1 of the Rules of Professional Conduct.

The Respondent’s bankruptcy petition was presented to the bankruptcy court in the form of a sworn statement made under penalty of perjury.  This reviewing committee finds that the Respondent knowingly made a false statement in the petition when he stated that he had not filed for bankruptcy in the six years prior to the 2005 bankruptcy filing when, in fact, he had.  We do not find credible the Respondent’s assertion that he forgot he filed for bankruptcy in 2002.  Accordingly, we conclude that the Respondent violated Rules 3.3(a)(1) and 8.4(3) of the Rules of Professional Conduct.  This reviewing committee also concludes that the Respondent’s refusal to abide by the stipulated agreements, his failure to comply with the eviction order, and his obstruction of the execution thereof, violated Rules 3.4(3) and 8.4(4) of the Rules of Professional Conduct.

The Respondent’s failure to answer the grievance complaint without good cause violated Rule 8.4(1) of the Rules of Professional Conduct and Practice Book §2-32(a)(1). 

This reviewing committee found that the Respondent knowingly made a false statement in his bankruptcy petition when he asserted that he had not filed for bankruptcy in the six years prior to the 2005 bankruptcy filing.  Notwithstanding the falsity of the statement, the bankruptcy petition was not “evidence” as intended by Rule 3.3(a)(4) of the Rules of Professional Conduct.  Therefore, we conclude that there was no violation of Rule 3.3(a)(4) of the Rules of Professional Conduct.  In addition, The Respondent’s conduct did not unlawfully obstruct the Complainant’s access to evidence, nor did the Respondent unlawfully alter, destroy or conceal a document or other material having potential evidentiary value and the Respondent did not falsify evidence.  As such, the Respondent’s conduct in this instance did not violate Rule 3.4(1) and (2) of the Rules of Professional Conduct.   Further, Rule 4.1(1) of the Rules of Professional Conduct applies to conduct engaged in while representing a client.   When the Respondent filed the bankruptcy petition containing the false statement, he was representing himself and not representing a client.  For that reason, we conclude that the Respondent did not violate Rule 4.1(1) of the Rules of Professional Conduct.

After concluding that the Respondent’s conduct violated the Rules of Professional Conduct and the Practice Book, and in deciding the appropriate discipline to impose, this reviewing committee considered the Respondent’s extensive grievance history an aggravating factor.  In addition, the Respondent’s dishonest and prejudicial conduct in this instance conflicts directly with a lawyer’s duty to behave ethically in his dealings with others and especially with the court.    For the foregoing reasons this reviewing committee directs The Office of the Chief Disciplinary Counsel  to file a presentment against the Respondent in the superior court for the imposition of whatever discipline the court deems appropriate. 

                                                                                    DECISION DATE:      12/22/06

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                                                                                    Attorney Shari Bornstein

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Attorney Geoffrey Naab