Patricia Letourneau v. Robert D. Swartout

STATEWIDE GRIEVANCE COMMITTEE

Patricia Letourneau, Complainant vs. Robert D. Swartout, Respondent

Grievance Complaint #06-0195

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 May 4, 2006. The hearing addressed the record of the complaint filed on February 27, 2006 and the probable cause determination filed by the New Britain Judicial District, and Judicial District of Hartford for Geographical Area 12 and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel on April 7, 2006, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.3, 1.4, 1.5(b), 8.1(2) and 8.4(4) of the Rules of Professional Conduct and Practice Book Section 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 April 7, 2006. Pursuant to Practice Book Section 2-35(d), Assistant Disciplinary Counsel Frank Blando pursued the matter before this reviewing committee. The Complainant appeared at the hearing and testified. The Respondent also appeared and testified. No exhibits were admitted into evidence.

This reviewing committee considered the following:

The Respondent stipulated to the facts and recommended disposition contained in the Prehearing Memorandum of Disciplinary Counsel in pertinent part, as follows.

Sometime in or around May, 2003, the Complainant retained the Respondent to represent the Complainant regarding possible claims the Complainant may have had against her former employer. The record does not reflect the genesis of those possible claims. Prior to meeting with the Respondent, the Complainant had obtained the appropriate forms from the State of Connecticut’s Commission on Human Rights and Opportunities (hereinafter CHRO) regarding said claims.

According to the Complainant, the Respondent told her he would “take care” of filing the complaint forms with CHRO. Although the Respondent had never represented the Complainant prior to this time, he, nonetheless, did not execute a retainer agreement with her.

Subsequently, the Complainant determined that the Respondent had never filed a complaint with the CHRO. According to Complainant, the Respondent also told her that he would file suit against Complainant’s former employer, but he never did that either.

Additionally, the Complainant alleges that the Respondent failed to return many of her phone calls and that the Respondent changed his telephone number, and, as a result, the Complainant then was unable to telephone him to obtain a status of her claims.

The Complainant filed the instance grievance complaint on or about February 22, 2006. The Respondent did not respond to the local panel’s request for a reply. Accordingly, on April 7, 2006, the New Britain Judicial District and Judicial District of Hartford for Geographical Area 12 and the Towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel found probable cause that the Respondent had violated Rules 1.1, 1.3, 1.4, 1.5(b), 8.1(2) and 8.4(4) of the Rules of Professional Conduct as well as Practice Book §2-32(a)(1).

Disciplinary Counsel has investigated this matter and has spoken both to the Complainant and to the Respondent. The Respondent did not deny that he mishandled his representation of the Complainant but offered no explanation in mitigation of that.

The Complainant, on the other hand, depended upon the Respondent, entirely, to remedy her claims against her former employer. To date, the Complainant has not sought other counsel, so it is uncertain whether or not the Statute of Limitations has ‘run’ on her claims. However, the CHRO’s 180 days filing limitation clearly has expired and, therefore, any duty the Complainant had to exhaust her administrative remedies before seeking a judicial redress has been extinguished.

The Respondent does assert, however, that he did not respond to the local panel because he had not received the panel’s notice of the instant grievance complaint until it was “too late” to respond, thereby resulting in the probable cause finding regarding Rule 8.1(2) and Practice Book §2-32(a).

The Respondent violated Rule 1.1, Competence, by failing to file either a CHRO claim, thereby exhausting Complainant’s administrative remedies, or a lawsuit (if appropriate) as well as by failing to contact the Complainant’s former employer in an attempt to pursue some alternative resolution of the Complainant’s dispute.

Additionally, the Respondent also violated Rule 1.3 Diligence, when he virtually did nothing in Complainant’s behalf. Arguably, the Respondent has a Rule 3.1 duty not to assert frivolous claims or defenses, but he not only had a duty to the Complainant to vigorously pursue the matter on her behalf, but he also had a duty to, at a minimum, investigate the situation to ascertain whether the Complainant had any legitimate claim to pursue. The Respondent failed to vigorously pursue the Complainant’s matter or to investigate whether the Complainant had any legitimate claim to pursue.

The Respondent also clearly violated Rule 1.4 Communication when he failed to respond to the Complainant’s phone calls. Moreover, he compounded this violation when he moved his office and telephone and failed to inform the Complainant of his new telephone number and address.

The unchallenged allegations of the complaint clearly set forth conduct violative of Rule 1.5(b) of the Rules of Professional Conduct in that there is no separate, written fee agreement. The Respondent had never represented the Complainant before this time, so he had an absolute duty to execute a written fee agreement with the Complainant. No fee agreement ever was executed; therefore, Respondent clearly violated Rule 1.5(b) of the Rules of Professional Conduct.

As a result of all of the above, the Respondent violated Rule 8.4(4) of the Rules of Professional Conduct because his inaction may have materially and inalterably prejudiced the Complainant’s ability to pursue her claim against her former employer. That is not to say that the Complainant would have been successful in pursuance of her allegations, but the administration of justice demands that she, at least, get the opportunity to “air” her complaints so that the appropriate authoritative bodies could rule on them. The Complainant may have entirely lost that opportunity as a result of Respondent’s incompetence and lack of diligence. Accordingly, the Respondent should be reprimanded for violations of Rules 1.1, 1.3, 1.4(a) and (b), 5.1(b) and 8.4(4) of the Rules of Professional Conduct.

This reviewing committee makes the following findings of fact by clear and convincing evidence:

In May of 2003, the Complainant retained the Respondent to represent her regarding possible claims against her former employer. The Respondent did not provide the Complainant with a written fee agreement. The Respondent informed the Complainant that he would file a complaint with the State of Connecticut Commission on Human Rights and Opportunities. The Respondent also informed the Complainant that he would file suit against her former employer. The Respondent did not file a complaint with the CHRO or file suit on the Complainant’s behalf.

The Complainant telephoned the Respondent on many occasions but the Respondent did not return her telephone calls. Thereafter, the Respondent changed his telephone number and the Complainant was unable to telephone him.

The Respondent did not file an answer to this grievance complaint.

This reviewing committee also considered the following:

The Respondent does not have a prior disciplinary history. At the hearing before this reviewing committee, the Respondent testified that his representation of the Complainant was his first labor law representation. The Respondent further testified that he reviewed the applicable statutory law but misinterpreted the start date of the statute of limitations as the date of termination rather than the date of the incident giving rise to the complaint. As a result, the statute of limitations expired before the Respondent filed a complaint on behalf of the Complainant.

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

The Respondent lacked the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the Complainant. The Respondent’s first representation in the area of labor law required the Respondent to undertake careful and necessary study in order to provide the Complainant with competent representation. The Respondent’s failure to provide the Complainant with competent representation constituted a violation of Rule 1.1 of the Rules of Professional Conduct.

The Respondent’s representation of the Complainant also lacked reasonable diligence and promptness. The Respondent’s failure to file the Complainant’s claim within the applicable statute of limitations constituted a violation of Rule 1.3 of the Rules of Professional Conduct.

The Respondent further compounded his misconduct by not returning the Complainant’s telephone calls, by not informing her of his new telephone number, and by not timely notifying her of the expiration of the statute of limitations. The Respondent’s failure to keep the Complainant reasonably informed about the status of her matter and promptly answer her telephone calls constituted violations of Rule 1.4 of the Rules of Professional Conduct.

The Respondent did not have a written retainer agreement with the Complainant. The Respondent was retained by the Complainant in May of 2003. The Respondent had not previously represented the Complainant. The Respondent’s failure to communicate to the Complainant, in writing, the basis or rate of this fee constituted a violation of Rule 1.5(b) of the Rules of Professional Conduct.

The Respondent did not file an answer to this grievance complaint as required by Practice Book §2-32(a)(1). The Respondent has not shown good cause for his failure to file an answer to this grievance complaint. His failure to file an answer was in violation of Rule 8.1(2) of the Rules of Professional Conduct and Practice Book §2-32(a)(1).

The Respondent’s failure to timely file suit on the Complainant’s behalf or to file a complaint with the CHRO, compounded by his failure to respond to her telephone messages, constituted conduct prejudicial to the administration of justice in violation of Rule 8.4(4) of the Rules of Professional Conduct.

Noting the Respondent’s forthright admission of the stipulated facts in this matter, we reprimand the Respondent for violating Rules 1.1, 1.3, 1.4, 1.5(b), 8.1(2) and 8.4(4) of the Rules of Professional Conduct and Practice Book §2-32(a)(1).

DECISION DATE: 8/4/06

Attorney Kathleen D. Stingle

Attorney Geoffrey Naab

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Mr. Peter Jenkins