Dom Bianca v. Thomas C. Marshall

STATEWIDE GRIEVANCE COMMITTEE

Dom Bianca, Complainant vs. Thomas C. Marshall, Respondent

Grievance Complaint #06-0403

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 October 12, 2006. The hearing addressed the record of the complaint filed on May 1, 2006, and the probable cause determination filed by the New Britain Judicial District and the Judicial District of Hartford for Geographical Area 12 and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel on August 2, 2006, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.3, 1.4 and 1.16(d) 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 5, 2006. Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Jeffrey Donahue pursued the matter before this reviewing committee. The Complainant and the Respondent appeared at the hearing and testified. This reviewing committee also heard the testimony of James Bender, an investigator for the Office of the Chief Disciplinary Counsel. Six exhibits were admitted into evidence.

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

On January 10, 2002, the Complainant was injured in a slip-and-fall accident that occurred at a Citgo gas station (hereinafter “Citgo case”). The Complainant retained Attorney John Kennedy, Jr. on February 12, 2002 to represent him in the Citgo case. Thereafter, on Labor Day of 2003, the Complainant was involved in a motor vehicle accident. The day following the Labor Day accident, the Complainant discussed the accident with the Respondent while he was performing carpentry services at the Respondent’s house. The Respondent took pictures of the damage to the Complainant’s truck at that time. The Complainant also discussed the Citgo case pending with Attorney Kennedy, and asked the Respondent to represent him in both matters. The Respondent’s file contains handwritten notes made by the Respondent concerning both cases.

Following his meeting with the Complainant, the Respondent contacted Attorney Kennedy and obtained the Complainant’s file regarding the Citgo case. The Respondent filed suit on behalf of the Complainant in connection with the Citgo case on January 23, 2004. On December 13, 2004, a judgment of nonsuit was entered against the Complainant for failure to comply with discovery requests. The Respondent received notice of the motion for nonsuit but failed to take any action since he believed the case lacked merit. The Respondent, however, never advised the Complainant of his decision not to pursue the case or of the fact that the case had been dismissed. The Respondent also failed to take any action in connection with the motor vehicle accident case, never provided the Complainant with a written fee agreement regarding his representation of the Complainant in these two matters and failed to provide the Complainant with a copy of his files.

This reviewing committee also considered the following:

The Complainant testified that the Respondent agreed to represent him in connection with both the Citgo case and the motor vehicle accident case. The Complainant does not recall being provided a written fee agreement by the Respondent. The copy of the Respondent’s file submitted as an exhibit in this case did not contain any written fee agreements. The Complainant maintained that approximately six months ago he went to the Respondent’s house and requested copies of his files. The Respondent advised the Complainant that he was unable to locate the Complainant’s files because he had moved his office. The Complainant testified that the Respondent never asked him for money to hire a safety engineer to prove liability in the Citgo case.

The Respondent testified that he did discuss with the Complainant the need to hire a safety engineer and that the Complainant was unwilling to pay for this expense. The Respondent maintained that he was not willing to pay for a safety engineer since he did not believe that liability could be proven. In addition, the Department of Administrative Services had notified the Respondent of its lien on any settlement proceeds, which the Respondent believed would leave very little money for the Complainant. The Respondent testified that he, thereafter, decided not to pursue the case any further. The Respondent acknowledged that he never communicated to the Complainant his decision not to pursue the case. The Respondent acknowledged that the handwritten notes in his file regarding the Citgo case and the motor vehicle accident case were written by him. The Respondent maintained, however, that he does not recall discussing the accident case with the Complainant and that he never agreed to represent the Complainant in connection with that matter. The Respondent further maintained that the Complainant never requested a copy of his file.

This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in unethical conduct. We find that the Respondent undertook the representation of the Complainant in both the Citgo case and the motor vehicle accident case. The Respondent’s handwritten notes regarding the motor vehicle accident case undermine his contention that he never agreed to represent the Complainant in that matter. This reviewing committee concludes that the Respondent’s failure to undertake any action in connection with the motor vehicle accident case and his failure to advance the Citgo lawsuit constitute a lack of competence and a lack of diligence in violation of Rules 1.1 and 1.3, respectively, of the Rules of Professional Conduct. We further conclude that the Respondent violated Rule 1.4(a) and (b) of the Rules of Professional Conduct by failing to advise the Complainant of his decision not to pursue the Citgo case and allowing a judgment of nonsuit to enter against the Complainant. The record before this reviewing committee indicates that the Respondent terminated his representation of the Complainant in the Citgo case but failed to advise the Complainant, in writing or otherwise, of his termination and failed to provide the Complainant with a copy of his files, in violation of Rule 1.16(d) of the Rules of Professional Conduct.

This reviewing committee concludes that the Respondent’s violations of Rules 1.1, 1.3, 1.4(a) and (b), and 1.16(d) of the Rules of Professional Conduct constitute serious misconduct. Accordingly, we direct Disciplinary Counsel to file a presentment against the Respondent in the Superior Court for the imposition of whatever discipline the court may deem appropriate. Additionally, this reviewing committee concludes by clear and convincing evidence that the Respondent failed to provide the Complainant with written retainer agreements in violation of Rule 1.5(b) of the Rules of Professional Conduct. Accordingly, we further direct Disciplinary Counsel to include a violation of Rule 1.5(b) in the presentment complaint, since the presentment will be a trial de novo.

DECISION DATE: 12/13/06

Attorney Howard Gould

_____________________________

Attorney Jorene Couture

Mr. Peter Jenkins