STATEWIDE GRIEVANCE COMMITTEE
Diane Kozlowski, Complainants vs. Thomas C. Marshall, Respondent
Grievance Complaint #06-0654
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 December 14, 2006. The hearing addressed the record of the complaint filed on July 17, 2006, and the probable cause determination filed by the New Britain Judicial District and Hartford Judicial District for Geographical Area 12 and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel on September 22, 2006 finding that there existed probable cause that the Respondent violated Rules 1.1, 1.5, 1.9 and 1.16(a)(2) and (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 October 24, 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 finds the following facts by clear and convincing evidence:
Betsy Kozlowski and Anthony Wassil had a daughter named Rebecca. Ms. Kozlowski and Mr. Wassil’s relationship ended and Mr. Wassil retained custody of Rebecca. Ms. Kozlowski was obligated to pay child support. Ms. Kozlowski had a limited income and her mother, the Complainant, often paid the support obligation. In November of 2005, the Complainant contacted the Respondent and asked him to bring a modification of child support action on her daughter’s behalf. Thereafter, the Complainant paid the Respondent a $500 retainer and $70 for costs. The Respondent did not provide the Complainant or Ms. Kozlowski with a written fee agreement. On or about February 17, 2006, the Respondent advised Ms. Kozlowski that he had filed the motion for modification and had paid the associated court fee. On March 10, 2006, the Complainant paid the Respondent an additional $500.
On May 8, 2006, Ms. Kozlowski appeared in court at approximately 9:30 a.m. The Respondent did not appear until approximately 10:45 a.m. When the case was called, the judge had to pass on the matter because the Respondent had not prepared financial affidavits. The next time Ms. Kozlowski’s case was called, the court again had to pass on the matter because the Respondent had not prepared child support guidelines. When Ms. Kozlowski’s case was called a third time, the court again had to pass on the matter because the Respondent had not prepared the paperwork correctly. Finally, the court inquired as to whether the Respondent had served Mr. Wassil properly since the court file did not contain a marshal’s return showing proof of service. The Respondent was unable to determine if service was made because he had not taken Ms. Kozlowski’s file to court. Thereafter he asked Ms. Kozlowski to bring him to his office to retrieve it. There was not a marshal’s return in the file.
During its investigation of the instant grievance complaint the Office of the Chief Disciplinary Counsel requested that the Respondent produce Ms. Kozlowski’s file. The Respondent made numerous representations that he would turn over the file but failed to do so. At the hearing on this grievance complaint, this reviewing committee ordered the Respondent to turn over Ms. Kozlowski’s file by December 21, 2006. The Respondent did not comply. On January 9, 2007, Assistant Bar Counsel Frances Mickelson-Dera sent a certified letter to the Respondent requesting that he produce Ms. Kozlowski’s file. The letter was signed for by the Respondent on January 9, 2006. The Respondent did not send Ms. Kozlowski’s file.
Rule 1.1 of the Rules of Professional Conduct requires that a lawyer provide competent representation to a client. Competent representation denotes the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The requisite knowledge and skill required in this particular matter was minimal. The matter was not complex and was not particularly specialized. The requisite level of competence could have been achieved by the Respondent’s reasonable preparation. In the instant matter the Respondent was not prepared at all for the court hearing on May 8, 2006. The Respondent did not even have Ms. Kozlowski’s file with him in court. In addition, the Respondent failed to make certain that service of process was accomplished, as was required when filing a motion for modification. Further, the Respondent prepared the requisite forms hastily while appearing in court and he prepared them incorrectly. The Respondent failed to adhere to the standards of competent practitioners and, accordingly, this reviewing committee concludes by clear and convincing evidence that the Respondent acted incompetently and violated the Rule 1.1 of the Rules of Professional Conduct.
Rule 1.5(a) of the Rules of Professional Conduct requires that a lawyer charge a fee that is reasonable under the circumstances. In this instance the Respondent’s incompetence rendered his legal services useless. The Complainant paid the Respondent $1070 to represent her daughter. The fees paid were not earned since the Respondent failed to follow through on the motion for modification for which he was hired. Accordingly, the Respondent’s fees were unreasonable and were in violation of Rule 1.5(a) of the Rules of Professional Conduct.
Although there were representations made that the Respondent represented Betsy Kozlowski in her family court matter and had also represented the father of her child in legal matters in the past, The Office of the Chief Disciplinary Counsel did not offer any evidence to support this probable cause finding. Therefore, we can not conclude by clear and convincing evidence that the Respondent violated Rule 1.9 of the Rules of Professional Conduct.
Rule 1.16(a)(2) states that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. In this instance, absent any medical evidence, this reviewing committee can not conclude by clear and convincing evidence that any physical or mental condition impaired the Respondent’s ability to represent Ms. Kozlowski. As such, we can not conclude by clear and convincing evidence that the Respondent violated Rule 1.16(a)(2) of the Rules of Professional Conduct.
Upon termination of
representation, a lawyer shall surrender papers and property to which the
client is entitled and refund any fee that has not been earned. The Respondent
has failed to return Ms. Kozlowski’s file despite repeated requests by her, the
Office of the Chief Disciplinary Counsel and this reviewing committee.
Accordingly, this reviewing committee concludes that the Respondent violated
Rule 1.16(d) of the Rules of Professional Conduct.
The Respondent demonstrated serious misconduct in this instance. 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. Since this reviewing committee has ordered a presentment, and a presentment is a de novo proceeding, this reviewing committee orders the Office of the Chief Disciplinary Counsel to include the following allegations in its grievance complaint:
That the Respondent violated rule 1.5(b) by failing to have a written fee agreement with the Complainant or Ms. Kozlowski; and that the Respondent violated Rule 8.4(3) and (4) by making assertions he would return Ms. Kozlowski’s file and failing to produce Ms. Kozlowski’s file at the request of the Office of the Chief Disciplinary Counsel and this reviewing committee.
DECISION DATE: ___2/9/07___
Attorney Jorene Couture
Attorney Howard Gould
Mr. Peter M. Jenkins