STATEWIDE GRIEVANCE COMMITTEE

George W. Lupien, Angela M. Lupien, Complainant vs. Joseph S. Borkowski, Respondent

Grievance Complaint #96-0146

PROPOSED DECISION

Pursuant to Practice Book '27J, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 300 Grand Street, Waterbury, Connecticut on April 3, 1997. The hearing addressed the record of the complaint filed on August 12, 1996 and the probable cause determination filed by the Middlesex Judicial District Grievance Panel on November 4, 1996, finding that there existed probable cause that the Respondent violated Rules 1.7(b) and 1.8(a) of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainants and to the Respondent on February 25, 1997. The Complainants and the Respondent appeared and gave testimony.

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

On December 31, 1987, the Respondent represented the Complainants in their sale of certain real property. On January 4, 1988, the Respondent approached the Complainants and requested a loan of $50,000.00. The Complainants did not execute a written statement specifically consenting to entering into a business transaction with the Respondent. The Respondent drafted a promissory note which he executed together with a conditional assignment of assets which partially secured the loan by the Respondent's interest in his firm's profit sharing plan and pension plan. In or about August, 1990, the Respondent paid the Complainants $10,000.00 plus interest on the principal of the loan and asked the Complainants to continue the note for the remaining $40,000.00 at a lower rate of interest. Once again, the Respondent prepared a note to evidence the loan and executed it. Once again, the Complainants did not sign a specific document consenting to entering into a business transaction with their attorney. The note prepared by the Respondent in or about August, 1990 called for the note to be paid on demand. Unlike the first note, however, the second note was not secured by a conditional assignment of assets including the Respondent's profit sharing and pension benefits.

In or about June, 1996, the Complainants demanded payment on the note. The Respondent, claiming an inability to pay, did not honor the Complainants' demand.

This reviewing committee also considered the following:

The Complainants and the Respondent each acknowledged a long standing attorney-client relationship. The Respondent testified that he had also developed a separate, personal relationship with the Complainants and that the loan obtained from the Complainants was obtained, not as their attorney, but as a personal business transaction. The Complainants testified their belief that the Respondent was continuing to look after their best interests as their lawyer and did not view the transaction as a purely personal one separate and apart from their attorney-client relationship.

It is the opinion of this reviewing committee that there exists clear and convincing evidence that the Respondent violated Rules 1.7(b) and 1.8(a) of the Rules of Professional Conduct. Four days after representing the Complainants in their sale of a parcel of real property, the Respondent approached the Complainants and requested a loan of a sizeable amount of money. Had the Respondent not represented the Complainants in their real estate transaction, it is not likely that he would have been aware that they might be in a position to loan him money. The Respondent prepared all the documents in connection with the loan and did so using his knowledge as an attorney. The Respondent had represented the Complainants in many transactions over a number of years. The Complainants reasonably looked to the Respondent to protect their interests in loaning him money. The Respondent failed to obtain the consent of the Complainants to the transactions in writing. It is our recommendation that the Respondent be reprimanded by the Statewide Grievance Committee.

Attorney M. Katherine Webster-O'Keefe

Mr. Carmen Donnarumma