STATEWIDE GRIEVANCE COMMITTEE

Joseph J. Feloney, Complainant vs. Paul Mpande Ngobeni, Respondent

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 October 2, 1997. The hearing addressed the record of the complaint filed on March 31, 1997, and the probable cause determination filed by the Hartford/New Britain Judicial District, Geographical Areas 12, 15, 16 and 17 Grievance Panel on June 12, 1997, finding that there existed probable cause that the Respondent violated Rules 1.15 and 8.4 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on August 27, 1997. The Complainant and Respondent appeared and testified before this reviewing committee. An exhibit was entered into evidence.

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

The Respondent represented a Ms. Linda Jones regarding her claim for damages resulting from an automobile accident occurring on August 4, 1994. In September, 1994, the Respondent wrote a letter to the Complainant, a physical therapist who had provided treatment to Ms. Jones. The letter requested a report regarding the Complainant's treatment, along with copies of his bills for services rendered. The letter stated, "Your fee for the preparation of these materials will be the responsibility of my office, and will receive my prompt attention. Kindly note that I hereby undertake to protect all outstanding accident related fees for medical services rendered to my client out of the proceeds of insurance or at the time of settlement pending litigation in this matter." The Complainant sent the Respondent copies of his notes and bills. In June of 1995, the Respondent again wrote to the Complainant, requesting a report and copies of bills. This letter contained the same language as the September 1994 letter regarding the payment of outstanding accident related fees out of the proceeds of insurance or at the time of settlement. The Complainant again sent the Respondent copies of his notes and his bill for services rendered. The Complainant's bill for services was five hundred dollars ($500.00).

Ms. Jones' personal injury case settled in August of 1996 for three thousand five hundred dollars ($3,500.00). The Respondent did not pay the Complainant's bill. There was no evidence presented indicating that the Respondent's client in any way disputed the Complainant's bill. In March of 1997, the Complainant sent the Respondent a letter demanding payment. The Respondent again failed to pay the Complainant.

At the hearing before this reviewing committee, the Respondent testified that he never received an itemized bill from the Complainant, in spite of requests for the same. The Respondent also insisted that the Complainant had in fact been paid after the complaint had been filed. The Respondent testified that he could produce a cancelled check evidencing payment to the Complainant. During the October 2, 1997, hearing this reviewing committee provided the Respondent with ten days to produce a copy of the cancelled check. This reviewing committee did not receive anything from the Respondent until November 7, 1997, when we received correspondence from the Respondent indicating that, in fact, he did not have a cancelled check. The Respondent advised that he has since paid the Complainant.

This reviewing committee finds by clear and convincing evidence that the Respondent violated the Rules of Professional Conduct. The Respondent failed to promptly notify the Complainant of his receipt of funds to which the Complainant was entitled pursuant to the Respondent's letters of protection. The Respondent's failure to notify the Complainant of his receipt of these funds, and his failure to promptly pay the Complainant in accordance with his letters of protection, violates Rule 1.15(b) of the Rules of Professional Conduct. In making these findings, we have assessed the credibility of the witnesses regarding the disputed fact as to whether or not the Complainant actually provided the Respondent with his notes and bills. In assessing the credibility of the Respondent, we have considered the Respondent's failure to provide this reviewing committee with accurate information regarding whether or not the Complainant had been paid. Accordingly, we do not find credible the Respondent's statements that the Complainant failed to provide him with the information requested in the Respondent's September, 1994 and June, 1995 letters of protection. Even assuming for the sake of argument that this information was not provided by the Complainant in 1994 or 1995, the Respondent certainly received the Complainant's March, 1997 letter demanding payment, and had adequate time and opportunity to pay the Complainant. The Respondent's failure to honor the September, 1994 and June, 1995 letters of protection constitutes a violation of Rule 8.4(c) of the Rules of Professional Conduct. It is our recommendation that the Statewide Grievance Committee reprimand the Respondent.

Attorney M. Katherine Webster-O'Keefe

Attorney Thomas Cloutier

Mr. Carmen Donnarumma