STATEWIDE GRIEVANCE COMMITTEE
Lloyd H. Orr, Marsha Orr, Raj Orr, Complainants vs. Steven G. M. Biro, Respondent
Grievance Complaint #96-0967
Pursuant to Practice Book '27J, the undersigned, duly appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 235 Church Street, New Haven, Connecticut on January 7, 1998. The hearing addressed the record of the complaint filed on May 28, 1997, and the probable cause determination filed by the Stamford/Norwalk Judicial District Grievance Panel on July 18, 1997, finding that there existed probable cause that the Respondent violated Rules 1.3, 1.4, 1.8(h) and 8.3(a) of the Rules of Professional Conduct.
Notice of the hearing was mailed to the Complainants and to the Respondent on December 2, 1997. The Complainants appeared at the hearing, and the reviewing committee heard the testimony of Complainant Lloyd H. Orr. The Respondent also appeared at the hearing and testified before this reviewing committee. The Respondent was represented by Attorney David P. Atkins. Exhibits were admitted into evidence.
This reviewing committee finds the following facts by clear and convincing evidence:
On May 21, 1994, Complainants Raj Orr and Marsha Orr were injured in an automobile accident. On or about June 28, 1994, all three Complainants, including Lloyd H. Orr as the father and next friend of Raj Orr who was a minor at the time of the accident, retained the Respondent to represent them concerning injuries suffered in the automobile accident. The Respondent proceeded to engage in some initial investigation regarding the matter.
In or around June of 1995, the Respondent was also retained to represent Raj Orr in a criminal matter. The Respondent appeared with Raj Orr at a hearing on June 27, 1995. In accordance with a plea agreement, Raj Orr was given a suspended sentence, was placed on probation, and was also ordered to pay the victim's unreimbursed medical expenses. At the hearing, the court also entertained a request from the victim's attorney that the court order Raj Orr to pay counsel fees incurred by the victim's family in the amount of one thousand dollars ($1,000.00). The judge reserved a decision on the request, but indicated that he would be willing to order the payment provided that the victim elected not to bring a civil lawsuit against Raj Orr. In January of 1996, the victim filed a motion again requesting an order for payment of counsel fees. The Respondent left a message on the Complainants' telephone answering machine regarding the motion but did not speak to any of them directly. The motion was granted by the court in March of 1996, and Raj Orr was ordered to pay one thousand dollars ($1,000.00). The Respondent again left a message on the Complainants' answering machine informing them of the court's order. The Respondent did not receive a return telephone call. The required payment was not made and in June of 1996, a motion for contempt was filed by the victim. The Respondent left a message on the Complainants' answering machine regarding the motion and received no reply from any of the Complainants. Notwithstanding the fact that he was having difficulty reaching the Complainants by telephone, at no time did the Respondent follow up on his telephone messages by communicating in writing to the Complainants concerning the judge's order regarding restitution, or regarding the motion for contempt. It was not until some time in August of 1996 that the Respondent actually discussed the order and the motion with Lloyd H. Orr.
In October of 1996, the Respondent met with the Complainants. At the meeting he explained to the Complainants that he had failed to file suit in their personal injury matter before the expiration of the two year statute of limitations. At the meeting the Respondent offered to settle any potential claim of malpractice resulting from his failure to file suit in time, but advised the Complainants to seek the advice of independent counsel prior to accepting his offer of settlement.
This reviewing committee also considered the following:
The Respondent testified at the hearing before this reviewing committee that his failure to file suit prior to the expiration of the statute of limitations was occasioned by a scrivener's error in recording the date of the accident on his office's calendar. However, a review of the record of the complaint reveals that the Respondent received correspondence on several occasions from insurance companies reflecting the correct date of the accident, and inexplicably, the Respondent never noticed that this information contradicted the information in his calendar. The Respondent testified that he has since changed his system of recording significant dates in an attempt to prevent the same mistake in the future.
This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:
This reviewing committee finds by clear and convincing evidence that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct. While we agree with Respondent's counsel that not every mistake necessarily constitutes a breach of the Rules of Professional Conduct, on the facts of the instant matter we are unable to find that the Respondent acted with reasonable diligence in handling the Complainants' personal injury case. The Respondent was retained a little more than a month after the date of the accident, and was therefore responsible for the Complainants' personal injury matter for almost the entire two year limitations period. The Respondent had almost the entire two year limitations period within which to file suit, but failed to do so. Furthermore, while the Respondent testified that a scrivener's error in recording the date of the accident on his office's calendar was responsible for the missed statute of limitations, the record of this complaint indicates that on several occasions, the Respondent received correspondence from various insurance companies reflecting the correct date of the accident. It would appear that in the exercise of reasonable diligence, the Respondent would have noticed that the information reflected in this correspondence contradicted the date reflected in his office's calendar. While we find the Respondent's admission of his responsibility to the Complainants in this matter admirable, we are still obliged to examine the Respondent's conduct in handling the personal injury matter, and we find clear and convincing evidence that the Respondent failed to act with reasonable diligence in violation of Rule 1.3 of the Rules of Professional Conduct.
With respect to the criminal matter, we also find clear and convincing evidence that the Respondent failed to exercise reasonable diligence in communicating with his client regarding the order for restitution, in violation of Rule 1.3 of the Rules of Professional Conduct, failed to keep his client reasonably informed regarding the judge's order on the motion for contempt, and failed to explain these matters to the Complainants to the extent reasonably necessary to permit the Complainants to make informed decisions about the order or the contempt motion, in violation of Rule 1.4 of the Rules of Professional Conduct. During the course of the hearing on this matter, the Respondent testified that he often had difficulty contacting the Complainants directly by telephone. In his answer to the grievance complaint, the Respondent states, "It is true, however that it was difficult to communicate because Mr. Orr was difficult to reach and did not return his messages." With respect to the court's order of restitution and the subsequent motion for contempt, the Respondent testified that he left messages on the Complainants' answering machine. In spite of his difficulty in reaching the Complainants by telephone, however, the Respondent did not follow up by communicating in writing this important information regarding the court order and subsequent motion for contempt. The Respondent did not send the Complainants copies of either the court's order or the motion for contempt. It appears that the Complainants were confused about the status of the matter. We do not find the Respondent's efforts at communication were adequate, or that his obligation to his clients as an attorney to transmit this important information was met by simply leaving messages without making some effort to confirm that the information was received. Accordingly we find that his conduct in this regard violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.
We do not find clear and convincing evidence in the record that the Respondent acted unethically in discussing a settlement of the potential malpractice claim with the Complainants. The Respondent advised the Complainants to seek the advice of counsel before agreeing to the settlement offer, and no agreement was entered into. Therefore, we did not find that the Respondent violated Rules 1.8(h) or 8.3(a) of the Rules of Professional Conduct. However, as we have found clear and convincing evidence that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct, it is our recommendation that the Statewide Grievance Committee reprimand the Respondent. In addition, it is our recommendation that, pursuant to its authority under Section 27M.1 of the Practice Book, the Statewide Grievance Committee order the Respondent to attend a continuing legal education course in law office management within six months of the adoption of the proposed decision in this matter, provided it is so adopted by the Statewide Grievance Committee. It is also our recommendation, however, that in light of the Respondent's representations to this reviewing committee that he had enrolled in a law office management program scheduled for January of 1998, that this condition be satisfied upon the Respondent submitting evidence to the Statewide Grievance Committee of his attendance at said program within the time period set for completion of the continuing legal education requirement.
Mr. Marcus McCraven
Attorney Margaret P. Mason