STATEWIDE GRIEVANCE COMMITTEE

Roberta G. Willenkin, Complainant vs. Peter A. Metz, Respondent

Grievance Complaint #97-1028

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, 95 Washington Street, Hartford, Connecticut on February 4, 1999. The hearing addressed the record of the complaint filed on June 22, 1998, and the probable cause determination rendered by a reviewing committee of the Statewide Grievance Committee on November 23, 1998, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4(a) of the Rules of Professional Conduct. The reviewing committee's probable cause determination was contrary to the determination of no probable cause filed by the New Haven Judicial District, Geographical Areas 7 & 8 Grievance Panel on October 7, 1998.

Notice of the hearing was mailed to the Complainant and to the Respondent on December 9, 1998. The Complainant and the Respondent each appeared and gave testimony. This reviewing committee also heard testimony from Robert Willenkin, the Complainant's husband. Exhibits were received into evidence. Committee member Mary Ellen Smith was required to absent herself for a portion of the hearing and her absence was not waived by the Complainant. Accordingly, prior to the rendering of this decision, a transcript of the hearing was obtained and reviewed by Ms. Smith.

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

In or about March, 1997, the Complainant retained the Respondent to represent her in the purchase of real property in Madison, Connecticut. The Complainant had signed a purchase and sale agreement providing in part that the property was to include a right of way to a road providing access to the property. Shortly before the closing, the Respondent obtained a copy of the warranty deed to be conveyed in connection with the Complainant's purchase. The warranty deed did not provide for the right of way mentioned in the real estate contract.

At the closing on the property, there were discussions regarding the right of way. The Complainant was led to believe that the Respondent would obtain a quit claim deed subsequent to the closing conveying the right of way to the Complainant. In fact, the Respondent told the Complainant that he would obtain a quit claim deed conveying whatever right of way, if any, ran with the property but that there was not an absolute right of way. Repeated attempts by the Complainant, subsequent to the closing, to obtain the quit claim deed from the Respondent were unsuccessful.

Subsequent to the filing of the complaint, the Respondent provided the Complainant with the original warranty deed to the property, a title insurance policy, and a draft of the quit claim deed to be executed by the seller. As of the date of the hearing, the quit claim deed had not been executed by the seller and the title policy only insured whatever right of way had been conveyed to the Complainant at the closing.

This reviewing committee also took into consideration the following:

The Respondent acknowledged that he failed to act promptly in representing the Complainant's interests in connection with her purchase of property and addressing her concerns after the closing. The Respondent expressed the opinion that the inability of the seller to convey an absolute right of way did not have an adverse impact on the Complainant. The Complainant testified that the failure to obtain the right of way adversely affected her and her husband's ability to do construction work on their property. They alleged that the local property association blocked their access to the road to which they had contracted to purchase a right of way, thereby increasing the costs of their construction.

It is the opinion of this reviewing committee that the Respondent violated Rules 1.3 and 1.4(a) of the Rules of Professional Conduct. The Respondent failed to promptly address the Complainant's concerns regarding the right of way at the time of, and subsequent to, the closing of the real property. At the closing, the Respondent told the Complainant that he would obtain a quit claim deed and then failed to do so. Additionally, the Respondent failed to reasonably communicate with the Complainant the effect of the inability of the seller to convey the right of way which the Complainant had contracted to purchase in the real estate contract executed in March, 1997. Clearly, the inability of the seller to convey the right of way materially affected what the Complainant was purchasing and, at the very least, might have led the Respondent to recommend to the Complainant a reduction in the purchase price or other alternatives to merely accepting a deed that did not convey that for which the Complainant had contracted. In view of our finding that the Respondent engaged in misconduct, the Respondent is hereby reprimanded and ordered to complete a continuing legal education course in legal ethics within six months of the date of this decision.

Attorney David A. Curry

Attorney Frederick W. Krug

Ms. Mary Ellen Smith