STATEWIDE GRIEVANCE COMMITTEE

Alice M. Jain. Complainant, vs. Gerald H. Kahn, Respondent

Grievance Complaint #98-0412

DECISION

Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on August 10, 1999 and November 9, 1999. The hearings addressed the record of the complaint filed on November 18, 1998, and the probable cause determination rendered by a reviewing committee of the Statewide Grievance Committee on April 27, 1999, finding that there existed probable cause that the Respondent violated Rule 1.3 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 Area 6 Grievance Panel on February 19, 1999.

Notice of the August 10, 1999 hearing was mailed to the Complainant and to the Respondent on June 15, 1999. Notice of the November 9, 1999 hearing was mailed to the Complainant and to the Respondent on September 27, 1999. The Complainant appeared and testified at both hearings. The Complainant was represented by Attorney Francis R. Sablone, Jr. at the November 9, 1999 hearing. The Respondent appeared, represented by Attorney David P. Atkins, at both hearings and testified. Attorney Betty Levy and Attorney Philip A. Escoriaza testified as witnesses for the Respondent. Exhibits were admitted into evidence.

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

The Complainant retained the Respondent in September of 1997 to represent her in a dissolution of marriage. At that time, the Complainant and her two children had moved out of the marital home and moved into the basement of the Complainant’s parents’ home. The Complainant was pregnant with her third child and not working. Her financial situation was dire. The Complainant’s husband, a physician, earned approximately $300,000.00 per year at that time.

The Complainant’s husband was represented by Attorney Shirley Hoogstra of New Haven. After initial discussions with Attorney Hoogstra concerning temporary financial arrangements failed, the Respondent filed pendente lite motions (hereinafter "the motions") with the court in October of 1997 to obtain temporary child support and alimony payments for his client.

The motions first appeared on the short calendar on November 10, 1997. Attorney Hoogstra requested a postponement of the matter claiming her client would be fired if he missed time from work to attend the hearing. The Respondent agreed to the postponement and immediately reclaimed the motions. The motions next appeared for adjudication on November 24, 1997 but were not heard. The Respondent reclaimed the motions on November 25, 1997, then again on December 18, 1997 and December 29, 1997.

The motions next appeared on the short calendar on January 5, 1998 but were postponed, again, at Attorney Hoogstra’s request. The motions were reclaimed on January 7, then again on January 13 and January 19. The motions appeared on the short calendar on January 26, February 1, February 9, February 17 and March 9. Each time the motions were postponed and needed to be reclaimed. The February 9 and February 17 hearings were postponed at Attorney Hoogstra’s request due to claimed unavailability. The motions appeared on the short calendar for April 6 and May 18 but did not go forward because the Respondent was involved in other hearings at other courthouses. On or around June 8, 1998 the Complainant hired a new attorney and terminated the Respondent. Thereafter, the entire case was resolved, including financial arrangements acceptable to the Complainant, by August of 1998.

We, Attorney Randy Cohen and Mr. Michael Goodman, conclude that there is clear and convincing evidence that the Respondent violated Rule 1.3 of the Rules of Professional Conduct. Nearly seven months elapsed between the filing of the motions and the Respondent’s termination yet no temporary financial arrangements were agreed to by the parties or ordered by the court. In fact, the motions were never heard by the court, which is unacceptable to us, in light of the dire circumstances in which the Complainant and her children found themselves. While we acknowledge the necessity of adverse attorneys accommodating each other’s schedule, we conclude that the Respondent unreasonably failed to have these motions addressed by the court during the time he represented the Complainant, in violation of Rule 1.3 of the Rules of Professional Conduct. Accordingly, the Respondent is reprimanded.

____________________________________
Attorney Randy L. Cohen

___________________________________
Mr. Michael Goodman

I, Attorney Alfred Belinkie, respectfully dissent from the decision of Attorney Randy L. Cohen and Mr. Michael Goodman. I am highly critical of the Respondent’s inability to have the motions heard by the court, but I do not believe that the conduct in question rises to the level of ethical misconduct. Accordingly, I would dismiss the complaint.

__________________________________
Attorney Alfred R. Belinkie