STATEWIDE GRIEVANCE COMMITTEE

New Haven Judicial District, G.A. 7 & 8 Grievance Panel, Complainant vs. Dennis H. Marlowe, Respondent

Grievance Complaint #98-1108A

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, 1061 Main Street, Bridgeport, Connecticut on December 14, 1999. The hearing addressed the record of the complaint filed on June 24, 1999, and the probable cause determination filed by the Middlesex Judicial District Grievance Panel on September 21, 1999, finding that there existed probable cause that the Respondent violated Rules 1.15(a) and 8.4(1) of the Rules of Professional Conduct and Practice Book §2-27.

Notice of the hearing was mailed to the Complainant and to the Respondent on November 2, 1999. The Complainant appeared at the hearing through its counsel, Attorney John H. Welch, Jr. The Respondent appeared and gave testimony at the hearing and was represented by Attorney Joseph Borkowski. Additionally, Attorney Donald F. Snow and Ms. Carolyn Rose testified at the hearing. Exhibits were received into evidence.

At the time this reviewing committee heard this matter, it also heard Grievance Complaint #98-1108B, New Haven Judicial District, G.A. 7 & 8 Grievance Panel v. Donald F. Snow.

This reviewing committee makes the following findings of fact by clear and convincing evidence:

From 1986 until December of 1997, the Respondent practiced with Attorney Donald F. Snow in Madison, Connecticut. In 1997, the firm was known as Marlowe, Snow and Atticks, P.C. (hereinafter "MSA"). In 1997, the professional relationship between the Respondent and Attorney Snow soured, and litigation ensued between the two. The Honorable Anthony DeMayo, originally assigned to hear a preliminary injunction application early in the proceedings, decided to supervise the litigation himself, which was ultimately resolved by a stipulated judgment in March of 1999. In December of 1997, Judge DeMayo ordered Attorney Snow to vacate the offices of MSA in December 1997, which he did later that month. Attorney Snow and two former members of MSA then formed the law firm of Snow, Atticks & Hollo, LLC (hereinafter"SAH") at a new office address in Madison.

At the time of the breakup of MSA, the reconciliation of its client trust account was the responsibility of Attorney Snow. The reconciliation was actually done by Attorney Snow’s legal assistant, Carolyn Rose, who left MSA to join Attorney Snow at SAH. Although Attorney Snow was responsible for the reconciliation of the account, the monthly statement went to the Respondent’s office even after Attorney Snow left to form SAH. The client trust account was not reconciled for several months at the end of 1997 due to Ms. Rose’s maternity leave.

When Ms. Rose returned to work in January of 1998, she immediately began the process of reconciling the previous months statements for the MSA trust account even though neither she nor Attorney Snow was affiliated with that firm. Attorney Snow had concluded that most, if not all, of the funds in the MSA trust account belonged to his clients. The Respondent believed that perhaps $1,000.00 of the funds belonged to his clients. Judge DeMayo’s December, 1997 order provided that the clients of each attorney, and the funds held in trust for those clients, would go with whichever attorney represented them. Accordingly, Ms. Rose reconciled the account so that SAH could transfer over certain funds from the MSA trust account to SAH. By February 13, 1998, Ms. Rose’s reconciliation showed that of the $41,071.44 balance in the MSA account, approximately $15,000.00 was for outstanding checks. Thereafter, on or around February 13, 1998, Attorney Snow transferred $25,144.92 from the MSA account to SAH. The amount left was sufficient to satisfy all outstanding checks which had been drawn on the account. Attorney Snow provided a copy of the reconciliation of the account and an explanation of the $25,144.92 transfer to the Respondent by letter on March 11, 1998. The letter warned the Respondent that "[t]he uncleared checks will be presented for payment on an ongoing basis and, if rejected because you have given instructions to the bank not to honor them, will trigger an automatic notification to the Statewide Grievance Committee."

Prior to his receipt of the March 11, 1998 letter, the Respondent, on or around March 5, 1998 received the February statement and noticed the $25,144.92 transfer. The Respondent then withdrew by cashier’s check, $15,963.00 from the MSA client trust account. The Respondent placed the cashier’s check in his desk drawer. At or around that time, the Respondent also changed the name on the trust account from "Marlowe, Snow & Atticks, P.C." to "Dennis H. Marlowe, Trustee, P.C." Thereafter, numerous checks were presented for payment against insufficient funds, triggering the bank’s notification requirement of the overdrafts to the Statewide Grievance Committee. At an April 15, 1998 status conference, Judge DeMayo ordered the Respondent to redeposit the cashier’s check into the account. The Respondent redeposited the funds on April 29, 1998. Thereafter, the outstanding checks were honored by the bank.

This reviewing committee also considered the following:

The Respondent testified that he withdrew the $15,963.00 in response to Attorney Snow’s transfer of $25,144.92 from the account. The Respondent testified that Attorney Snow’s transfer concerned him and the withdrawal was made to prevent further transfers from the account by Attorney Snow.

This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:

This reviewing committee concludes that the Respondent violated Rules 1.15(a) and 8.4(1) of the Rules of Professional Conduct and §2-27 of the Practice Book. The overdrafts on the subject client trust account were caused by the Respondent’s unauthorized withdrawal of $15,963.00 on March 5, 1998. Thereafter, the Respondent failed to replace the funds until April 29, 1998, nearly two months after their withdrawal and two weeks after Judge DeMayo’s order. As of March 11, 1998, when Attorney Snow provided the reconciliation and explanation for the $25,144.92, the Respondent should reasonably have known that his $15,963.00 withdrawal would jeopardize the payment of outstanding checks. This conduct violates Rules 1.15(a) and 8.4(1) of the Rules of Professional Conduct and §2-27 of the Practice Book.

Accordingly, the Respondent is reprimanded.

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Attorney Alfred R. Belinkie

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Attorney Randy L. Cohen

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Mr. Michael W. Goodman