STATEWIDE GRIEVANCE COMMITTEE

Hartford Judicial District, Geographical Areas 13 & 14 Grievance Panel, Complainant vs. Nitor Egbarin, Respondent 

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, One Court Street, Middletown, Connecticut on December 14, 2000. The hearing addressed the record of the complaint filed on April 3, 2000, and the probable cause determination filed by the Hartford Judicial District, Geographical Areas 12 & 16 Grievance Panel on September 8, 2000, finding that there existed probable cause that the Respondent violated Rules 1.15 and 8.4 of the Rules of Professional Conduct and Practice Book §27A (revised §2-27).

Notice of the hearing was mailed to the Complainant and to the Respondent on October 26, 2000. Attorney John Quinn, Grievance Panel Counsel, appeared on behalf of the Complainant and was heard by this reviewing committee. The Respondent appeared and gave testimony. An exhibit was received into evidence.

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

On June 25, 1999, the Respondent was suspended from the practice of law for a period of five years. On October 18, 1999, a check in the amount of $500.00 that the Respondent had previously deposited into his clients’ funds account was returned due to insufficient funds. The bank notified the Respondent of this fact on October 18, 1999. Thereafter, on October 25, 1999, check number 1881 in the amount of $703.00 was presented for payment on the Respondent’s clients’ funds account. On October 26, 1999, the bank returned the check due to insufficient funds and notified the Statewide Grievance Committee of the overdraft. Thereafter, on November 1, 1999, this same check was presented for payment a second time. On November 2, 1999, the bank returned the check due to insufficient funds and notified the Statewide Grievance Committee of the overdraft.

This reviewing committee also considered the following evidence:

The Respondent maintained that the bank charged his account a fee without notice or authorization. The Respondent contended that this bank charge caused the overdraft. The Respondent advised the reviewing committee that check number 1881 was written to a transcription service for payment of a transcript. The Respondent testified that he eventually paid the fee for the transcript from his own funds.

The Respondent testified that although he was suspended on June 25, 1999, he continued to practice law until October of 1999 because he was advised by his counsel that the court’s suspension order was stayed pending the appeal filed by the Respondent. The Respondent testified that in October of 1999, the Statewide Grievance Committee filed a motion for contempt against the Respondent for practicing law while under suspension. The court ruled that since stays of suspension orders are not automatic, and since the Respondent did not apply for a stay, the Respondent could not practice law pending the appeal. The court appointed a trustee and the Respondent thereafter, stopped practicing law.

This reviewing committee concludes that the Respondent failed to safekeep funds in his clients’ funds account. The record indicates that the Respondent issued a check for $703.00 on his clients’ funds account in payment of costs incurred by a client. The fact that the check was returned on two occasions due to insufficient funds, leads this reviewing committee to conclude that the Respondent used the funds that should have been available to pay this client’s costs for an unauthorized purpose. The Respondent’s explanation that the overdraft occurred due to the bank charging the account a fee without his authorization or knowledge is not persuasive. The record indicates that the bank did not charge the Respondent’s clients’ funds account a fee. Rather, a check deposited by the Respondent into the account was returned due to insufficient funds. The Respondent was notified of this fact on October 18, 1999, and had the Respondent been keeping accurate records as required by Practice Book §2-27 and Rule 1.15 of the Rules of Professional Conduct, he would have been aware that there were insufficient funds in the account to cover the $703.00 check issued to the transcription service. Furthermore, the Respondent failed to take any steps to cure the overdrafts between October 19, 1999 and November 2, 1999, when the check was presented for payment a second time. Despite the Respondent’s failure to cure the overdraft, we are of the opinion that the return of the $500.00 deposit was not the cause of the overdraft, since $703.00 should have been in the account to cover this client’s costs.

This reviewing committee concludes that the Respondent’s failure to keep accurate records of his clients’ funds account and his failure to safeguard the funds held in his clients’ funds account constitutes a violation of Practice Book §2-27(a) and (b) and Rules 1.15(a) and (b) and 8.4(3) of the Rules of Professional Conduct. This reviewing committee finds that the Respondent’s ethical violations are serious and warrant the imposition of discipline. Accordingly, we order that the Respondent be presented to the Superior Court for the imposition of whatever discipline the court deems appropriate.

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Attorney Kerry A. Tarpey

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Attorney Lorraine D. Eckert

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Ms. Mary Ellen Smith