STATEWIDE GRIEVANCE COMMITTEE

James F. Wilson, Complainant vs. Eugene Citrano, Respondent

Grievance Complaint #95-0249

PROPOSED DECISION

Pursuant to Practice Book '27J, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 95 Washington Street, Hartford, Connecticut on June 13, 1996. The hearing addressed the record of the complaint filed on September 20, 1995 and the determination filed by the Fairfield Judicial District Grievance Panel on December 15, 1995, finding probable cause that the Respondent violated Rules 1.3 and 1.4(a) of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on April 29, 1996. Neither the Complainant nor the Respondent appeared at the hearing. The committee voted to render a decision based upon the evidence contained in the written record. The record contained submissions from the Complainant but no response from the Respondent.

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

The Complainant retained the Respondent to represent him in the purchase of a home. The closing went forward on January 6, 1995. At the closing, the Respondent advised the Complainant that he had incorrectly calculated the amount owed by the Complainant. The Complainant had brought a check to the closing for the amount originally calculated by the Respondent, which resulted in the Complainant overpaying by $69.00.

In April of 1995, the Complainant telephoned the Respondent regarding the overpayment and was advised that the Respondent had sent the Complainant's refund to his previous address. The Respondent advised the Complainant that he would immediately reissue a check and send it to the Complainant's current address. The Complainant sent letters to the Respondent on May 22, 1995 and July 10, 1995 requesting the status of the check. Thereafter, on August 7, 1995, the Complainant sent the Respondent a registered letter requesting the status of the check. The Complainant received a $49.00 check from the Respondent on August 10, 1995. The Respondent indicated on the bottom of a copy of the Complainant's July 10, 1995 letter to the Respondent that he had deducted $20.00 for the stop payment charge on the original check.

By letter dated August 11, 1995, the Complainant objected to the $20.00 charge and requested that the Respondent send him an additional $20.00. On August 14, 1995, the Respondent left a message on the Complainant's voice mail advising him that the Respondent would not reimburse the Complainant for the remaining $20.00 and that the Complainant could sue the Respondent. By letter dated August 14, 1995, the Complainant again requested that the Respondent reimburse him the remaining $20.00.

This reviewing committee finds by clear and convincing evidence that the Respondent failed to act with reasonable diligence and promptness in returning the refund to the Complainant in violation of Rule 1.3 of the Rules of Professional Conduct. The record indicates that the closing occurred on January 6, 1995 and that it took the Respondent over seven months to provide the Complainant with a partial refund. Although the Respondent attempted to send the Complainant the refund sometime before April of 1995, the record reflects that the Respondent sent the check to the home that was sold by the Complainant at the January, 1995 closing. Furthermore, once the Respondent was made aware of his error in April of 1995, it took him another four months and three letters from the Complainant requesting the status of the refund before the Respondent provided the Complainant with the funds. We are of the opinion that the Respondent's failure to promptly address this matter constitutes a violation of Rule 1.3 of the Rules of Professional Conduct and recommend that the Statewide Grievance Committee reprimand the Respondent.

This committee further concludes that it was inappropriate for the Respondent to charge the Complainant $20.00 for the stop payment charge on the original check that the Respondent sent to the Complainant's previous address. We are of the opinion that the Respondent should have known that the Complainant could not be living at the address that the check was sent to since the Respondent had conducted the closing for the Complainant and was well aware that the Complainant had sold that property. Accordingly, in addition to the reprimand, we recommend, pursuant to Practice Book '27M.1(a)(2), that the Statewide Grievance Committee order the Respondent to make restitution to the Complainant in the amount of $20.00 within thirty days from the date of the Statewide Grievance Committee's final decision in this matter.

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Attorney Kate Haakonsen

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Attorney Anne R. Hoyt

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Ms. Caroline Wakefield