STATEWIDE GRIEVANCE COMMITTEE
Daniel B. Horwitch, Statewide Bar Counsel, Complainant vs. Izzo & McLaughlin, LLC, Respondent
Grievance Complaint #01-0465
Daniel B. Horwitch, Statewide Bar Counsel, Complainant vs. Robert Izzo, Respondent
Grievance Complaint #01-0465A
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 May 9, 2002. The hearing addressed the record of complaint #01-0465, Horwitch v. Izzo & McLaughlin, LLC, filed on November 29, 2001, and the probable cause determination filed by the New Britain Judicial District, and Judicial District of Hartford for Geographical Area 12 and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford Grievance Panel on January 22, 2002, finding that there existed probable cause that Respondent Izzo & McLaughlin, LLC (hereinafter “Respondent firm”) violated Rules 1.3, 1.15 and 8.4 of the Rules of Professional Conduct and Practice Book §§2-27 and 2-32(a)(1).
Notice of the hearing was mailed to the Complainant and to the Respondent firm on March 27, 2001. The hearing notice sent to the Respondent firm was returned by the post office and received by the Office of the Statewide Bar Counsel on July 22, 2002. The return indicated that the post office box had been closed and that the post office was unable to forward the notice. The hearing notice was also mailed to Respondent Izzo at his home address and a subpoena duces tecum was duly served on Respondent Izzo on April 30, 2002. Despite being duly served with the subpoena, Respondent Izzo failed to appear at the hearing or produce any documents. An exhibit, submitted by our Assistant Bar Counsel, was received into evidence at the hearing and marked as Committee’s Exhibit #1. This reviewing committee considered the matter based upon the written record.
This reviewing committee finds the following facts by clear and convincing evidence:
On October 17, 2001, check number 3066 was presented for payment against insufficient funds in the Respondent firm’s clients’ funds account (#8915500) held at Webster Bank. The check, in the amount of $20,657, was returned unpaid.
By letter dated October 19, 2001, Webster Bank reported the overdraft to the Statewide Grievance Committee. Thereafter, by letter dated October 23, 2001, the Complainant, Statewide Bar Counsel, requested that the Respondent firm provide a written explanation of the overdraft, along with documentary evidence within ten days of the date of the letter. Receiving no response, the Complainant forwarded a second and final notice of the overdraft to the Respondent firm on November 2, 2001, again requesting a written explanation of the overdraft as well as documentary evidence within ten days of the date of the letter. The Respondent firm failed to respond to the second and final notice.
On November 29, 2001, the Complainant filed the instant grievance complaint against the Respondent firm pursuant to Rule 9(b)(2) of the Statewide Grievance Committee Rules of Procedure. The Respondent firm failed to respond to the grievance complaint, resulting in a finding of probable cause. A subpoena duces tecum was served on Respondent Izzo commanding him to appear at the May 9, 2002 hearing and to produce the following documents:
All bank statements, deposit slips and ledger sheets regarding Izzo and McLaughlin, LLC’s clients’ fund account (#8915500) for the period of October, 2001 to December, 2001, the underlying file(s) which is associated with this overdraft and any other documentary evidence relevant to the cause of the overdraft.
At the hearing before this reviewing committee, our Assistant Bar Counsel admitted into evidence bank statements from the Respondent firm’s clients’ funds account with Webster Bank for the period of September 1, 2001 to December 31, 2001. The bank statements were produced by Webster Bank pursuant to a subpoena served in connection with an interim suspension proceeding against Respondent Izzo (Statewide Grievance Committee v. Izzo, CV01-0512113).
This reviewing committee also considered the following:
Attorney Patrick P. McLaughlin of the Respondent firm also failed to respond to the overdraft notices and the grievance complaint, and failed to appear at the hearing before this reviewing committee. We took judicial notice, however, of Attorney McLaughlin’s testimony presented at a hearing held on December 6, 2001 in connection with Grievance Complaint #00-0955, Horwitch v. McLaughlin. At that hearing, Attorney McLaughlin testified that his association with Respondent Izzo in the law firm of Izzo & McLaughlin, LLC ended in November of 1999. Attorney McLaughlin further testified that since November of 2000 he has been employed by the Office of the Chief Public Defender. We note that the overdraft, which is the subject of this grievance complaint, occurred on October 17, 2001, approximately two years following Attorney McLaughlin’s departure from the Respondent firm.
This reviewing committee also took judicial notice of the decision issued by this reviewing committee in Grievance Complaint #01-0397, Mala v. Izzo. That decision reflects that the $20,657 check which is the subject of the instant grievance complaint was issued to Michael Mala for proceeds due to Mr. Mala in connection with a real estate closing in which Respondent Izzo represented Mr. Mala.
This reviewing committee concludes that the record supports a finding of ethical misconduct. We first note that this grievance complaint names the law firm of Izzo & McLaughlin, LLC as the Respondent. Our investigation of this matter, however, leads us to conclude that Respondent Izzo was the attorney responsible for the maintenance of the Respondent firm’s clients’ trust account at the time of the overdraft. The record is clear that Attorney McLaughlin was no longer associated with the Respondent firm at the time of the overdraft. Accordingly, we find by clear and convincing evidence that Respondent Izzo violated the following Rules of Professional Conduct and the Practice Book:
Respondent Izzo violated Rule 1.15(a) and (b) of the Rules of Professional Conduct and Practice Book §2-27(a) by failing to safeguard clients’ funds. The record indicates that Respondent Izzo received funds on behalf of Mr. Mala in a real estate transaction and failed to safeguard those funds. The $20,657 check issued to Mr. Mala was returned due to insufficient funds, evidencing the failure of Respondent Izzo to safeguard these proceeds pending delivery to Mr. Mala. We further conclude that Respondent Izzo’s failure to safeguard these funds constitutes conduct involving dishonesty, fraud, deceit and misrepresentation, in violation of Rule 8.4(3) of the Rules of Professional Conduct.
Respondent Izzo’s failure to answer the grievance complaint was without good cause, in violation of Practice Book §2-32(a)(1), given that Respondent Izzo provided no evidence to this reviewing committee for failing to respond to the grievance complaint. We cannot conclude, however, that Respondent Izzo’s conduct violated Rule 1.3 of the Rules of Professional Conduct.
Accordingly, since this reviewing committee concludes that Respondent Izzo violated Rules 1.15(a) and (b) and 8.4(3) of the Rules of Professional Conduct and Practice Book §§2-27(a) and 2-32(a)(1), we order that the Respondent be presented to the Superior Court for the imposition of whatever discipline the court may deem appropriate. Additionally, this reviewing committee concludes by clear and convincing evidence that Respondent Izzo violated Rule 8.1(2) of the Rules of Professional Conduct by failing to appear at the hearing before this reviewing committee after being duly served with a subpoena and by failing to respond to the Complainant’s requests for an explanation of the overdraft. Accordingly, we further order that the presentment complaint include a violation of Rule 8.1(2) since the presentment will be a trial de novo.
Lastly, we order that the complaint against the Respondent law firm, Grievance Complaint #01-0465, be administratively closed and that Grievance Complaint #01-0465A be opened against Respondent Izzo to reflect the discipline issued to Respondent Izzo by this reviewing committee.
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Attorney Anne R. Hoyt
Attorney Vincent M. DeAngelo
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Ms. Johanna Kimball