STATEWIDE GRIEVANCE COMMITTEE

Walter Douglas Atwood, Complainant  vs. John Boyd Thacher, Respondent

 Grievance Complaint #01-0486

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 April 11, 2002.  The hearing addressed the record of the complaint filed on December 5, 2001, and the probable cause determination filed by the Windham Judicial District Grievance Panel on January 29, 2002, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.2, 1.4, 1.16 and 8.4(1) of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on March 5, 2002.  At the hearing, the Complainant did not appear.  The Respondent appeared before this reviewing committee and testified.

The Respondent was advised that Attorney Lorraine Eckert would not be present for the hearing.  The Respondent waived the participation of Attorney Eckert.  Accordingly, this decision was rendered by the undersigned.

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

The Respondent was appointed by the court to represent the Complainant in or about February, 2001.  The State of Connecticut was attempting to terminate the Complainant's parental rights regarding his minor daughter.  At the time of the State's petition, the Complainant was incarcerated out of the State of Connecticut. Because the Complainant was incarcerated out of state, with the Complainant's permission, the Complaint's wife acted as his advocate in discussions with the Respondent and communications with the court.

The last communication the Complainant or his wife had with the Respondent was in or about June, 2001. Over the Summer of 2001, the Complainant  and his wife made numerous attempts to contact the Respondent by fax, letter and telephone.  In September, 2001 the Complainant received notice from the court of several court dates, including a November 8, 2001 pre-trial date and a December 17, 2001 trial date.  Also in September 2001, the mother of the Complainant’s daughter passed away.

After receiving the notice of the forthcoming court dates, the Complainant and his wife faxed and telephoned the Respondent repeatedly in order to obtain some type of information regarding the matter.  The Respondent did not respond to any of these requests for information. The Respondent did not communicate with the Complainant concerning any aspect of the Complainant’s matter at any time after June, 2001.  On October 16, 2001, the Complainant made a request directly to the court to have a new attorney appointed to his case.  New counsel was appointed in or about October, 2001.

The Respondent did not answer the grievance complaint.

This reviewing committee also considered the following:

The Respondent testified that he went to court in September, 2001 on behalf of the Complainant.  At that time he advised the court of his intention to retire from the practice of law. The Respondent testified that he submitted all his clients’ files to the court, including the Complainant’s file.  The Respondent also testified that he requested that the court appoint new counsel for the Complainant and requested that the dates scheduled for trial be continued so the Complainant’s new counsel could familiarize him or herself with the Complainant’s file.  Against the Respondent’s wishes, the court refused to continue the trial date.  The Respondent formally retired from the practice of law in Connecticut in or about October, 2001.  The Respondent did not send termination of representation letters to his clients.

The Respondent conceded that the last time he spoke with the Complainant or his wife was in June, 2001.  He testified that he could not return or receive telephone calls after September, 2001 because his telephone service was suspended due to non-payment.  The Respondent further testified that there was no information to report to the Complainant during this period to time because the Department of Children and Families’ position was firm in that they fully intended to proceed with the termination of parental rights petition against the Complainant.  The Respondent explained that the Complainant was to be incarcerated for another two years, and the Department of Children and Families would not place the child with a non-relative, the Complainant’s wife, as an alternative.

The Respondent did not answer the grievance complaint because he believed a written response was optional.

This reviewing committee concludes that the Respondent’s conduct in connection with his representation of the Complainant violated the Rules of Professional Conduct.  There is ample evidence in the record that the Complainant and his wife made numerous attempts to contact the Respondent in order to find out the status of the Complainant’s file.  The duration and extent of the Respondent’s lack of communication with his client prior to his retirement was a clear violation of Rule 1.4 of the Rules of Professional Conduct.  By failing to notify the Complainant of his intention to retire, and by failing to turn over the file to the Complainant or new counsel, the Respondent violated Rule 1.16 of the Rules of Professional Conduct.  This reviewing committee also finds that the Respondent violated Rule 8.1(4) of the Rules of Professional Conduct by failing to respond to the grievance complaint.  The Rules requiring an attorney to respond to a request for information from the Statewide Grievance Committee are clear and unambiguous and the Respondent’s belief that the response was optional was unreasonable.  This reviewing committee cannot conclude by clear and convincing evidence that the Respondent violated Rules 1.1 or 1.2 of the Rules of Professional Conduct. 

Since this reviewing committee finds that the Respondent violated the Rules of Professional Conduct, we reprimand the Respondent.  In addition, we further order that prior to the Respondent being reinstated to the practice of law in Connecticut, that the Respondent attend a minimum of three (3) credit hours of a continuing legal education course in legal ethics at his own expense and provide the Statewide Grievance Committee with written confirmation of his compliance with this condition prior to submitting his notice of intent to revoke his retirement pursuant to Practice Book §2-55.

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Attorney Carl Fortuna

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Ms. Mary Ellen Smith