STATEWIDE GRIEVANCE COMMITTEE

 

Ebenezer Caines, Complainant vs. Louis Avitabile, Respondent

 

Grievance Complaint #02-0185

 

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 March 13, 2003.  The hearing addressed the record of the complaint filed on August 21, 2002, and the probable cause determination filed by the Waterbury Judicial District Grievance Panel on November 22, 2002, finding that there existed probable cause that the Respondent violated Rules 1.3 and 7.5 of the Rules of Professional Conduct.

 

Notice of the hearing was mailed to the Complainant and to the Respondent on February 4, 2003. At the hearing, the Complainant and the Respondent appeared and testified.  Leslie Green appeared and testified on behalf of the Complainant. In accordance with a subpoena issued by this reviewing committee, Attorney Meryl Spat also appeared and testified at the hearing.

 

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

 

The Complainant retained the Respondent's law firm in or about October of 1996 to represent him in an employment related personal injury matter.  Attorney Allan B. Rubenstein had previously represented the Complainant.  At the request of the Complainant, Attorney Rubenstein forwarded the Complainant's file to the Respondent on January 22, 1997.  The Complainant signed a retainer agreement dated October 23, 1996 with the Law Firm of Louis S. Avitabile and Meryl Anne Spat.  The retainer agreement read, inter alia, that by signing the agreement the Complainant retained the Law Firm of Louis S. Avitabile and Meryl Anne Spat.  The retainer was signed by Attorney Spat. 

 

The Complainant telephoned the Respondent's office on a periodic basis and spoke with the Respondent.  During those conversations, the Complainant demanded to know when his lawsuit was going to trial.  At times the Respondent advised the Complainant that his matter was progressing.  On other occasions the Respondent advised the Complainant to telephone at some other time. The Respondent did not advise the Complainant that Attorney Spat left the firm in 1997. In July of 2002, the Complainant went to the Respondent's office to demand the return of his file.  For the first time, the Respondent advised the Complainant that he did not have the file and explained that Attorney Spat had left the office in April of 1997 and took the Complainant's file with her.  The Respondent subsequently advised the Complainant that upon further investigation he had found the Complainant's file in his office. 

 

On or about August 16, 2002, the Complainant went to the Respondent's office and was given the opportunity to look at his file.  When the Complainant requested to take the file, the Respondent's secretary advised him to return the following week for copies.  On or about August 23, 2002, the Complainant returned to the Respondent's office to retrieve his file.  At that time, the Complainant was given a portion of his file.  After the Complainant told the Respondent that he did not receive the entire file, the Respondent subsequently provided the Complainant with additional documents on or about August 26, 2002.

 

The Respondent was aware there were problems with the dissolution of the business relationship between himself and Attorney Spat and the division of clients between the two attorneys.  The Respondent also knew that there had been other instances of confusion as to which clients’ files were left with the Respondent and which files were taken by Attorney Spat. Notwithstanding his awareness of these problems, the Respondent did not go through his files to ascertain whether there were other clients’ files left at the firm of which the Respondent was unaware.

 

The Respondent's discipline history includes six prior reprimands and two instances where conditions were imposed as a result of the Respondent's professional misconduct.

 

This reviewing committee also considered the following:

 

Attorney Spat testified that when she left the Respondent's office in April of 1997, she took her clients' files, the majority of which were social security disability matters. Attorney Spat testified that she did not remember the Complainant and did not take the Complainant's file when she left the firm.  Attorney Spat further testified that she did not at any time represent the Complainant.

 

The Respondent testified that he did not represent the Complainant, though he conceded that he knew the Complainant and spoke with him on several occasions on the telephone and at his office.  The Respondent also testified that he and Attorney Spat were not partners. The Respondent explained that he and Attorney Spat shared office space for which he paid the rent, utilities and payroll.  The Respondent further explained that he and Attorney Spat had a fee-splitting agreement whereby the fees earned by each individual attorney were split evenly. 

 

There is insufficient evidence in the record to conclude by clear and convincing evidence that the Respondent's conduct violated Rule 1.3 of the Rules of Professional Conduct.  We are aware of the fact that five years passed between the Complainant’s retention of the Law Firm of Louis S. Avitabile and Meryl Anne Spat and the firing of the Respondent, however, it is not clear from the record before us which attorney dropped the ball in the Complainant’s matter.  It is troubling, however, that the Respondent failed to investigate the status of the Complainant's case, especially considering the Complainant’s repeated telephone calls and the Respondent's knowledge that there were problems in the manner in which the Respondent and Attorney Spat dissolved the firm.  We are highly critical of the manner in which the Respondent responded to the Complainant's inquiries and strongly suggest that the Respondent proactively search his clients' files to determine whether there are any other outstanding matters of which he is unaware. 

 

This reviewing committee further concludes that the Respondent's representations in his letterhead and retainer agreement stating "The Law Firm of Louis S. Avitabile and Meryl Anne Spat" implied a partnership between the two, when in fact none existed, in violation of Rule 7.5(d) of the Rules of Professional Conduct.  In deciding the appropriate discipline to impose upon the Respondent, this reviewing committee took into consideration the Respondent’s extensive grievance history that includes five (5) reprimands imposed by a reviewing committee of the Statewide Grievance Committee, one (1) reprimand imposed by the court (Wiese, J.), and two occasions when the Respondent was ordered to complete three (3) credit hours of a continuing legal education course in an unsuccessful effort to rehabilitate the Respondent’s misconduct. Accordingly, we order the Respondent presented to the Superior Court for whatever discipline the court deems necessary.  Because a presentment is a trial de novo, we further order that the presentment complaint contain an allegation that the Respondent violated Rule 1.5(e) of the Rules of Professional Conduct by engaging in a fee-splitting arrangement with Attorney Spat without the advice and consent of the Complainant.

 

_________________________________

Attorney Carl Fortuna

 

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Attorney Lorraine Eckert


 

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Ms. Johanna Kimball