Grievance Complaint #06-1139

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, 1061 Main Street, Bridgeport, Connecticut on June 6, 2007. The hearing addressed the record of the complaint filed on December 22, 2006 and the probable cause determination filed by the Hartford Judicial District Grievance Panel for Geographical Area 13 and the town of Hartford on March 16, 2007 finding that there existed probable cause that the Respondent violated Rules 8.2 and 8.4(4) of the Rules of Professional Conduct. The evidentiary hearing was consolidated with the hearing concerning a related Grievance Complaint, #07-0262, Hartford Judicial District Grievance Panel for Geographical Area 13 and the town of Hartford v. Mulshine.

Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on May 1, 2007. Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Frank P. Blando pursued the matter before this reviewing committee. The Respondent appeared at the hearing and testified.

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

The Respondent’s law firm represented the defendant in an uninsured motorist action before the Waterbury Superior Court. Jimenez v. Allstate Indemnity Company (UWY-CV04-4000981S). In a proceeding before Judge Elizabeth Gallagher on October 30, 2006, the court considered the plaintiff’s motion to preclude the defendant’s expert witness. Attorney Brian Flood, representing the plaintiff, and Attorney Scott Stewart from the Respondent’s office, representing the defendant, disagreed with regard to the circumstances of an August 8, 2006 status conference with Judge Agati relevant to the motion to preclude. The court sua sponte called Judge Agati to testify. The court heard testimony from Judge Agati concerning the August 8, 2006 status conference with Attorney Joseph Foti for the plaintiff and Attorney Scott Stewart for the defendant. Thereafter, the court granted the plaintiff’s motion to preclude the Respondent’s client’s expert witness.

On October 31, 2006, the Respondent appeared in a proceeding before Judge Gallagher in the Jimenez v. Allstate Indemnity Company matter. The Respondent made certain pretrial motions, including a motion to change venue. Judge Gallagher denied the Respondent’s motions and ordered the Respondent to start jury selection. The Respondent refused to commence jury selection. Judge Gallagher referred the Respondent to presiding Judge Agati in connection with his refusal to commence jury selection. In a proceeding before Judge Agati on the same day, the Respondent confirmed that he was refusing to start jury selection. After Judge Agati warned the Respondent of the possible consequences of his refusal to pick a jury, the Respondent indicated to the Court that he was still refusing to pick a jury. Thereafter, Judge Agati entered a default judgment against the Respondent’s client and referred the matter to the Statewide Grievance Committee due to the Respondent’s failure to follow the Court’s order to commence jury selection.

During the October 31, 2006 proceeding before Judge Gallagher, the Respondent stated “there’s every risk and possibility that there was ex parte communication between counsel and Judge Agati before the hearing….” Thereafter, during the proceeding before Judge Agati on the same day, the Respondent further stated “there’s always the risk of ex parte communications in scheduling testimony, if that were done. I don’t know if it was.”

This reviewing committee also considered the following:

The Complainant alleged that in the course of the October 31, 2006 proceedings the Respondent “raised the issue of a possible ex parte communication between Judge Agati and the plaintiff’s counsel, although he admitted that he did not know if one had in fact occurred.”

The Respondent denied that “his statements regarding the risk or possibility of ex parte communications were knowingly false or made with a reckless disregard as to their truth or falsity.” The Respondent testified that he expressed a concern that there could have been an ex parte communication but “at no time indicated that there was an ex parte communication.” The Respondent explained that his concern arose from: the history of his firm with the opposing firm in that they “appeared to have a little bit more of an in with this courthouse;” second hand information that the case flow coordinator was regularly having lunch with lawyers from the opposing firm; the fact that Judge Agati testified; and that opposing counsel had indicated that he expected Judge Agati to testify before Judge Gallagher called Judge Agati. The Respondent further explained that such circumstances created the appearance that “there was a plan on the part of the plaintiff’s attorneys to have Judge Agati to [sic] testify.” The Respondent contended that the refusal to pick a jury was the best action for his client at the time and “necessary in order to preserve our appellate rights.” The Respondent testified that he saw no benefit to his client in going forward with jury selection. The Respondent further testified that “[w]e did not believe that a fair trial could be had for Allstate in this case.”

This reviewing committee concludes that the Respondent engaged in unethical conduct in connection with his representation of the defendant in Jimenez v. Allstate Indemnity Company. The Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(4) of the Rules of Professional Conduct by failing to obey court orders to pick a jury. The Respondent’s deliberate refusal to comply with the court’s order demonstrates disrespect for the court’s orders and the judicial process.

The Respondent’s statements regarding the possibility of an ex parte communication did not rise to the level of an ethical violation, in this instance. The record lacks clear and convincing evidence that the Respondent’s statements regarding the risk or possibility of an ex parte communication were knowingly false or made with reckless disregard as to their truth or falsity in violation of Rule 8.2(a) of the Rules of Professional Conduct. The record reflects that the Respondent had some perceived factual basis for statements of his belief regarding the possibility of an ex parte communication. We note the Respondent’s testimony that he “at no time indicated that there was an ex parte communication.” Notwithstanding, we do not condone the Respondent’s statements and we are critical that the Respondent should be more circumspect with his comments regarding his perception of the court and the judicial process.

Since we conclude that the Respondent violated Rule 8.4(4) of the Rules of Professional Conduct and in consideration of the seriousness of the misconduct, we direct the Disciplinary Counsel to file a presentment against the Respondent in the Superior Court for the imposition of whatever discipline the court deems appropriate.

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Attorney Rita Steinberger

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Attorney Randy Cohen

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Mr. William Murphy