STATEWIDE GRIEVANCE COMMITTEE

Middlesex Judicial District Grievance Panel, Complainant vs. Mark R. Perkell, Respondent

Grievance Complaint #96-0014

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 January 9, 1997. The hearing addressed the record of the complaint filed on July 3, 1996, and the probable cause determination filed by the Tolland Judicial District Grievance Panel on September 30, 1996, finding that there existed probable cause that the Respondent violated Rule 8.4 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant and to the Respondent on December 9, 1996. The Complainant did not appear. The Respondent appeared, represented by Attorney Jeremiah Donovan. The reviewing committee also heard testimony from the Respondent and Donald Brodeur, the Complainant's accountant and Paul Chittenden, a client of the Respondent. Exhibits were received into evidence.

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

In May of 1990, the Respondent lived in the Deep River/Essex area of Connecticut. He became friends with Jonathan N. Googel and Christine Googel. The Respondent often walked in the morning with Jonathan Googel. During the time that he knew Mr. Googel, who was a co-founder of Colonial Realty Co., the Respondent was aware that Mr. Googel kept sizeable amounts of cash at his house. He was also aware that Mr. Googel gambled and lost sums as high as half a million dollars. In the spring, the Respondent had some financial difficulties of his own. Mr. Googel was doing well. By the fall of 1990, however, financial problems for Mr. Googel began to arise. Mr. Googel approached the Respondent and asked him to hold some of Mr. Googel's wife's money. The Respondent agreed. A bag with approximately a million dollars in cash was provided to him. The bulk of the money was put in a safe deposit box.

In the fall of 1990, the Respondent was pursuing his own financial investments. He was given permission by Mr. Googel to use some of the cash to cover the Respondent's own expenses. The Respondent testified that he believed only $60,000.00 to $70,000.00 was used. Mr. Googel, however, claimed that $100,000.00 to $150,000.00 was used by the Respondent. The Respondent stipulated in federal court that the amount was somewhere between $75,000.00 and $140,000.00. On or about September 1, 1990, the Respondent entered into a promissory note in favor of Christine Googel for $98,250.00. The Respondent directed the promissory note to Mrs. Googel because he believed the money he was in possession of belonged to Mrs.Googel. In September of 1990, Colonial Realty Co. was brought into bankruptcy court by its creditors. The Respondent acknowledged that he turned a blind eye to knowing about Mr. Googel's financial problems and avoided seeking knowledge about the monies that he held for Mr. Googel, or his wife. Sometime in early 1991, the Respondent returned most of the money to Mr. Googel. The Respondent contended that he had no intent to assist Mr. Googel in defrauding creditors or the bankruptcy court. He contended that he had been naive and stupid in his dealings with Mr. Googel. He testified that he believed Mr. Googel and his lawyers were going to resolve the disputes that Colonial Realty found itself in. The Respondent indicated he chose to listen to Mr. Googel and believed that there were no serious problems.

On April 29, 1996, the Respondent pleaded guilty to willful failure to file a tax return, in violation of Title 26, United States Code, Section 7203. The charge was a misdemeanor. The Respondent was sentenced to six months of home confinement and three years of probation. He was also fined and ordered to do community service. The Respondent is presently working in Vermont. The Respondent presented to this reviewing committee testimony from his accountant Donald Brodeur. Mr. Brodeur testified that the Respondent's failure to file a tax return in 1991 was due to a series of factors, and not directly related to any intent by the Respondent to hide the money from Mr. Googel. The accountant indicated that the failure of the real estate market caused the Respondent substantial financial difficulties. Certain K-1 forms for the tax returns were not timely produced. The accountant indicated that the taxes have now been paid. The Respondent's involvement with the internal revenue service has been resolved.

This reviewing committee concludes that the Respondent's conviction for the willful failure to file a tax return clearly supports a finding of a violation of Rule 8.4(b) and (c) of the Rules of Professional Conduct. There is clear and convincing evidence in the record that the Respondent knew, or should have known, that the money he obtained from Mr. Googel was not being handled in an appropriate manner. We do not, however, find sufficient support in the record to conclude that the Respondent knowingly aided Mr. Googel to defraud bankruptcy creditors. Therefore, we conclude that a presentment is not warranted. We recommend that the Statewide Grievance Committee reprimand the Respondent.

Attorney Kerry A. Tarpey

Attorney Anne R. Hoyt

Ms. Carol E. Johnson-Springmeyer