Opinion
HHBCV1860446494S
09-06-2018
OFFICE OF CHIEF DISCIPLINARY COUNSEL v. Jodi Zils GAGNE
UNPUBLISHED OPINION
OPINION
Dewey, J.
This matter came before the court pursuant to presentment of Attorney Jodi Zils Gagne, hereinafter Respondent, commenced by Attorney Stephen L. Magnan on August 3, 2017. The Respondent is an attorney duly admitted to the Bar of the State of Connecticut on June 7, 2002. The presentment, as supplemented by complaints from Webster Bank and the Office of Disciplinary Counsel for the State of Connecticut, contains six counts, each relating to a separate grievance alleging various violations of the Rules of Professional Conduct. On November 7, 2017, the Grievance Panel for the New Britain Judicial District and the Hartford Judicial District for Geographic Area 12 and the towns of Avon, Bloomfield, Canton, Farmington and West Hartford found probable cause that Respondent violated Rules 1.1, 1.3, 1.5, 1.7(a)(2), 8.4(3) and 8.4(4) of the Rules of Professional Conduct.
The Rules of Professional Conduct provide as follows:
On March 23, 2018, Disciplinary Counsel and Respondent executed a proposed disposition. As will be set forth below, Respondent admitted various violations of the Rules of Professional Conduct. The primary disagreement is Disciplinary Counsel’s contention that Respondent’s conduct also violated Rule 8.4(3). On July 5, 2018, this court conducted an evidentiary hearing. The bulk of evidence produced by Disciplinary Counsel consisted of documents. The parties also presented the court with a stipulation of facts. Respondent testified on her own behalf.
Findings of Fact
Based upon the evidence presented at the hearing before this court as well as the stipulation between the parties, this court finds the following facts:
The First Count alleges that the Respondent, while acting as conservator for the estate of Emil Jabs, charged her ward unreasonable and unnecessary fees, withheld funds belonging to her ward and, most importantly, engaged in a series of transactions that were self-serving rather than in the best interests of her ward. This court finds that Disciplinary Counsel provided clear and convincing evidence that the Respondent:
1. Charged a fee, $1,250, for unnecessary work on a special needs trust. Although the Probate Court disallowed the fee on February 14, 2017, Respondent never returned that money to her ward’s estate.
2. Executed a promissory note on January 6, 2016, in the amount of $110,000 between her ward and a company known as Bristol Beat. Respondent did not seek independent legal guidance, financial advice or Probate Court approval even though
a. Bristol Beat, a start-up local radio station, was owned by Respondent’s husband and paralegal, Steven Gagne. The company used Respondent’s office as a business address. Mr. Gagne worked directly on Emil Jabs’ conservatorship case.
b. Although she claimed she had no involvement with the company, Respondent supported Bristol Beat through her personal checking account.
c. Payment on the note would not begin until more than a year after Bristol Beat received the $110,000.
d. In addition to the $110,000 note, Respondent forwarded to her husband’s company an additional $3,000 that was not payable pursuant to the terms of the note.
e. The payment schedule ran for a period of ten years despite the fact Emil Jabs was nearly ninety (90) years old at the time Respondent executed the agreement. Given the length of the repayment period, Emil Jabs would never receive full benefit from the promissory note. The invested money would not be available for his residential and medical care during the last months of his life.
f. Under the terms of the agreement, interest did not accrue on the note until after the first payment, more than a year after Bristol Beat received the $110,000.
g. Bristol Beat was a limited liability company.
h. Bristol Beat had no assets.
i. The note was unsecured.
j. This unsecured loan was unreasonably risky insofar as Bristol Beat was a start-up company.
k. Bristol Beat made its first payment on the note in April 2017. It made four additional payments after July 2017. Those payments totaled approximately $5,000.
l. As a relatively inexperienced conservator, on occasion Respondent sought advice concerning other probate matters.
m. Respondent has no experience with this industry. She admitted before this court that she should have known that it was not a good investment.
n. After litigation initiated by the successor conservator for the Jabs estate, Attorney Steven Magnan, the estate, Respondent, Respondent’s insurer and Bristol Beat agreed that the Jabs estate would release all claims and that the Respondent, her insurer and Bristol Beat would pay the Jabs estate $108,000. Respondent’s malpractice insurer paid $60,000.
o. Respondent did not fully disclose the note in her reports to the Probate Court. Instead she listed the note under the generic term "investment."
3. Respondent sought Probate Court approval for the sale of Emil Jab’s real estate without disclosing that the buyer, Matthew Lemarre, was both her husband’s former employer and was married to her husband’s cousin.
4. The Probate Court removed Respondent as conservator of the Jabs estate on June 19, 2017. Nevertheless, on June 21, 2017, and July 3, 2017, Respondent requested payments from one of Mr. Jabs’ remaining investment accounts. Respondent did not advise the fund manager, Thomas Barnes, that she had been removed as conservator. Insofar as she was no longer conservator, Respondent had no justification for requesting those withdrawals.
5. Respondent paid herself $19,039.50 in fees for work ostensibly done as conservator for the Jabs estate. Throughout the conservatorship, Emil Jabs was a resident of a convalescent home and therefore needed minimal administrative assistance. The Probate Court approved only $8,535 of that amount, finding that the remainder was excessive. Although she had already collected the full amount billed Respondent never complied with the Probate Court order to return the disallowed balance to her ward’s estate.
6. Respondent changed her ward’s residence without first obtaining Probate Court approval. This court does not accept Respondent’s insistence that she filed an appropriate motion. This court rejects Respondent’s incredible testimony that her motion to change her ward’s residence was either "lost in the mail" or "thrown away once it reached the Probate Court." This court also concludes that Respondent should have been aware that she needed a court order before she could act on her motion.
Respondent admitted that her conduct involving the Bristol Beat loan violated Rule 8.4(4) of the Rules of Professional Conduct. She also admitted that the remaining transactions referenced above also violated Rule 1.5 of the Rules of Professional Conduct. Disciplinary Counsel asserted that Respondent also violated Rule 8.4(3). This court agrees with Disciplinary Counsel.
In reviewing the evidence and testimony presented in support of the Second, Third, Fourth and Fifth counts of the presentment this court finds that there is clear and convincing evidence Respondent, as conservator for a number of estates, allowed an estate checking account to lapse into a negative balance, transferred money between her wards’ accounts, erroneously deposited money in her wards’ accounts and withdrew money from her wards’ accounts. In particular the court finds
1. As result of Respondent’s actions, the account of her ward, Dennis Borovy, had a negative balance.
2. Respondent transferred money or erroneously deposited money in the following of her wards’ accounts:
a. On May 16, 2016 from the account of Dennis Borovy to the Jabs account. ($35.00)
b. On August 17, 2017, from the account of Aaron Myles Lane to the account of Viola Longo. ($86.38)
c. On October 3, 2016, from the account of Emil Jabs to the account of Desmond Deville. ($2,000.00)
d. On November 1, 2016, from the account of Desmond Devine to the account of Emil Jabs. ($2,000.00)
e. On September 7, 2016, from the account of Theresa Parylovich to the account of Sandra Mullin. ($1,197.00)
3. While acting as a conservator, Respondent transferred money between her personal account and that of various wards. The following transactions occurred:
a. On June 6, 2016, from the account of Dennis Borovy to Bristol Beat, a company owned and operated by her husband and paralegal. ($50.00)
b. On January 10, 2017, from the account of Desmond Deville to her account. ($80.00)
c. On September 15, 2016, from her account to that of her ward, Amber Kervin. ($70.00)
There is clear and convincing evidence that Respondent withdrew cash from different wards’ accounts. On October 3, 2016, she withdrew $1,197 from the account of Sandra Mullin. On May 5, 2016, she withdrew $50.00 from the account of Dennis Borovy. Respondent could not remember the reason for either withdrawal.
Respondent and Disciplinary Counsel agree the financial transactions outlined in Counts Two through Five violated Rule 1.15(b) of the Rules of Professional Conduct. Both parties also agree that the cash withdrawals violated Rule 1.15(k). This court finds that the financial transactions outlined in Counts Two through Five violated Rules 1.15(b), 1.15(k) 8.4(4) as well as Connecticut Practice Book Section 2.27.
Rules of Professional Conduct section 1.15 provides in relevant part:
Connecticut Practice Book Section 2-27 provides in relevant part:
With respect to Count Six of the presentment, this court finds clear and convincing evidence that
1. Respondent, as conservator for the estate of Emil Jabs, sold his property located in Bristol Connecticut.
a. Respondent had no experience selling real estate.
b. In Probate Court documents, Respondent initially valued the Jabs property at $120,000. After an appraisal done by an entity recommended by the buyer, Mr. Matthew Lemarre, Gagne’s former employer and a relative, the real estate value dropped significantly. Respondent did not seek an independent appraisal.
c. The property was sold for $47,996.42. The purchase price was less than the listing price.
d. Respondent and her husband received a finder’s fee in the amount of $6,043.00. The check for that amount was made out to Respondent and her husband.
e. The finder’s fee reflected profits made by the purchaser after he refurbished and sold the Jabs property. Respondent and her husband retained that fee. They benefitted from the profits made by Mr. Lemarre.
f. The finder’s fee was not included as part of the closing settlement statement. Respondent did not disclose this fee to her ward, her ward’s attorney or the Probate Court.
g. Respondent did not deposit that fee into the Jabs account.
2. Respondent also transferred the Emil Jabs’ residence without permission of the Probate Court and collected a refund check in the amount $6,353.25. The check was made payable to Respondent and her husband. It was endorsed by Respondent and deposited into her account. Rather than deposit the refund check into Emil Jabs’ account, Respondent retained the money. Although Respondent claimed that money was a retainer, she did not provide documentation of her charges until pressed by the Probate Court. The Probate Court disallowed the claimed offset.
3. Respondent, as conservator for the estate of Theresa Parylovich,
a. Sold her ward’s property located in Bristol Connecticut.
b. Respondent used the same appraiser as was employed for the Jabs property.
c. Respondent and her husband received a finder’s fee in the amount of $2,160.00. The check was made payable to Respondent and her husband.
d. The finder’s fee was deposited in Respondent’s personal account.
e. The finder’s fee reflected profits made by the purchaser after he refurbished and sold the Jabs property. Respondent and her husband retained that fee. They benefitted from the profits made by Mr. Lemarre.
f. The money received as a result of the property sale was not included as part of the closing statement. Respondent did not disclose this fee to her ward, her ward’s attorney or the Probate Court. Respondent did not deposit that fee into the Parylovich account.
Respondent admits the financial transactions outlined in Count Six violated Rules 1.15(b) and 8.4(4) of the Rules of Professional Conduct. Disciplinary Counsel asserted Respondent also violated Rule 8.4(4) of the Rules as well as Connecticut Practice Book Section 2.27. This court agrees with Disciplinary Counsel.
There is clear and convincing evidence that through all the transactions outlined in the presentment, Respondent failed to exhibit the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary for the protection of her wards’ financial well-being, Furthermore, she failed to exhibit the reasonable diligence and promptness necessary to confirm Probate Court approvals and/or filings. She also failed to exercise proper supervisory control over office staff, in particular her husband. Respondent admits these transgressions violated Rules 1.1, 5.3 and 8.4(4).
Rules of Prof. Conduct, Rule 1.1 Competence
Rule 5.3. Responsibilities Regarding Nonlawyer Assistance
This court further finds there is clear and convincing evidence of the following facts:
When filing accountings with the Probate Court, Respondent never volunteered the existence of the Bristol Beat loan. She hid the loan under the generic category "investments." When pressed by the Probate Court in December 2016 about her ward’s investments, Respondent eventually revealed the Bristol Beat investment but never mentioned her connection with the company. She misrepresented the company’s capital and distorted the security of that investment. She simply stated that the money "was invested with a local business under a promissory note, for which Mr. Jabs will be collecting a monthly payment beginning in January 2017."
When questioned in December 2016 by Mr. Jabs’ lawyer, Attorney Peter Boorman, Respondent again failed to specify the exact nature of the loan recipient. In a subsequent telephone conversation she simply stated that she knew the company owners. Only after repeated inquiries did Respondent provide the name of the company. After researching the company name, Attorney Boorman learned independently that the listed company owner, Steven Gagne, was Respondent’s husband and that Bristol Beat had the same address as that of her law office.
In her periodic accounting to the Probate Court, Respondent did not identify the Bristol Beat investments, thus removing that money from Probate Court oversight. When confronted by the Probate Court with specific facts concerning Bristol Beat, Respondent refused to acknowledge any impropriety. Respondent attempted to withdraw funds from Mr. Jabs’ investment account after she had been removed as conservator. This conduct violated Rules 8.4(3) and 8.4(4).
Discussion
A presentment "is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 483, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094 (1992). "Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." (Citations omitted; internal quotation marks omitted.) Disciplinary Counsel v. Serafinowicz, 160 Conn.App. 92, 98, 123 A.3d 1279, cert. denied, 319 Conn. 953, 125 A.3d 531 (2015).
The legal principles that govern attorney disciplinary proceedings are well established. "The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar ... The judiciary has the power to admit attorneys to practice and to disbar them ... to fix the qualifications of those to be admitted ... and to define what constitutes the practice of law ..." (Citations omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 553-54, 663 A.2d 317 (1995). "[T]he applicable standard of proof for determining whether an attorney has violated the Rules of Professional Conduct is clear and convincing evidence." (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 215 Conn. 162, 171-72, 575 A.2d 210 (1990).
Rules 1.1 Competence Rule
1.3 Diligence
Based on the facts presented to this court, the court finds by clear and convincing evidence that Respondent has violated Rules 1.1 and 1.3 of the Rules of Professional Conduct in that she failed to familiarize herself with basic law necessary to act as a conservator, failed to use the skill necessary to represent her clients properly, failed to understand the requirements of a special needs trust and failed to act diligently and promptly in order to secure the Probate Court’s approval needed to move her ward, Emil Jabs, to a new residence. Filing incorrect and unnecessary motions with the Probate Court adversely impacted upon her wards’ estates. Furthermore, although Respondent testified that she had sent a request for a change of Mr. Emil’s residence to the Probate Court, the evidence before this court clearly establishes the contrary. Untimely accounting also contributed to this violation. Her failure to respond with reasonable diligence and promptness in probate matters constitutes a violation of Rules 1.1 and 1.3. See Statewide Grievance Committee v. Friedland, 222 Conn. 131, 137-38, 609 A.2d 645 (1992).
Rule 1.5 Fees
The parties stipulated and, based on the evidence presented at the hearing the court agrees, that Respondent violated Rule 1.5 of the Rules of Professional Conduct. Respondent charged Emil Jabs $1,250 for an unnecessary special needs trust. She also paid herself $19,035.50 from that ward’s account, the bulk of which the Probate Court disallowed. Courts of general jurisdiction must give preclusive effect to Probate Court decrees adjudicating the validity of an executor’s accounting of his performance of his duties to the estate. Gaynor v. Payne, 261 Conn. 585, 598, 804 A.2d 270 (2002). The Probate Court ordered Respondent to return the unauthorized amount. The defendant has neither complied with this order nor initiated legal proceedings to challenge its validity. See General Statutes § 52-570a.
Connecticut General Statutes 52-570a provides
Rule 1.15 Safekeeping Property
The parties stipulated and, based on the evidence presented at the hearing the court agrees, that Respondent violated Rule 1.15 of the Rules of Professional Conduct. Respondent allowed an estate checking account to lapse into a negative balance, failed to properly maintain separate accounts for each client, failed to separate clients’ accounts from her own accounts and withdrew cash from client accounts. Additionally, Respondent retained funds, a finder’s fee, from the sale of the Jabs and Parylovich properties and kept the refund received after Respondent changed Emil Jabs’ residence.
The commentary to Rule 1.15 provides that "[a] lawyer should hold property of others with the care required of a professional fiduciary." Based upon the evidence presented, this court finds that Respondent failed to exercise that care on multiple occasions. Without a doubt Respondent did not maintain the care required to safeguard her client’s accounts. The funds in clients’ accounts are in the form of a trust. Respondent’s actions constituted a breach of that trust. See Statewide Grievance Committee v. Ross, Superior Court, Judicial District of New Haven, Docket No. CV 95 0370261, WL 626293, (October 18, 1996, Barnett, J.). Given the multiple financial errors, there is clear and convincing evidence that Respondent violated the terms of that trust and, as a consequence, violated Rule 1.15.
The parties have stipulated, and the court concurs, Respondent engaged in a separate type of transgression. In violation of Rule 1.15k, Respondent withdrew cash from client accounts. This conduct is more egregious than the accounting irregularities just mentioned. There is no reason for the withdrawals; Respondent cannot recall why she withdrew the cash. Regardless of the motive, this type of activity is prohibited.
Rule 5.3. Responsibilities Regarding Nonlawyer Assistance
The parties stipulated, and based on the evidence presented at the hearing, the court finds clear and convincing evidence Respondent violated 5.3 of the Rules of Professional Conduct. She and her office paralegal failed to carefully access and monitor client accounts. They failed to exercise care when reconciling those accounts. She should have exercised the reasonable diligence and supervisory control needed to insure accurate record keeping.
Rule 8.4 Conduct
The parties stipulated, and based on the evidence presented at the hearing, the court finds clear and convincing evidence Respondent violated 8.4(4) of the Rules of Professional Conduct. Respondent argues that none of the transgressions violated Rule 8.4(3). This court again disagrees.
Turning to Rule 8.4(4), the fiduciary relationship between an attorney and a client requires absolute perfect candor, openness and honesty, and the absence of any concealment or deception. See Cohen v. Statewide Grievance Committee, Superior Court, Judicial District of Hartford, Docket Number HHDCV165041424, WL 5015304 (September 7, 2017, Robaina, J.). The purpose of a conservatorship is to protect a ward’s assets. Negligence, inattention or inexperience is inexcusable. Misappropriation of conservatorship funds constitutes the very essence of conduct prejudicial to the administration of justice. When an attorney proves unreliable, the trustworthiness of every member of the Bar is susceptible to being called into question. Confidence in the legal profession erodes. See generally Attorney Grievance Commission v. Whitehead, 405 Md. 240, 260, 950 A.2d 798 (2008).
The violations of Rule 8.4(3) cause greater concern. Although this court does not minimize any of the transgressions, the most troubling allegations are those involving Respondent’s financial self-dealing. She over-billed probate estates and, despite court orders, has not complied with court orders that she return the excess funds. She was obligated to fully disclose to her wards, the probate court and her wards’ attorneys any transaction wherein she personally received a financial benefit while acting as a conservator for impaired court wards but failed to do so.
Respondent entered into real estate sales agreements for two of her wards wherein she and her husband received a financial incentive to manipulate the purchase price of the realty. There is a court order, but Respondent has not returned the money improperly received. Respondent retained a security check belonging to her ward. She attempted to withdraw money from a probate account after she had been removed as conservator.
Most significantly Respondent was more than minimally involved with Bristol Beat. She was married to the owner, a clear conflict of interest. At the time she entered into the loan agreement Respondent had no radio or investment experience. In light of the fact that many investments have significant risks and profits are not guaranteed, she could have or should have consulted with persons knowledgeable in the field of radio. She could have or should have consulted independent legal counsel.
The Bristol Beat loan was a completely one-sided deal where the ward, Emil Jabs assumed all the risks while Respondent and her husband were free to use the loan with neither oversight nor the possibility of financial jeopardy. Respondent received the benefit of phenomenally generous terms for Bristol Beat including no interest for the first year and an extended repayment provision, either one a clear conflict of interest. Respondent could have or should have notified the Probate Court of this significant investment and of the fact her husband was the primary beneficiary of this arrangement. She could have and should have provided security for the note. She could have and should have provided independent counsel and the Probate Court proof of the fact her husband was worthy of credit. No such actions were taken. This court must conclude that Respondent purposely withheld that information, knowing that the loan would never have been approved.
This transaction was neither fair nor reasonable. Standing alone, the Bristol Beat transaction warranted disciplinary action pursuant to Rule 8.4(3). See Statewide Grievance Committee v. Becher, CV010341997S, Superior Court, Judicial District of Ansonia-Milford, 2001 WL 746451 (June 6, 2001, Hiller, J.) (attorney borrowed money from his client but failed to repay the loan); Attorney Grievance Commission v. Mba-Jonas, 397 Md. 690, 700, 919 A.2d 669 (2005) (attorney used client funds for a purpose other for the sole benefit of the client). Financial investments that inure to the benefit of the attorney only are prohibited. See, e.g., Attorney Grievance Commission of Maryland v. Agbaje, 438 Md. 695, 93 A.3d 262 (2014) (attorney convinced client to enter into business transactions that benefitted the attorney financially) See also Disciplinary Counsel v. Nagorney, 131 Ohio St.3d 272, 963 N.E.2d 1303 (2012); Columbus Bar Association v. Kiesling, 125 Ohio St.3d 36, 925 N.E.2d 970 (2010).
Respondent’s suggestion that she wished to maximize Mr. Jabs’ assets is incredulous and irrelevant. Even if this were so, scienter is not required in disciplinary proceedings. Statewide Grievance Committee v. Presnick, 18 Conn.App. 316, 322, 559 A.2d 220 (1989), affirmed, 216 Conn. 127, 577 A.2d 1054 (1990) (the rule does not "require a finding of corrupt motive or bad faith"). See also Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 210, 804 A.2d 1027 (2002). Respondent intentionally took money out of the conservatorship, a clear violation of Rule 8.4(3). The suggested utilization does not alter the misappropriation, one achieved through deceit and misrepresentation. See Attorney Grievance Commission of Maryland v. Owrutsky, 322 Md. 334, 587 A.2d 511 (1991).
This court also finds that Respondent displayed a total lack of candor when questioned about the Bristol Beat transaction. She was given multiple opportunities to disclose the true nature of the loan, but chose instead to evade the inquiries. This lack of candor reflects her knowledge that the loan was inappropriate. She provided less than accurate financial reports. She hid transactions under the general category "investments." This lack of candor is evidence that Respondent was aware of the inappropriate nature of this and other transactions.
Candor and truthfulness are two of the most important moral character traits of a lawyer. Attorney Grievance Commission v. Myers, 333 Md. 440, 447, 635 A.2d 1315 (1994). The pattern of avoidance, delay and lack of total candor was both prejudicial to the administration of justice and evidence of deceit and misrepresentation.
Sanction
Having determined by clear and convincing evidence that Respondent violated multiple Rules of Professional Conduct, this court must determine an appropriate sanction.
Generally speaking an attorney’s misappropriation of entrusted funds is an act infected with deceit and dishonesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment. However, the presentment proceeding is neither a civil action nor a criminal proceeding. "[It] is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court." Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 483, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094 (1992). "If a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995).
Section 4.11 of the ABA Standards for Imposing Lawyer Sanctions (ABA Standards) indicates that disbarment "is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client."
The prohibition against punishment does not preclude sanctions. The court must consider a variety of factors, in particular retribution, deterrence and rehabilitation, before imposing any of the measures authorized by our rules of practice.
Here there were multiple offenses. Respondent had a selfish motive, displayed by excessive fees, the loan, finder’s fees, a retained deposit and her failure to return funds as ordered by the Probate Court, transactions in which she and her family benefitted. Her wards were vulnerable victims. When repeatedly questioned about the Bristol Beat loan, Respondent’s responses were evasive. It is clear that she purposely withheld information from the probate court and from her wards’ attorneys, information that would have shed light on her inappropriate conduct.
Respondent has acknowledged the wrongfulness of her conduct, a mitigating factor. She has displayed remorse. Additionally, she has no prior disciplinary record and was a relatively inexperienced attorney in the area of conservatorships.
This court does not believe that for this particular attorney disbarment is the only remedy that will deter her from future misconduct. However, Respondent’s recommendation, a reprimand, is also unacceptable.
As a result of the aforesaid violations, this court does impose a suspension of five years. Prior to any application for readmission, Jodi Zils Gagne must satisfactorily complete 10 hours of Continuing Legal Education as approved by the Connecticut Bar Association. The courses must be in legal ethics and office management; the courses shall be in person and not on line. Additionally, prior to readmission Ms. Gagne shall comply with all outstanding Probate Court orders requiring reimbursement of monies improperly received as a result of her actions as a conservator.
The reimbursement shall at a minimum include disallowed fees, excessive fees, finder’s fees and monies received from Mr. Jabs’ original convalescent home.
Provided she has complied with the above requirements, Jodi Zils Gagne can apply for readmission after one year. Upon readmission there shall be a five-year period during which Jodi Zils Gagne shall be supervised by an attorney in good standing with the Connecticut Bar as recommended by the Office of Disciplinary Counsel. During the period of supervision, Jodi Zils Gagne shall be subjected to periodic random audits.
So ordered.
Rule 1.1 CompetenceA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly ...
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services. Rule 1.7 Conflict of Interest: Current Client
(a) Except as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest, A concurrent conflict of interest exists if:
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Rule 8: Conduct
It is professional misconduct for a lawyer to:
(1) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(2) Engage in conduct that is prejudicial to the administration of justice.
(b) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after termination of the representation.
(k) With respect to client trust accounts required by this Rule:
(3) Withdrawals shall be made only by check payable to a named payee or by authorized electronic transfer and not to cash.
(a) Consistent with the requirement of Rule 1.15 of the Rules of Professional Conduct, each lawyer or law firm shall maintain, separate from the lawyer’s or the firm’s personal funds, one or more accounts accurately reflecting the status of funds handled by the lawyer or firm as fiduciary or attorney, and shall not use such funds for any unauthorized purpose.
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(1) A partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(2) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(3) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if
(A) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved ...
(a) If any person has a legal claim against any executor, administrator, guardian or trustee, on account of moneys paid or services rendered for the estate administered by the executor, administrator, guardian or trustee, and which should justly be paid out of the estate, the claimant may bring a civil action against the executor, administrator, guardian or trustee, while in office, or against the successor of any of them, if such fiduciary has ceased to hold office.
Section 6.11 of the ABA Standards indicates that disbarment "is generally appropriate when a lawyer, with intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding."