Opinion
No. CV 03 0198335 S
July 14, 2004
MEMORANDUM OF DECISION
The Statewide Grievance Committee brought a presentment action, pursuant to Practice Book § 2-47(a), petitioning the court to find Sheri Paige, respondent and attorney of fourteen years at the time of the alleged misconduct, in violation of Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.6, 8.4(3), 8.4(4) and 8.4(5) of the Rules of Professional Conduct. The court convened on January 29, 2004 and February 20, 2004, for the presentment hearing.
A review of respondent's history of professional misconduct is necessary to properly approach the presentment action before the court.
I. Respondent's DISCIPLINARY HISTORY
The respondent was initially reprimanded by the Statewide Grievance Committee on April 20, 1995, for violating Rule 1.16 of the Rules of Professional Conduct in Larose v. Paige, grievance complaint #93-1018. Paige v. Statewide Grievance, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 550327 (January 18, 1996, Maloney, J.) ( 15 Conn. L. Rptr. 652). In this matter, the respondent was retained to represent the complainant in a dissolution action. The client signed the respondent's retainer agreement which required that the client execute an undated pro se appearance form which the respondent could file, leaving the client to thereafter represent herself should the client fail to make any required payment. The Statewide Grievance Committee concluded that the retainer agreement and undated pro se appearance violated Rule 1.16 and Practice Book § 77. On appeal, the court, Maloney, J., agreed.
"[I]f a lawyer arms herself in advance with a signed substitute appearance form, she has in effect intentionally placed herself in a position to disregard those rules and cut the client loose without further ado. The committee reasonably concluded that the plaintiff violated Rule 1.16 in this regard." Id. "In this case, the committee determined that the plaintiff's actions in violation of the rules were potentially detrimental to the interests of her client. Those actions were undeniably intentional." Id.
On or about December 21, 2001, the respondent was reprimanded by a reviewing committee of the Statewide Grievance Committee for violating Rule 1.16(d) of the Rules of Professional Conduct in Carey v. Paige, grievance complaint #00-0167. The complainant had hired the respondent to represent her in a personal injury claim as a result of a slip and fall accident. The relationship between the parties deteriorated and the complainant hired a new attorney. The complainant requested return of her photographs of the scene. The respondent denied possession or receipt of any photographs. The reviewing committee found that the photographs had been provided to the respondent and that the respondent's denials were neither credible nor plausible. On appeal, the court, Owens, J., found that the record supported the committee's conclusion that the respondent violated rule 1.16(d) by failing to surrender the photographs to the grievant. Paige v. Statewide Grievance Committee, Superior Court, judicial district of New Britain, Docket No. 513846 (Nov. 22, 2002, Owens, J.).
A decision of Judge D'Andrea in 2003 indicates his intention to refer the respondent to the Committee on another charge relating to her submission of a document which the court found "was fraudulent and was prepared by or at the direction of the defendant [Sheri Paige] for the purpose of attempting to justify the 25% contingent fee she received, amounting to in excess of $100,000 . . . Indeed, there was precious little of the defendant's testimony which the court deems worthy of belief." Cogswell v. Paige, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 186822, (May 22, 2003, D'Andrea, J.) ( 34 Conn. L. Rptr. 683). This matter has not been considered as an "aggravating factor" as no determination by the Committee has yet been received.
II. STATEMENT OF FACTS
The petition before the court contains allegations of misconduct by the respondent involving her character, integrity, and professional standing and conduct. These allegations arise from the respondent's involvement with Ayman Zidan and his application for immigration to the United States. The court finds the following by clear and convincing evidence.
Zidan, an Egyptian citizen, is married to Yvette Lopez, a United States citizen. Zidan contacted the respondent to discuss applying for United States citizenship based on his marriage to Lopez and expected the information he shared with respondent to be confidential as communications between client and attorney. At the initial meeting in January 2001, respondent produced a list of requirements needed for processing the application. The list is handwritten on the reverse side of a piece of paper containing information about another of respondent's clients. The documents requested included a certificate of marriage, color photos of Zidan and Lopez, "her" birth certificate, "your" birth certificate, wills, car insurance registered with both their names, and bills addressed to both Zidan and Lopez. Additionally, the respondent suggested that Zidan open a joint checking account with his wife and obtain a life insurance policy. The respondent also supplied Zidan with contact information for Warren Seper, an insurance agent, without advising that Seper was her husband The back of this handwritten note, with Seper's name and telephone number, revealed medical information concerning another of respondent's clients.
On February 20, 2001, the respondent presented Zidan with a retainer agreement. She advised that she required such agreement to be signed by a United States citizen and that Zidan's wife, Lopez, would therefore be required to sign as "client" and that she would require Zidan to sign as "guarantor" of the $1,750 legal fee. Zidan paid $1,000 at or about the time of signing that agreement. Subsequent to signing the retainer agreement, Zidan and Lopez notified the respondent of a change in their address. Despite the notification and returned letters marked "undeliverable as addressed," the respondent continued to send letters to Zidan at the wrong address until May 2001. The letters were addressed to Zidan and Lopez and referenced "your immigration case." Zidan made several attempts to contact the respondent by phone, but she refused to speak with him until he paid the balance of the retainer fee.
In December 2001, the respondent submitted Zidan's application for immigration to the Immigration and Naturalization Service's (INS) Vermont Service Center. With this application, the respondent submitted a notice of appearance "as attorney for . . . and at the request of" Zidan. The file was returned to the respondent because it was filed in the wrong office. Upon receiving the returned file, the respondent submitted the application to the INS office in Hartford. The application was ultimately rejected because it did not contain an affidavit of support, and was slated to be returned to the respondent once again.
In May 2002, Zidan expressed his disappointment with respondent's representation and with the delay in processing the application and demanded a refund of the $1,750 retainer fee. The respondent refused to refund the money to Zidan stating that Lopez, not Zidan, was her client. Zidan subsequently retained Attorney Judith Sporn to represent him in his continued application for immigration to the United States. At Attorney Sporn's suggestion, Zidan inquired about his application at the INS office Hartford. The clerk at the office gave the original file to Zidan. Upon learning that the INS office gave the original file to Zidan, the respondent contacted Congressman Christopher Shays and Ethan Anser, Chief of the INS, stating that Zidan's conduct was outrageous.
Finally, Zidan informed the respondent of his intention to file a grievance complaint against her concerning her handling of his immigration case. In a discussion with Attorney Sporn, the respondent suggested that testimony of the respondent at any grievance proceeding would undermine Zidan's application for immigration, and potentially increase any interest of the Federal Bureau of Investigation (FBI) in Zidan as an Egyptian immigrant and possible terrorist sympathizer.
The petitioner filed an amended presentment action dated January 8, 2004, against the respondent. Hearings were held on January 29, 2004 and February 20, 2004, where evidence and testimony was presented. On April 15, 2004, the parties filed post-hearing memoranda of law. The petitioner alleges that respondent violated Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.6, 8.4(3), 8.4(4) and 8.4(5) of the Rules of Professional Conduct.
III. DISCUSSION
A "presentment proceeding 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." Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 483 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170 (1992). The presentment proceeding serves as a "comprehensive disciplinary scheme [that] has been established to safeguard the administration of justice, and [was] designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners . . . [The General Statutes and rules of practice] authorize the grievance committee to act as an arm of the court in fulfilling this responsibility." (Citation omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554, 663 A.2d 317 (1995); see also Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 525-26, 576 A.2d 532 (1990) (grievance committee is not an administrative agency but an arm of the court). "As officers and commissioners of the court, attorneys are in a special relationship with the judiciary and are subject to the court's discipline." (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 450-51, 767 A.2d 732 (2001).
The grievance committee has the burden of proving the allegations of the complaint by clear and convincing evidence. Statewide Grievance Committee v. Whitney, 227 Conn. 829, 838, 633 A.2d 296 (1993). When misconduct is found, the court is authorized to impose "reprimand, suspension for a period of time, disbarment or such other discipline as the court deems appropriate." Practice Book § 2-47(a). Further, "[t]he trial court conducts the presentment proceeding de novo . . . In determining whether an attorney violated the Rules of Professional Conduct and the appropriate sanction to impose, the trial court possesses a great deal of discretion." (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Timbers, 70 Conn. App. 1, 3, 796 A.2d 565 (2002).
A threshold issue in determining whether the respondent violated the Rules of Professional Conduct is whether an attorney-client relationship existed between the respondent and Zidan. The Respondent denies that such a relationship existed and claims, therefore, that there was no breach of the duties alleged. "An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession." (Internal quotation marks omitted.) Distefano v. Milardo, 82 Conn. App. 838, 846, 847 A.2d 1034 (2004). "[T]he relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from conduct of the parties." 7 Am.Jur.2d, Attorneys at Law § 136 (2003). "It is not the rendering of legal advice that establishes the attorney-client relationship . . . Rather, it is the client's seeking of legal advice . . . that establishes the relationship . . ." (Internal quotation marks omitted.) Palomba v. Sullivan, Superior Court, judicial district of Waterbury, Docket No. CV 95-0127743 (December 24, 1998, Pellegrino, J.) ( 23 Conn. L. Rptr. 556). Here, in January 2001, Zidan sought legal assistance from the respondent on the matter of his immigration application. On several occasions, he met, alone, with the respondent to discuss his situation. Respondent gave him a list of the immigration application requirements. Respondent answered Zidan's legal questions regarding wills and life insurance policies as they related to his application. Correspondences, after Zidan's initial meetings with respondent, were addressed to him and his wife and referenced "your immigration case." Most significant, respondent signed and filed an appearance for Zidan that was submitted to the INS with the immigration application.
The conduct of the parties overwhelmingly reveals an attorney-client relationship. Not only did Zidan seek and receive legal assistance, but the respondent, by filing an appearance with the INS, confirmed her capacity as his attorney. Zidan's status as a client required respondent to act pursuant to the Rules of Professional Conduct. Respondent's persistent denial of an attorney-client relationship with Zidan is a transparent attempt to manufacture an excuse for her violations of the Rules. As set forth in detail below, this court finds that respondent's actions violated the duties established by Rules 1.3, 1.4, 1.5, 1.6, 1.16, 8.4(3), 8.4(4) and 8.4(5).
A. RULE VIOLATIONS 1. Rule 1.3, 8.4(3), 8.4(4) and 8.4(5) CT Page 11204
Respondent did not sufficiently represent her client and fulfill her duty to Zidan. In addition, she used deceptive and fraudulent tactics towards Zidan and the court.
Zidan sought, and respondent agreed to and undertook to provide, professional assistance for his immigration application. The respondent was, therefore, obligated to act in accordance with Rule 1.3. Rule 1.3 requires that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." The commentary to Rule 1.3 provides that "[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer . . . A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf."
Rule 8.4 addresses issues of attorney misconduct. Rule 8.4(3) specifically forbids an attorney from "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation" Further, Rule 8.4(4) condemns "engaging in conduct that is prejudicial to the administration of justice" and Rule 8.4(5), prohibits "stating or implying an ability to influence improperly a government agency or official." The commentary to Rule 8.4 suggests that a pattern of minor offenses is sufficient to show indifference to a legal obligation and abuse of the lawyer's position can show an inability to fulfill the professional role of attorney.
From the initial meeting with Zidan, respondent prioritized her interests to those of Zidan's. Despite her fourteen years of experience, respondent advised Zidan to obtain life insurance and sent him to her husband, an agent, with a different surname, without advising him of the relationship. Based on this advice, Zidan's wife purchased insurance from the respondent's husband enabling her husband to earn a commission. Life insurance is not a necessity for a successful immigration application. Zidan was unaware that the recommended insurance agent was respondent's husband and that life insurance was not required. In an effort to conceal her wrongdoing, respondent introduced, at the presentment hearing, a copy of a document appearing to contain Zidan's signature and to indicate Zidan's awareness of Seper's relationship to the respondent. However, Zidan had not seen the original or the copy of the offered document prior to its offer as an exhibit. He had never signed the original. Respondent's action of facilitating her husband's insurance sale and commission was accomplished by failing to provide her client with full disclosure as to the ability to apply without life insurance or as to her relationship to the agent. She placed her own and her husband's interest before those of her client, and, in an effort to conceal her behavior, she offered a manufactured exhibit purportedly, but not actually, containing Zidan's signature acknowledging knowledge of the relationship, thus violating Rules 1.3, 8.4(3), 8.4(4) and 8.4(5).
Zidan credibly denied both having seen the document prior to that day in court and having signed it. Close inspection of the copy presented to the court revealed that Zidan's signature was photocopied from the guarantee of payment signature on Respondent's retainer agreement, and then again onto the exhibit.
In addition, respondent made veiled threats, to Zidan and his new attorney, to reveal information that would harm Zidan's chances for a successful immigration application and which would add material to an FBI investigation against him. She stated that were grievance proceedings to occur, transcripts could end in the hands of the FBI. Her threats violated Rule 8.4 because they constituted conduct prejudicial to the administration of justice and an attempt, by intimidation, to obstruct the grievance process and system.
Finally, respondent claimed that filing her appearance with the INS did not mean that she was Zidan's attorney because of an oral understanding she had with Zidan and his wife which qualified and limited the nature of the relationship. Were this true, the filing of her unqualified appearance would have perpetrated a fraud on the INS. However, the claim of the limited-qualified appearance was not credible, and the court finds that no such oral agreement existed. Rather, the respondent's testimony was an attempt to mislead the court as to whether Zidan was a client and, thereby, to avoid the applicability of the provisions of the Code of Conduct. Respondent's conduct was misleading, fraudulent and prohibited by Rule 8.4(3).
2. Rule 1.4
The attorney has the duty to maintain communications with the client. Rule 1.4(a) governs the attorney's responsibility and states that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Here, because of respondent's contorted efforts to avoid recognizing and acknowledging Zidan's status as a client, she claimed no obligation to and did not keep Zidan advised as to the status of his immigration application. This led to a strain on and a breakdown in the relationship and to Zidan's retention of substitute counsel. At the time he retained new counsel, Zidan, because of respondent's failure to keep him informed despite numerous requests, was uninformed about and did not understand the status of his application. Respondent violated Rule 1.4 by neglecting to reasonably inform Zidan about the status of his immigration application.
3. Rule 1.5(b)
Once an attorney-client relationship is established, the attorney must discuss fees involved with the representation in accordance with Rule 1.5(b). The Rule states that "the basis or rate of the fee . . . and the scope of the matter to be undertaken shall be communicated to the clients in writing, before or within a reasonable time after commencing the representation." Further, the commentary to Rule 1.5 states that "[i]n a new client-lawyer relationship . . . an understanding as to the fee should be promptly established." Respondent established an attorney-client relationship with Zidan, however, she did not comply with Rule 1.5 by failing to enter into a retainer agreement with Zidan. Instead, the respondent created a retainer agreement with Zidan's wife and insisted that Zidan sign as a "guarantor." In so doing, she took advantage of her own client and, even after filing an appearance on his behalf, continued and continues to attempt to avoid and deny her responsibilities to her former client. Zidan's status as an alien is no justification to forego the responsibility of establishing a retainer agreement with her client.
4. Rule 1.6
Rule 1.6(a) strictly forbids attorneys to reveal confidences shared between an attorney and client unless there is consent by the client. The commentary to Rule 1.6(a) provides guidance by noting that this duty continues even after termination of the lawyer-client relationship. The Rule protects full and frank disclosure between an attorney and a client. Without Zidan's approval, respondent disseminated information to Congressman Shays and the Chief of the INS about Zidan's application and about the INS agent's return of the original file to him. This information was potentially harmful to his application approval, and Zidan expected his conversations to be kept private. Dissemination of client confidences such as those revealed by the respondent is in direct violation of Rule 1.6(a).
In addition, respondent customarily reused paper which contained confidential client information as scrap. She did not protect the information on this paper from being revealed to other clients. In one instance, on the back of a note she gave to Zidan with information as to where to purchase life insurance, was information concerning another client's medical treatment, the name of the treating physician, and the medical bill details. By allowing access to this confidential information, the respondent violated Rule 1.6(a).
5. Rule 1.16
The attorney's duties upon termination of an attorney-client relationship are detailed in Rule 1.16(d). The Rule states: "If the representation of the client is terminated either by the lawyer withdrawing from representation or by the client discharging the lawyer, the lawyer shall confirm the termination in writing to the client before or within a reasonable time after the termination of the representation." In May 2002, Zidan expressed his dissatisfaction with respondent's representation, asked for his payments to be refunded and clearly made respondent aware of her termination. Respondent was advised that Zidan had hired Attorney Sporn. Respondent failed to send a letter to her client, Zidan, concerning her termination and thereby violated 1.16(d).
B. SANCTIONS
The court now must determine what sanction to impose on the respondent. "[A] court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession . . . Thus, a court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what the sanction should be." (Citation omitted; internal quotation marks omitted.) Burton v. Mottolese, 261 Conn. 1, 54, 835 A.2d 998 (2003). The trial court has "inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it." (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, 230 Conn. 668, 678, 646 A.2d 781 (1994). "[C]ourts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice." (Internal quotation marks omitted). Id., 679. "In sanctioning [the respondent], the trial court [is] guided by the American Bar Association's [(ABA)] Standards for Imposing Lawyer Sanctions . . . The [ABA] Standards provide that, after a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorney's mental state; (3) the potential or actual injury stemming from the attorney's misconduct; and (4) the existence of aggravating or mitigating factors. A.B.A., Standards for Imposing Lawyer Sanctions (1986) standard 3.0, p. 25." Briggs v. McWeeny, 260 Conn. 296, 333-34, 796 A.2d 516 (2002).
First, the duties violated by the respondent involve her fundamental responsibility to her client and her obligations to safeguard and promote the administration of justice. Second, the respondent's mental state did not appear to be a factor in her misconduct and rule violations. Third, respondent's actions did not cause Zidan to lose his job, but did delay his application approval. Finally, the ABA identifies the aggravating factors as being: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; and (k) illegal conduct, including that involving the use of controlled substances. A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 9.22, p. 49. The court will consider the factors that are relevant to respondent's conduct.
The Statewide Grievance Committee has reprimanded respondent twice as detailed in section one of this opinion. Respondent's actions here were both dishonest and selfish. The life insurance referral was done for her benefit, and was done without the necessary disclosure of her relationship to the agent and respondent attempted to mislead the court as to these events with the manufactured exhibit. She continues to claim she was not Zidan's attorney, to the point of denying the effect and import of the appearance she filed on his behalf. Finally, respondent knew that her client was vulnerable. She has had substantial experience at practicing law, whereas Zidan, an immigrant, was unfamiliar with the legal system and his immigration was a critical issue in his life. He was naturally at the mercy of respondent.
The mitigating factors that the ABA suggests to consider in imposing sanctions are: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation, (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; and (m) remoteness of prior offenses. A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 9.22, p. 50.
Respondent's attempt to present mitigating factors for the court to consider are unconvincing. She downplays the selfish motive of suggesting a life insurance policy purchased from her husband by stating that the commission made on the purchase was minimal. She did not attempt to rectify the problems she created but rather tried to deceive the court in its review of her misconduct. She is not an inexperienced lawyer, and the other mitigating factors to be considered are not relevant. The court finds that there are no mitigating factors to consider in determining respondent's sanctions.
Respondent's violations gravely concern the court. She neglects to recognize the fundamental aspects of an attorney-client relationship and fails to provide the proper respect a client deserves. She does not prioritize her client's interests and exploits her position over the client in order to manipulate the relationship to suit her needs. Further, she threatened the administration of justice by submitting falsified documents to the court, and her attempt to obstruct the grievance procedures poses a strong public policy concern. Her actions do not reflect the integrity demanded of attorneys and undermine the public confidence in the judicial system.
Viewing the guidelines of the ABA and respondent's violations, it is hereby ordered that Sheri Paige is suspended from the practice of law in this state for one year. She must apply for reinstatement and achieve a passing score on the Multistate Professional Responsibility Exam (MPRE) in order to obtain permission to practice law after the one-year suspension. Pursuant to Practice Book § 2-64, the court also appoints Attorney Roy S. Ward of the Law Office of Roy S. Ward, 830 Post Road East, Westport, CT 06880, as trustee for the purposes of conducting an inventory of files, securing clients' fund accounts, and taking whatever other action as seems necessary to protect the interests of the respondent's clients.
Hiller, J.