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STATEWIDE GRIEVANCE COMMITTEE

Cassandra HendersonComplainant

vs.

Joseph MonizRespondent

Grievance Complaint #09-1073

DECISION

Pursuant to Practice Book 2-35, the undersigned, duly-appointed reviewing committeeof the Statewide Grievance Committee, conducted a hearing at the Superior Court, 80Washington Street, Hartford, Connecticut on May 13, 2010. The hearing addressed the recordof the complaint filed on December 8, 2009, and the probable cause determination filed by theHartford Judicial District Grievance Panel for Geographical Area 13 and the town of Hartfordon March 23, 2010, finding that there existed probable cause that the Respondent violatedRules 1.3, 1.4, 1.5 and 8.1 of the Rules of Professional Conduct and Practice Book 232(a)(1).

Notice of the hearing was mailed to the Complainant, to the Respondent and to theOffice of the Chief Disciplinary Counsel on April 9, 2010. Pursuant to Practice Book 235(d), Assistant Disciplinary Counsel Karyl Carrasquilla pursued the matter before thisreviewing committee. The Complainant and the Respondent appeared at the hearing andtestified.This reviewing committee finds the following facts by clear and convincing evidence:On October 8, 2008, the Complainant retained the Respondent to represent herhusband, Mitchell Henderson, in connection with proceedings to correct his sentence. TheRespondent provided the Complainant with a written fee agreement. The fee agreement statedthat the Respondent would "... prepare and file all papers to correct the sentence and handlethe hearing and any appeal of the court's ruling ... " The Respondent charged the Complainanta flat fee of $10,000 for these services.After the fee agreement was signed, the Respondent met with Mr. Henderson on twooccasions at the courthouse on Lafayette Street in Hartford. The Respondent also contactedMr. Henderson's prison counselor and arranged to speak with Mr. Henderson on twooccasions. Thereafter, on or about December 9, 2008, the Respondent appeared in court andfiled a motion with supporting memorandum to correct Mr. Henderson's sentence. The

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Grievance Complaint #09-1073,DecisionPage 2Respondent met with Mr. Henderson on December 9, 2008 when the motion was filed. TheRespondent also filed a reply to the 1;Jrief filed by the State.

After the motion was filed in December of 2008, the Complainant experienceddifficulties reaching the Respondent by telephone. The Respondent also failed to keep twoappointments with the Complainant in, January of 2009. The Complainant was able to meetwith the Respondent on two other occasions in January of 2009. On both occasions, AttorneyGerline Fleury was present with the Respondent. Attorney Fleury advised the Complainantthat she was assisting the Respondent.On February 9, 2009, Attorney Fleury appeared in court to argue the Motion to Correct

Sentence. Attorney Fleury advised Mr. Henderson that the Respondent had been suspendedfrom the practice of law. The Respondent's suspension became effective on February 19,2009 and provided that the Respondent was to retain the services of Attorney Fleury to work inhis office. The court eventually denied the Motion to Correct Sentence on proceduralgrounds.The Respondent, thereafter, assisted' Attorney Fleury in preparing the Notice of Appealdocuments which Attorney Fleury signed and filed. Attorney Fleury subsequently left theRespondent's office and declined to handle the appeal. Mr. Henderson's appeal was thereaftertransferred to the Public Defender's office. The Complainant asked the Respondent to returnthe balance of the $10,000 retainer. The Respondent, however, refused to do so.The Complainant subsequently filed this grievance complaint against the Respondent onDecember 8, 2009. On December 10, 2009, a copy of the grievance complaint was sent bycertified mail to the Respondent at the last home and office addresses registered with theStatewide Grievance Committee. The Respondent was advised of his duty under Practice Book2-32(a)(I) to respond to the grievance complaint within thirty days. The delivery receiptreflects' that the Respondent signed for the complaint delivered to his home address 011December 16, 2009. The Respondent did not file a response to the grievance complaint asdirected.This reviewing committee also considered the following:The Respondent maintained that he did not respond to the grievance complaint becausein December of 2009 and January of 2010 he was out-of-state visiting his daughters.Thereafter, he was hospitalized'in Rhode Island for heart problems.This reviewing committee concludes by clear and convincing evidence that theRespondent engaged in unethical conduct. The Respondent's fee agreement clearly states thatthe $10,000 fee was a flat fee which included any appeal of the court 's ruling. The recordreflects that the court's ruling was appealed and after drafting and filing the Notice of Appealdocuments, the Respondent was unable to handle the appeal since he was suspended from thepractice of law and his associate left his office. The Respondent has refused to return any

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Grievance Complaint #09-1073DecisionPage 3portion of the retainer to the Complainant. This reviewing committee concludes that theRespondent's failure to complete the representation pursuant to the fee agreement makes hisfee uureasonable in violation of Rule 1.5(a)(4) of the Rules of Professional Conduct.

This reviewing committee further concludes that the Respondent's failure to submit aresponse to the grievance complaint constitutes a violation of Rule 8.1(2) of the Rules ofProfessional Conduct and Practice Book 2-32(a)(I). We find that the Respondent did notestablish good cause for his failure to respond to the grievance' complaint. Although theRespondent maintained that he was out-of-state when the grievance complaint was sent to himin December of 2009, the certified receipt reflects that the Respondent signed for the complainton December 19, 2009. The Respondent could have requested additional time to respond tothe grievance complaint due to his travel plans or illness.This reviewing committee could not conclude by clear and convincing evidence that theRespondent failed to provide Mr. Henderson with diligent representation in violation of Rule1.3 of the Rules of Professional Conduct or that the Respondent failed to adequately.communicate with Mr. Henderson in violation of Rule 1.4(3) and (4) of the Rules ofProfessional Conduct. The record reflects that the Respondent prepared and filed a motion andsupporting memorandum to correct Mr. Henderson's sentence and a reply brief. Although theRespondent was unable to argne the motion due to his suspeilSion,Attomey Fleury appearedand argued the motion on behalf ofMr; Henderson. In addition, the Respondent ensured thatthe decision was timely appealed. Accordingly, we cannot conclude that the Respondent failedto provide Mr. .Henderson with diligent representation. We were also unable to conclude byclear and convincing evidence that the Respondent failed to adequately communicate with hisclient, Mr. Henderson. Although the Respondent did not respond to all of the Complainant'stelephone calls and missed some scheduled appointments with the Complainant, theComplainant was not his client. The record before this reviewing committee reflects that theRespondent met with Mr. Henderson on two occasions prior to filing the motion to correctsentence and that he had several telephone calls with Mr. Henderson. Accordingly, we cannotconclude by clear and convincing evidence that the Respondent failed to keep Mr. Hendersonreasonably informed regarding the status of his case.

This reviewing committee concludes that the Respondent's violations ofRules 1.5(a)(4) .and 8.1(2) of the Rules of Professional Conduct and Practice Book 2-32(a)(l) warrant asuspension. Accordingly, we direct Disciplinary Counsel to file a presentment against theRespondent in the Superior Court for the imposition ofwhatever discipline the court may deemappropriate.(3)asc DECISIONDATE: __l , - - ~ q - ! . _ I D__

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JkJ2.r. Malcolm Forbes