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STATEWIDE GRIEVANCE COMMITTEE

Cassandra Henderson
Complainant

vs. Grievance Complaint #09-1073

Joseph Moniz
Respondent

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, 80
Washington Street, Hartford, Connecticut on May 13, 2010. The hearing addressed the record
of the complaint filed on December 8, 2009, and the probable cause determination filed by the
Hartford Judicial District Grievance Panel for Geographical Area 13 and the town of Hartford
on March 23, 2010, finding that there existed probable cause that the Respondent violated
Rules 1.3, 1.4, 1.5 and 8.1 of the Rules of Professional Conduct and Practice Book §2-
32(a)(1).

Notice of the hearing was mailed to the Complainant, to the Respondent and to the
Office of the Chief Disciplinary Counsel on April 9, 2010. Pursuant to Practice Book §2-
35(d), Assistant Disciplinary Counsel Karyl Carrasquilla pursued the matter before this
reviewing committee. The Complainant and the Respondent appeared at the hearing and
testified.

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

On October 8, 2008, the Complainant retained the Respondent to represent her


husband, Mitchell Henderson, in connection with proceedings to correct his sentence. The
Respondent provided the Complainant with a written fee agreement. The fee agreement stated
that the Respondent would "... prepare and file all papers to correct the sentence and handle
the hearing and any appeal of the court's ruling ... " The Respondent charged the Complainant
a flat fee of $10,000 for these services.

After the fee agreement was signed, the Respondent met with Mr. Henderson on two
occasions at the courthouse on Lafayette Street in Hartford. The Respondent also contacted
Mr. Henderson's prison counselor and arranged to speak with Mr. Henderson on two
occasions. Thereafter, on or about December 9, 2008, the Respondent appeared in court and
filed a motion with supporting memorandum to correct Mr. Henderson's sentence. The
Grievance Complaint #09-1073
,Decision
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Respondent met with Mr. Henderson on December 9, 2008 when the motion was filed. The
Respondent also filed a reply to the 1;Jrief filed by the State.

After the motion was filed in December of 2008, the Complainant experienced
difficulties reaching the Respondent by telephone. The Respondent also failed to keep two
appointments with the Complainant in, January of 2009. The Complainant was able to meet
with the Respondent on two other occasions in January of 2009. On both occasions, Attorney
Gerline Fleury was present with the Respondent. Attorney Fleury advised the Complainant
that 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 suspended
from 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 in
his office. The court eventually denied the Motion to Correct Sentence on procedural grounds.
The Respondent, thereafter, assisted' Attorney Fleury in preparing the Notice of Appeal
documents which Attorney Fleury signed and filed. Attorney Fleury subsequently left the
Respondent's office and declined to handle the appeal. Mr. Henderson's appeal was thereafter
transferred to the Public Defender's office. The Complainant asked the Respondent to return
the balance of the $10,000 retainer. The Respondent, however, refused to do so.

The Complainant subsequently filed this grievance complaint against the Respondent on
December 8, 2009. On December 10, 2009, a copy of the grievance complaint was sent by
certified mail to the Respondent at the last home and office addresses registered with the
Statewide Grievance Committee. The Respondent was advised of his duty under Practice Book
§2-32(a)(I) to respond to the grievance complaint within thirty days. The delivery receipt
reflects' that the Respondent signed for the complaint delivered to his home address 011
December 16, 2009. The Respondent did not file a response to the grievance complaint as
directed.

This reviewing committee also considered the following:

The Respondent maintained that he did not respond to the grievance complaint because
in 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 the
Respondent engaged in unethical conduct. The Respondent's fee agreement clearly states that
the $10,000 fee was a flat fee which included any appeal of the court's ruling. The record
reflects that the court's ruling was appealed and after drafting and filing the Notice of Appeal
documents, the Respondent was unable to handle the appeal since he was suspended from the
practice of law and his associate left· his office. The Respondent has refused to return any
Grievance Complaint #09-1073
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portion of the retainer to the Complainant. This reviewing committee concludes that the
Respondent's failure to complete the representation pursuant to the fee agreement makes his
fee 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 a
response to the grievance complaint constitutes a violation of Rule 8.1(2) of the Rules of
Professional Conduct and Practice Book §2-32(a)(I). We find that the Respondent did not
establish good cause for his failure to respond to the grievance' complaint. Although the
Respondent maintained that he was out-of-state when the grievance complaint was sent to him
in December of 2009, the certified receipt reflects that the Respondent signed for the complaint
on December 19, 2009. The Respondent could have requested additional time to respond to
the grievance complaint due to his travel plans or illness.

This reviewing committee could not conclude by clear and convincing evidence that the
Respondent failed to provide Mr. Henderson with diligent representation in violation of Rule
1.3 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 of
Professional Conduct. The record reflects that the Respondent prepared and filed a motion and
supporting memorandum to correct Mr. Henderson's sentence and a reply brief. Although the
Respondent was unable to argne the motion due to· his suspeilSion,Attomey Fleury appeared
and argued the motion on behalf of Mr; Henderson. In addition, the Respondent ensured that
the decision was timely appealed. Accordingly, we cannot conclude that the Respondent failed
to provide Mr. .Henderson with diligent representation. We were also unable to conclude by
clear and convincing evidence that the Respondent failed to adequately communicate with his
client, Mr. Henderson. Although the Respondent did not respond to all of the Complainant's
telephone calls and missed some scheduled appointments with the Complainant, the
Complainant was not his client. The record before this reviewing committee reflects that the
Respondent met with Mr. Henderson on two occasions prior to filing the motion to correct
sentence and that he had several telephone calls with Mr. Henderson. Accordingly, we cannot
conclude by clear and convincing evidence that the Respondent failed to keep Mr. Henderson
reasonably informed regarding the status of his case.

This reviewing committee concludes that the Respondent's violations of Rules 1.5(a)(4) .
and 8.1(2) of the Rules of Professional Conduct and Practice Book §2-32(a)(l) warrant a
suspension. Accordingly, we direct Disciplinary Counsel to file a presentment against the
Respondent in the Superior Court for the imposition of whatever discipline the court may deem
appropriate.

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Mr. Malcolm Forbes