Opinion
HHDCV176083209S
03-14-2018
OFFICE OF CHIEF DISCIPLINARY COUNSEL v. John M. BROWN
UNPUBLISHED OPINION
OPINION
Sheridan, J.
This is an attorney disciplinary matter, commenced by way of a one-count presentment dated October 20, 2017, in which the Office of the Chief Disciplinary Counsel charges the respondent John Brown with violating Rules 1.5(a), 1.5(b), 1.5(e), 1.4(a)(3), and 8.4(4) of the Rules of Professional Conduct in connection with fees collected while representing a client in litigation matters.
I. APPLICABLE DISCIPLINARY RULES
Under Rule 1.5(a) of the Rules of Professional Conduct " [a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." Rule 1.5(b) requires that " [t]he scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation agreement."
Rules of Professional Conduct Rule 1.5(e) states that " [a] division of fee between lawyers who are not in the same firm may be made only if: (1) The client is advised in writing of the compensation sharing agreement and of the participation of all the lawyers involved, and does not object; and (2) The total fee is reasonable."
Rules of Professional Conduct Rule 1.4(a)(3) requires a lawyer to at all times " keep the client reasonably informed about the status of the matter."
Finally, under Rule 8.4(4), it is " professional misconduct" for a lawyer to " engage in conduct that is prejudicial to the administration of justice."
II. FINDINGS
A hearing was held on January 23, 2018. The court heard testimony from the respondent and thirteen different exhibits were admitted into evidence. The respondent’s January 19, 2018 Answer [# 104.00] admits practically all of the factual allegations of the Presentment. Having reviewed the submissions and heard the parties, the court makes the following findings.
John Brown (hereinafter " the Respondent" or " Attorney Brown" ) is an attorney duly admitted to the bar of the State of Connecticut and has been so since June 10, 2003. Respondent is also admitted to practice law in the state of Massachusetts. He has no record of discipline in Connecticut.
The Complainant, Ms. Pamela Jones " worked as a Walgreens employee for approximately twenty years, starting in 1986. During most of her tenure, Jones served as a Store Manager at a Walgreens location in Enfield, Connecticut ... In January 2004, Jones slipped on ice in front of a Walgreens office, injuring her knee. Thereafter, Jones was on medical leave until May 2004 recovering from her injuries. Jones again stepped away from work in June 2004, this time to have surgery on her knee." Jones v. Walgreen Co., 679 F.3d 9, 12 (1st Cir. 2012).
For various reasons, Ms. Jones believed she was being discriminated against by Walgreens on the basis of her gender. She consulted with Attorney Brown regarding a potential lawsuit. On June 23, 2005 Attorney Brown and Ms. Jones entered into a fee agreement whereby Attorney Brown would receive an hourly fee of $175 per hour for representing Ms. Jones in " employment discrimination claims against [her] current employer." In July of 2005, on behalf of Ms. Jones, Attorney Brown filed claims with the Connecticut Commission on Human Rights and Opportunities and the U.S. Equal Employment Opportunity Commission, accusing Walgreens of discrimination against women.
" In October 2005, Walgreens offered Jones a position as Store Manager in Springfield, Massachusetts. Jones accepted the offer to relocate to Springfield and resume her employment." Jones v. Walgreen Co., 679 F.3d 9, 12 (1st Cir. 2012). Ms. Jones then resumed her employment with Walgreens at the Springfield location, informing her supervisor of her various physical difficulties and limitations and suggesting that she deserved a raise.
Meanwhile, " [i]n mid-2006, Plaintiff received release of jurisdiction and right-to-sue letters [from CHRO and EEOC], and she then filed a class action complaint in the District of Connecticut. Defendant Walgreen was served with notice of process on July 1, 2006." Jones v. Walgreen Co., 765 F.Supp.2d 100, 103-04 (D.Mass. 2011), aff’d, 679 F.3d 9 (1st Cir. 2012).
In September 2006, Ms. Jones informed her supervisor that she was having difficulty walking and shelving items at the store and believed she was working longer hours than were medically advisable. The supervisor asked Jones to provide updated medical information. On October 13, 2006, shortly after Ms. Jones had provided the updated medical information, Ms. Jones was terminated from her job at Walgreens. Walgreens claimed Ms. Jones had been terminated because she could " no longer perform the essential functions of [her] position as Store Manager." Jones v. Walgreen Co., 679 F.3d 9, 13 (1st Cir. 2012). Ms. Jones believed that she had been terminated in retaliation for the gender discrimination claims she had made against Walgreens.
On January 10, 2007 Attorney Brown sent a letter to Ms. Jones memorializing the terms of their agreement concerning his representation of her in a " retaliation complaint" against Walgreens. Attorney Brown agreed to represent Ms. Jones " on a contingency fee basis, at the rate of 1/3rd of any recovery." Ms. Jones signed and acknowledged the document on January 10, 2007.
On January 10, 2007 Attorney Brown also sent a " CLASS ACTTON ENGAGEMENT AGREEMENT" to Ms. Jones. The letter acknowledged that " the nature of your case against Walgreens has escalated dramatically from the time when the CHRO complaint was filed. It has become increasingly apparent that the claim we have brought may best be pursued on a class action basis." It proposed changes to the June 23, 2005 fee ‘agreement for representation in the employment discrimination case, converting the fee arrangement from an hourly fee to a fee equal to one third of " any recovery obtained in this matter." In recognition of the substantial sums Ms. Jones had previously invested in the litigation, Attorney Brown agreed to reimburse all or a portion of those fees from any recovery he received in the class action litigation. Ms. Jones signed and acknowledged the document on January 10, 2007.
Attorney Brown decided to enter into a co-counsel arrangement with a large Chicago law firm. Hughes, Socol Piers, Resnick & Dym, LTD (" HSPRD" ), for the handling of the class action lawsuit. HSPRD prepared a fee agreement dated May 7, 2007 for Ms. Jones for the class action lawsuit. The agreement as signed expressly removes from the scope of HSPRD’s representation any claims that Ms. Jones may have against Walgreens " arising out of ... the termination of [client’s] employment." Around August 27, 2010, the class action lawsuit settled for $17 Million to be distributed among 21,000 class members. Attorneys fees were awarded and HSPRD disbursed $644,960.40 of the awarded fee to respondent. Ms. Jones received $52,896.23.
In January 2009, Attorney Brown filed a lawsuit in United States District Court in Massachusetts on behalf of Ms. Jones, naming Walgreens and its benefits plan administrator, MetLife Insurance, as defendants. In addition to alleging wrongful discharge and retaliation, the lawsuit also alleged claims connected to an unlawful denial of long-term disability benefits to Ms. Jones. The wrongful discharge and retaliation claims were eventually dismissed, but the claim that Walgreens and its insurance carrier wrongfully denied long-term disability benefits to Ms. Jones survived, and ultimately yielded a resolution whereby Ms. Jones received approximately $218,439.16 in past due disability benefits as well as an award of future long-term disability income stream of $3,855.00 per month beginning January 2012.
Attorney Brown took the position that, pursuant to a fee agreement with Ms. Jones, he was entitled to one-third of that recovery, plus costs and expenses. Accordingly, from the $218,439.16 recovery for past disability benefits Attorney Brown was paid $81,712.85 (representing a $61,429.30 attorney fee, a $13,000 appeal fee paid to HSPRD, and $7,283.55 in costs). In addition, beginning in January 2012, Ms. Jones tendered one-third of the monthly disability payment, or $1,285.00, to Attorney Brown, purportedly in payment of attorneys fees. Ms. Brown continued to make the monthly payments through January 2013, at which time she refused to make any more payments.
After an exchange of letters, Attorney Brown commenced a lawsuit against Ms. Jones in Superior Court in Massachusetts seeking to collect the attorneys fees portion of the disability benefits. Ms. Jones filed a counterclaim in that action, seeking a declaratory judgment that there was no written fee agreement between her and Attorney Brown with respect to the disability claims against Met Life and Walgreens. On June 30, 2015, the Massachusetts Superior Court granted summary judgment to Ms. Jones on her counterclaim, finding that the January 10, 2007 written fee agreement did not apply to the disability claims against Met Life and Walgreens, that the parties did not have a written fee agreement with respect to that litigation, and that therefore Ms. Jones was not liable to Attorney Brown for a monthly payment of one-third of the disability benefits received from MetLife/Walgreens.
Also, at the conclusion of the disability case, Attorney Brown filed a motion to recover attorney fees and costs on behalf of the prevailing party. On February 23, 2012, the District Court ruled on the motion, allowed attorneys fees in the amount of $37,500. In May 2012, the respondent received payment of $37,500 pursuant to the District Court order and retained those funds for himself- no portion was paid to the plaintiff.
" [I]n a matter involving attorney discipline, no sanction may be imposed unless a violation of the Rules of Professional Conduct has been established by clear and convincing evidence ..." Sowell v. DiCara, 161 Conn.App. 102, 123-24, 127 A.3d 356, 370 (2015). The court finds that violations of Rules 1.4(a)(3), 1.15(b) and (e), and 8.4(4) of the Rules of Professional Conduct have not been proven by the requisite standard of clear and convincing evidence.
The court does find that the Disciplinary Counsel has proven a violation of Rules 1.5(a) and 1.5(b) of the Rules of Professional Conduct by clear and convincing evidence.
III. STANDARDS
The disciplinary process is neither a civil action whose objective is to provide restitution to a victim nor a criminal action intended to punish the offender; its objective is to protect the court. In re Application of Pagano, 207 Conn. 336, 339, 541 A.2d 104 (1988). " Attorney disciplinary proceedings are for the purpose of preserving the courts of justice from the official ministration of persons unfit to [practice] in them ... An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited ... Therefore, 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." (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Spirer, 247 Conn. 762, 771-72, 725 A.2d 948 (1999).
Having made a finding of misconduct, the Court is vested with wide discretion in determining the appropriate discipline. In arriving at a determination of the appropriate discipline in the present case, the court has considered the factors outlined in the American Bar Association’s Standards for Imposing Lawyer Sanctions. " The Standards, which were officially promulgated in 1986, have not been officially adopted in Connecticut. They are, however, used frequently by the Superior Court in evaluating attorney misconduct and in determining discipline ..." Statewide Grievance Committee v. Glass, 46 Conn.App. 472, 481, 699 A.2d 1098 (1997). " In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors: (a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors ... Aggravating factors include: (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 ... Mitigating factors include: (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 ... (j) interim rehabilitation in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses." Statewide Grievance Committee v. Shluger, 230 Conn. 668, 673 n. 10, 646 A.2d 781 (1994).
IV. CONCLUSION
In determining the appropriate discipline, the court has given consideration to the nature of the duty violated and the applicable aggravating and mitigating factors. The court finds that the following mitigating factors in this particular case: the absence of a dishonest or selfish motive; inexperience in the practice of law; full and free disclosure to the disciplinary counsel and a cooperative approach toward these proceedings, and genuine regret and remorse. Balancing the aggravating and mitigating factors, it appears that the scales tip substantially toward lenience in this instance.
In determining the appropriate sanction the court is mindful of the guidance of our Supreme Court that " [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 misconduct or unfitness of those who are members of the legal profession." Thalheim v. Greenwich, 256 Conn. 628 at 655 (2001).
Under all of the circumstances the court concludes that a disciplinary sanction in the present case is unnecessary. The disciplinary process has been instructive to the Respondent with respect to his obligations surrounding fee arrangements with clients, and it is clear that he is fully aware that he needs to take considerably more care in making, documenting, and enforcing fee agreements in the future.