Fatos Koleci v. Statewide Grievance Committee (2013)

MEMORANDUM OF DECISION

The plaintiff, Fatos Koleci, is an attorney admitted to practice in the state of Connecticut and appeals from a decision of a reviewing committee of the Statewide Grievance Committee's decision ordering a reprimand, and from the Committee's decision failing to dismiss the grievance filed against him.

The decision of the Statewide Grievance Committee, hereinafter Committee, in the underlying complaint (# 09–0400) provides the following background.   The plaintiff was hired by the complainant, Avdi Latifi, and his wife to pursue an application for citizenship.   The complainant and his wife were refugees from Kosovo who had lived in the United States for some 13 years.   They did not speak English sufficient to pass the portion of the citizenship test which required English proficiency.   On October 8, 2007, the complainant and his wife met with the plaintiff and paid him $500 to complete citizenship applications.   He provided a receipt which stated “preparation of N–400 only! $250 each applicant”.¹  The receipt was labeled with the word “RECEIPT” in large block letters and contained the client's names.   The clients were told they would need to see a psychologist in order to support a claim for a medical waiver which would have exempted them from the English proficiency requirement.   They were referred to an Albanian speaking psychologist for a consultation and a determination as to their being able to qualify for a waiver.   Sometime later, reports were provided to the attorney which appeared to be false or fraudulent.   Upon the attorney's review of the reports, he concluded that they could not be submitted with the applications.   Ultimately, neither the applications nor the psychologist's report were submitted.   No further action was taken by the attorney with respect to this file.   The fees were not returned to the client, and the funds which had been provided to cover the filing fees for the applications were never presented.

The original panel found probable cause that the respondent violated Rules 1.2(2) and 1.4 of the Rules of Professional Conduct by failing to explain to the client that his representation in the matter would be limited to the preparation of an application.   The conclusion of the reviewing committee was that a violation of those sections was not supported by the evidence.

The original panel also found probable cause of a violation of Rule 1.3 based upon the attorney's failure to inquire into the discrepancy contained within the medical report.   The reviewing committee found that there was insufficient evidence to support a violation of that rule.

The original panel found probable cause for a violation of rule 1.5(b) in that the attorney failed to provide a written fee agreement explaining the scope of his services.   The reviewing committee did find a violation in this regard.   In its analysis of that violation, the reviewing committee found that there was no evidence of a written fee agreement.   In considering the question of whether the receipt mentioned above constituted a written fee agreement the committee concluded that “[a] receipt is not an adequate substitute for a written fee agreement.”   Additionally, the reviewing committee found that the attorney failed to disclose the scope of the representation and the basis or rate for the fees and expenses.   The committee rejected the argument that rule 1.5(b) did not apply since he ultimately declined to represent the complainant, and the committee relied in part on the fact the plaintiff did not return the fee.

The original panel also found probable cause for a violation of rule 8.4(4).   Again, they reviewing panel rejected that finding because of insufficient evidence.

A reprimand was issued on the basis of the reviewing committee's finding that the 1.5(b) was violated.   That decision was affirmed by the statewide grievance committee and this appeal followed.

Standard of review

The standard for reviewing a decision of the statewide grievance committee is set out in Connecticut Practice Book section 2–38.   That section provides the procedural framework for the timing and content of such appeals, and also the legal standard.  Practice Book section 2–38(f) states that:  “Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee or reviewing committee as to the weight of evidence on questions of fact ․” The standard to be observed by this Court is the “clearly erroneous” standard, that is a circumstance under which “the record contains no evidence to support [its decision], or in cases where there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 614 (2007).  “The court shall affirm the decision of the committee unless the court finds that the substantial rights of the respondent had been prejudiced because the committee's findings, inferences, conclusions or decisions are ․ clearly erroneous in light of the reliable, probative and substantial evidence on the whole record.”  Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 227 (2006).

Rule 1.5(b) states as follows:  “The 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, except when the lawyer will charge regularly represented clients on the same basis or rate ․” The appellant herein argues that the committee has substituted their requirement of a “written fee agreement” for the “writing” required by the rule.   Further, the appellant argues that the decision of the committee requires the description of services that might be rendered in the future in addition to those which comprise the current scope of representation.   The appellant's argument is essentially that the receipt is a sufficient writing under the rule.   Specifically, the appellant urges that the notation on the receipt which says “preparation of—400 only!” sufficiently sets forth the information required by the rule.   In contrast, the statewide grievance counsel urges that guidance as to the intent of the rule may be gleaned from the commentary.   In relevant part, the commentary states that “generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation.   A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.   Absent extraordinary circumstances the lawyer should send a written fee statement to the client before any substantial services are rendered, but in any event not later than 10 days after commencing the representation.”

Later in the commentary the exact circumstance presented by this case is anticipated. “․ for example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services will probably will be required, unless the situation is adequately explained to the client.”

In examining the facts and circumstances of this case the court finds that the reviewing committee's decision in which they conclude that the receipt does not constitute a written fee agreement is not clearly erroneous.   There is sufficient evidence in the record to find that the appellant knew of his obligation to prepare an agreement pursuant to the rule and failed to do so.   There is also sufficient evidence in the record the committee's conclusion that representation beyond the mere preparation of the forms was contemplated, albeit at an additional fee.   The necessity for clarifying scope of the representation is justified, not negated, by this fact.   Accordingly, the plaintiff's appeal is denied.

Robaina, J.

FOOTNOTES

FN1. “N–400” is a designation for a form submitted in support of an application for United States citizenship..  FN1. “N–400” is a designation for a form submitted in support of an application for United States citizenship.

Robaina, Antonio C., J.