Sunday, April 7, 2019

Court Rules Against Attorney In Civil Misappropriation Case That Was Whitewashed In Bar Discipline

The Connecticut Appellate Court affirmed a verdict favoring a former client who had filed a civil claim of misappropriation

The parties’ fee agreement provided for a contingent fee of 40 percent. Id. On June 29, 2004, an arbitration panel awarded Yuille $1,096,032.93 in damages. Id., 153. Parnoff sent an invoice to Yuille that included an attorney’s fee representing 40 percent of the gross settlement proceeds. Id. Yuille objected to the fee and Parnoff subsequently brought an action against Yuille to recover the fee. Id., 154. Parnoff’s action alleged breach of contract, quantum meruit and bad faith. Id., 154–55. Following a trial, the jury found in favor of Parnoff on the breach of contract counts and, thus, did not reach the quantum meruit count. Id., 157–58.

On appeal, this court held that the parties’ fee agreement exceeded the cap contained in General Statutes § 52-251c and, therefore, was unenforceable as against public policy. Id., 169, 172.

After remand

The trial court later rendered judgment for Yuille on the quantum meruit count, which this court affirmed on appeal, concluding that an attorney ‘‘who is barred from contract recovery because of the contract’s failure to comply with the fee cap statute cannot recover under the doctrine of quantum.

For the attorney, things went from bad to worse

In 2013, Yuille commenced the present action alleging that Parnoff had misappropriated funds that had been held in escrow pending resolution of the parties’ fee dispute. The operative amended complaint alleged conversion, statutory theft pursuant to General Statutes § 52-564,4 and breach of fiduciary duty. At the conclusion of the evidence, the court denied Parnoff’s motion for a directed verdict. The jury returned a verdict in favor of Yuille on the counts alleging conversion and statutory theft, and for Parnoff on the count alleging breach of fiduciary duty. The court subsequently rendered judgment for Yuille on the conversion and statutory theft counts in the total amount of $1,480,336.37.

Parnoff then filed the present appeal. Additional facts will be set forth as necessary.

The court rejected the attorney's claims regarding his counsel's withdrawal

Specifically, after noting the complicated history between these parties and the disputed attorney’s fees, the motion indicated that in December, 2016, Parnoff had advised in writing that the law firm was required to obtain his authorization prior to performing any further work on his file. After attending the status conference in which the matter was ordered to trial, Lynch indicated that he repeatedly requested authorization from Parnoff to work on the file; Parnoff, however, did not provide the necessary authorization. Under these circumstances, Lynch and the law firm requested permission to withdraw their appearance in this matter.

He thus was the author of his own travails

we disagree with Parnoff that the court abused its discretion by ordering this matter to trial. It is important to note that six years had elapsed between June 29, 2004, the date that Yuille received her arbitration award in this matter; Parnoff I, supra, 139 Conn. App. 153; and July 26, 2010, the date that Parnoff misappropriated the funds that had been placed in escrow pending resolution of the parties’ dispute. Another six and one-half years had passed before the court’s January 26, 2017 order directing that this matter was scheduled for trial. During this time, in addition to Parnoff I, supra, 147, and Parnoff II, supra, 163 Conn. App. 273, Yuille had also filed a grievance against Parnoff, alleging that he had violated the Rules of Professional Conduct by transferring and commingling the funds; this proceeding resulted in a formal reprimand being issued against Parnoff. Disciplinary Counsel v. Parnoff, 324 Conn. 505, 511, 513, 152 A.3d 1222 (2016). Moreover, Parnoff, an attorney with an active law license, as noted by the trial court, was a party to all of this litigation and would have had firsthand knowledge of the underlying proceedings and complicated history involving the disputed funds.

And rejected his "inconsistent verdict" contentions

It was a reasonable hypothesis for the jury to believe that at the time Parnoff converted the funds in 2010, he was no longer acting as Yuille’s attorney. Accordingly, because the jury’s answer to the interrogatory can be harmonized with the verdict, Parnoff cannot prevail on his claim that the verdict is irreconcilably inconsistent.

Notably (and I would have to say lamentably) Disciplinary Counsel v. Parnoff has the bar discipline story which involved the taking of the funds after the attorney had won the trial verdict that was reversed on appeal

“[The defendant] held the funds in escrow continuously [until] July 26, 2010, when the Chase Certificate of Deposit containing the funds, then in the amount of $363,960.87, was not renewed. The funds were transferred into [the defendant's] personal savings account.

As to knowing misappropriation

In the present case, the disciplinary proceeding before the court involved the defendant's alleged violation of rule 1.15(f) of our Rules of Professional Conduct. The alleged violation was based on (1) the defendant's failure to continue to safeguard funds that were the subject of the parties' long-standing fee dispute in an escrow account and (2) the commingling of those funds with the defendant's personal funds. The court found by clear and convincing evidence that the defendant had failed to keep the disputed fees in escrow and that he impermissibly allowed those funds to be transferred into his personal bank account. As Disciplinary Counsel aptly notes in her brief, scienter is generally not required to establish a violation of our rules of professional responsibility; see Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 211, 804 A.2d 1027 (2002); and the court did not require Disciplinary Counsel to prove as much in concluding that the defendant had violated rule 1.15(f).

In so ruling, however, the court, in essence, emphasized that the defendant lacked the knowledge that the funds belonged to Yuille. The court explained that the parties' fee dispute had a tortuous and very confusing procedural history, and that the defendant had acted in this case on the basis of an unreasonable belief that he no longer was required to maintain the disputed funds in the escrow account. Put in other terms, the court found that the defendant acted with carelessness rather than with the awareness necessary to find that the defendant violated Practice Book § 2–47A. Having made these findings, the court expressly found that the defendant's conduct “[d]id not give rise to a knowing misappropriation of funds pursuant to Practice Book § 2–47A.”

...In short, Disciplinary Counsel has failed to convince us that the court applied an incorrect legal standard in determining that the defendant's actions in the present case did not amount to a knowing misappropriation. Accordingly, her claim fails.

As did Disciplinary Counsel's other contentions

Finally, Disciplinary Counsel claims that a reprimand was an insufficient sanction given that the defendant unilaterally and unreasonably determined that the fee dispute had been resolved and allegedly misappropriated $363,760.86 of his client's funds. Accepting, as we must, the facts found by the court, we are not convinced that the court abused its discretion by only reprimanding the defendant.

Closing whitewash

In the present case, the court heard three days of testimony and arguments regarding the defendant's actions as they pertained to his safeguarding of the funds in dispute. This included testimony from the defendant. The court found that although the defendant failed to exercise properly his fiduciary and professional responsibilities to keep the disputed funds safe and separate from his personal account, he did not engage in a knowing misappropriation of the funds; rather, his conduct was negligent, based on a unreasonable belief that he no longer was required to keep the disputed funds in escrow. As we have already indicated in part II A of this opinion, the court's finding that the defendant's actions were negligent is supported by the record as a whole and, when viewed with the requisite presumption of correctness, rationally supports the court's exercise of its discretion to impose a more lenient sanction. Accordingly, we cannot conclude that the court's imposition of reprimand rather than the suspension or disbarment sought by Disciplinary Counsel was a clear abuse of discretion.

Our review of the record leaves us with no doubt that the actions of the defendant were, at best, unreasonable. We also fully agree with the statements of the court in In re Wilson that misappropriation of a client's funds cuts to the very heart of the trust that the public places in attorneys every day and in our legal system generally.  It is a fundamental duty of attorneys to safeguard and protect with the utmost diligence any property held by the attorney on behalf of his or her clients. “[T]he fiduciary relationship between an attorney and a client requires absolute perfect candor, openness and honesty, and the absence of any concealment or deception.” (Internal quotation marks omitted.) Disciplinary Counsel v. Smigelski, 124 Conn.App. 81, 89–90, 4 A .3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S., 132 S.Ct. 101, 181 L.Ed.2d 28 (2011). Nevertheless, the mere fact that a more severe sanction might have been justified given the nature of the violation does not mean that the court here manifestly abused its discretion in imposing a lesser sanction or that the discipline imposed amounted to an injustice that must be remedied by a reversal.

"At best, unreasonable" is, at best, a timid approach to enforcing a sacred fiduciary obligation. 

The Connecticut Supreme Court affirmed the above-recited conclusions of the Appellate Court. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/04/the-connecticut-appellate-court-the-parties-fee-agreement-provided-for-a-contingent-fee-of-40-percent-id-on-june-29-20.html

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