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Gina Bunch, Complainant vs. Steven Levy, Respondent

Gina Bunch, Complainant vs. Steven Levy, Respondent

STATEWIDE GRIEVANCE COMMITTEE
Gina Bunch, Complainant vs. Steven Levy, Respondent
Grievance Complaint #04-0871

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, 1061 Main Street, Bridgeport, Connecticut on July 13, 2005. The hearing addressed the record of the complaint filed on September 7, 2004, and the probable cause determination filed by the Litchfield Judicial District Grievance Panel on November 16, 2004, finding that there existed probable cause that the Respondent violated Rules 4.1(1) and 4.4 of the Rules of Professional Conduct.

Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on June 6, 2005. Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Patricia King pursued the matter before this reviewing committee. The Complainant and the Respondent appeared and testified. The Respondent was represented by Attorney James T. Flaherty. This reviewing committee also heard testimony from Jeffrey Bunch, Attorney Brian McCormick, Attorney Michael Sconyers, Nancy LaGanga and Joseph Fortuna. One exhibit was admitted into evidence. Additionally, two cassette tapes were marked as exhibits for identification, but were not admitted as full exhibits and, accordingly, were not considered by this reviewing committee.

Reviewing committee member William Carroll could not be present for the entire hearing on July 13, 2005. Since Mr. Carroll's participation was not waived, Mr. Carroll reviewed the transcript in this matter and participated in rendering this decision.

Both the Office of the Chief Disciplinary Counsel and the Respondent's counsel submitted pre-hearing memoranda. The Disciplinary Counsel subsequently sought to file a supplemental pre-hearing memorandum on July 12, 2005. Having been filed untimely, the supplemental memorandum was not distributed to the reviewing committee. At the hearing on July 13, 2005, the Respondent's counsel objected to the supplemental memorandum being considered by the Respondent, and the Disciplinary Counsel thereupon withdrew the submission. Post-hearing briefs were filed by both the Disciplinary Counsel and the Respondent's counsel.

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

The Complainant was involved in a contentious marital dissolution. The Complainant was represented by Attorney Brian McCormick. The Respondent represented the Complainant's ex-husband, Joseph Fortuna. The parties were at Litchfield Superior Court on July 19, 2004 due to a pending post-dissolution motion. A conference was held with Nancy LaGanga, the Family Services Supervisor in Litchfield, which was described as "animated." During the course of the conference, the Complainant questioned the need for psychological evaluations. The Respondent replied to this by stating words to the effect that "someone in this room has a psychological problem" while staring at the Complainant. The Respondent then began humming the theme to the "Twilight Zone" television show. Both Attorney McCormick and the Complainant heard the Respondent's humming. Later, the Complainant and her current husband, Jeffrey Bunch, were sitting in the hallway of the courthouse. The Respondent walked by them, and again began humming the "Twilight Zone" theme.

One of the issues that was discussed on July 19th involved reimbursement of the children's medical expenses, the receipts for which the Complainant's attorney had turned over to the Respondent. The Respondent objected to paying for one of the items on a Walgreen's receipt, claiming that it was for condoms for the Complainant's use. When informed of this by her attorney, the Complainant stated that the item in question was for skin cream for one of her children. During the lunch break, the Complainant contacted Walgreen's and confirmed that information. When informed of this while meeting in the court library after lunch, however, the Respondent continued to maintain that the item was for condoms, stating words to the effect of "I know they're for condoms."

This reviewing committee also considered the following:

During the lunch break on July 19th, the Respondent was smoking a cigarette near the entrance to the courthouse when the Complainant was exiting the building. As the Complainant walked by the Respondent, his cigarette made contact with the Complainant's hand causing a burn. The Complainant and the Respondent disputed who was to blame for the incident. The Respondent's law partner, who was standing with the Respondent at the time, sarcastically stated words to the effect of "he [the Respondent] did it on purpose" and he and the Respondent laughed. When the Complainant subsequently asked the Respondent to apologize for the burn, the Respondent stated words to the effect of "I'm sorry you ran into my cigarette."

During the proceeding, the Respondent claimed to have a tape recording which portrayed the Complainant in a poor light regarding her parenting. The Complainant and Attorney McCormick requested copies of the tapes, but they were not provided. Instead, the Respondent provided the tapes to the guardian ad litem. The Complainant's attorney did not file a formal request with the court for the tapes.

In his initial answer to the grievance complaint, the Respondent stated that he did not recall specifically what was said or discussed at the conference on July 19, 2004. In his testimony at the hearing before this reviewing committee, the Respondent denied humming the "Twilight Zone" theme song, either in the meeting or in the hall. The Respondent acknowledged that he made no independent investigation of the condom issue, relying instead on what his client told him.

The Respondent's client, Joseph Fortuna, testified that he did not hear any humming by the Respondent. Mr. Fortuna stated that he was not sure what the medical item on the receipt was for and that he thereafter called a local CVS pharmacy and described the item to them and was told that the only thing which fit the description was condoms. Mr. Fortuna thereafter told the Respondent to relay to the Complainant that he was not going to pay for condoms. At the hearing before this reviewing committee, Mr. Fortuna acknowledged that he had no direct verification that the item was for condoms, only a conversation with a CVS druggist about a Walgreen's bill.

Ms. LaGanga testified that she did not hear the Respondent hum the "Twilight Zone" theme at the conference on July 19, 2004, but she acknowledged that the conference was at times somewhat chaotic and that it was possible she could have missed such conduct.

The guardian ad litem, Attorney Michael Sconyers, testified that he did not hear the Respondent hum, but he admitted to being biased against the Complainant due to issues arising during the course of the matter. He also acknowledged that the conference was "lively" and occasionally got out of hand. With regard to the tapes, he learned of them at the conference and received copies shortly thereafter.

The Complainant's current husband, Jeffrey Bunch, testified that he was present in the hallway on the 19th with the Complainant and heard the Respondent humming the "Twilight Zone" theme as he walked by them.

This reviewing committee concludes by clear and convincing evidence that the Respondent violated the Rules of Professional Conduct. The Respondent's humming of the "Twilight Zone" theme towards the Complainant, on two separate occasions, had no substantial purpose other than to embarrass or burden the Complainant, in violation of Rule 4.4 of the Rules of Professional Conduct. In this regard, this reviewing committee found Attorney McCormick's testimony to be the most credible. The other witnesses, with the exception of Ms. LaGanga, had inherent or acknowledged biases. While the reviewing committee has no reason to doubt Ms. LaGanga's testimony, it concludes that, given the sometimes chaotic nature of the conference on July 19, 2004, the Respondent's conduct could easily have escaped her observation. The humming itself had no reasonable or acceptable relationship to the issue of psychological evaluations, and was a juvenile and churlish attempt by the Respondent to impute psychological problems to the Complainant. The Respondent's conduct in this regard was an obvious and unethical attempt to embarrass or burden the Complainant.

The reviewing committee further concludes that the Respondent's repeated assertions that the item on the medical receipt was for condoms were false statements of material fact in violation of Rule 4.1(1) of the Rules of Professional Conduct. The obligation of an attorney to zealously represent a client does not extend to asserting fabrications. The Respondent conducted no independent investigation, and relied on a client whose source of information consisted of nothing more than an informal inquiry with a pharmacy other than the one which generated the receipt. This was not an issue of opinion, but rather an easily verifiable factual matter. When confronted with reliable information, an inquiry with the proper pharmacy, the Respondent not only ignored that information but continued to make assertions of first-hand knowledge of the situation when in fact he had none.

This reviewing committee is unable to conclude that the incidents involving the cigarette burn or the tapes constitute misconduct. There is no indication that the cigarette burn was intentional. While the Respondent's conduct regarding the cigarette burn may have been rude and boorish, this reviewing committee is unable to find that such conduct rises to the level of an ethical violation. Regarding the tapes, while it certainly would have been preferable for the Respondent to produce the tapes to the Complainant's attorney, it does not rise to the level of an ethical violation given that no formal demand was made for their production.

The Respondent is reprimanded for violating Rules 4.1(1) and 4.4 of the Rules of Professional Conduct.

DECISION DATE: 1/6/06


Attorney Noble F. Allen


Attorney Raymond B. Rubens

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Mr. William J. Carroll