Malpractice Small Claims – Statewide Grievance Committee and Restitution
Article By: Attorney Bruce H. Stanger and Law Clerk Ryan McKeen
Stanger Law., West Hartford, CT.
You represent a client in a Statewide Grievance Committee action against their former attorney. Your client’s claim arises from a personal injury action. Your client’s former attorney has cost your client their claim by letting a statute of limitations run. Your client’s case is too small to justify a lawsuit.
Can the Statewide Grievance Committee award your client compensation without requiring a separate proceeding?
Rules of the Superior Court section 2-37(2) gives the Statewide Grievance Committee the power to award restitution in sanctioning an attorney. The ABA Model Rules for Lawyer Disciplinary Enforcement, Rule 10 encourages the disciplinary process to facilitate restitution without requiring victims to institute separate proceedings at their own expense.
No standard exists as to when the Statewide Grievance Committee should order restitution. The ABA Standards for Imposing Lawyer Sanctions, which are frequently used by Connecticut Courts, permit flexibility and creativity in assigning sanctions in particular cases of attorney conduct.
The plain meaning of the word “restitution” offers little guidance as to when restitution should be employed as a sanction in a Statewide Grievance Committee action. The Restatement 3rd of Restitution notes that the word “restitution” is a term of art that has frequently proved confusing. Black’s Law Dictionary defines restitution as (1) return or restoration of something specific to its rightful owner or status; (2) Compensation for benefits derived from a wrong done to another; (3) Compensation or reparation for the loss to another.
The Statewide Grievance Committee has thus far refrained from awarding restitution as a means to compensate injured clients for their losses other than in a limited group of cases. Restitution has generally been employed as a sanction with the aim of returning property to its rightful owner or to prevent an attorney from benefiting from actions that violate his or her professional responsibility. Kurmay v. Lawler, Grievance Complaint #98-0928. Seemingly, the Statewide Grievance Committee has reserved restitution for cases in which an attorney is unjustly enriched by his or her misconduct and the client’s damages are easily calculable. Bieback v. Fink, Grievance Complaint #96-0756.
For example, the Statewide Grievance Committee has ordered restitution in cases when unreasonable or excessive fees have been charged, clients have paid for work an attorney did not do, for inappropriate charges, to pay outstanding bills, and to enforce an outstanding judgment of another court.
The Statewide Grievance Committee has had the opportunity to order restitution when an attorney has let a statute of limitations run on a personal injury claim. Orr v. Biro, Grievance Complaint #96-0967. When presented with this very issue, the Statewide Grievance Committee has employed the sanctions of reprimand and/or ordering an attorney to attend Continuing Legal Education.
Why has the Committee refrained from awarding restitution?
First, we assume the committee knows its primary purpose of a Statewide Grievance Committee proceeding is to discipline an attorney, not to compensate victims of attorney malpractice. Second, there is the practical difficulty of calculating the client’s damages. In a malpractice action against an attorney, an expert may have to be called to testify as to the amount of damages, if any, that an injured party should receive. Finally, courts in other jurisdictions have found that such matters should be properly heard by a trial court in order to afford the accused attorney a full array of rights and defenses. In the Matter of Ackerman, 263 Ind. 309, (1975).
The question then becomes: should the Statewide Grievance Committee award restitution?
Professionals generally and attorney’s in particular have lost the confidence of the public. As attorneys in a profession that looks to compensate injured parties, we should do whatever we can to provide a reasonable path for recovery.
We encourage the Statewide Grievance Committee to begin the process by considering its broad restitution powers in obvious cases. For example if a complaint was filed against an attorney for her failure to give appropriate notice to a UM carrier where there is a verdict in excess of the tortfeasors policy. Or even a simpler case, where the lawyer for a noteholder misses a statute of limitations in a claim against the debtor. The damages are obvious in these cases.
To start with, the Statewide Grievance Committee or a rules change could set some limitations such as only those matters where the complaining party seeks less than $10,000. Another limitation could be only in a situation where the damages are easy to calculate. Or if we truly want to tread lightly, the responding attorney could be asked if he agrees to a specified amount as restitution.
In a limited group of cases, just maybe we could show that the lawyers will be held accountable, without a complicated and expensive process of paying yet another lawyer to provide compensation for the mistakes of other members of the bar.