Carter v. Folcarelli

• Court: Rhode Island Supreme Court
• Writing for the Court: KELLEHER; JOSLIN, Justice, with whom BEVILACQUA
• Citation: Carter v. Folcarelli, 121 R.I. 667, 402 A.2d 1175 (R.I. 1979)
• Decision Date: 20 June 1979
• Docket Number: No. 79-40-M,79-40-M
• Parties: Frank A. CARTER, Jr., Chief Disciplinary Counsel, v. Giovanni FOLCARELLI. P.

Page 1175

402 A.2d 1175

121 R.I. 667

Frank A. CARTER, Jr., Chief Disciplinary Counsel, v. Giovanni FOLCARELLI.

No. 79-40-M.P.

Supreme Court of Rhode Island.

June 20, 1979.

[121 R.I. 676] Frank A. Carter, Jr., pro se.

Gerard P. Cobleigh, Warwick, for respondent.

OPINION

KELLEHER, Justice.

The respondent, Giovanni Folcarelli (Folcarelli), was licensed to practice law by this court on December 18, 1953. This matter is before us by reason of formal charges against Folcarelli citing violations of our Rule 47, the Code of Professional Responsibility (the code), which were filed by the Chief Disciplinary Counsel with the Disciplinary Board of the Supreme Court of the State of Rhode Island (the board). The charges were heard by one of the board's three-member hearing panels. Folcarelli and his attorney were present at the hearing.

The relevant evidence adduced at the hearing was undisputed. The hearing panel made findings and recommendations which, in turn, were adopted by the board. The board has forwarded to us its decision and recommendation. The board recommended public censure after finding that Folcarelli had (1) neglected a legal matter entrusted to him a violation of DR 6-101(A)(3) and (2) intentionally prejudiced or damaged his client during the course of a professional relationship a violation of DR 7-101(A)(3).

Following the receipt of the board's recommendation, we issued a show cause order, directing Folcarelli to appear before us in chambers and to show cause why he should not be disciplined. He appeared before us accompanied by counsel. At that time it was agreed that his counsel would be given the opportunity to file a brief. We acknowledge receipt of the brief.

The record indicates that at approximately 6:45 p. m. on September 10, 1970, Pasquale Forte (Forte) was operating his automobile in Cranston in a northerly direction along Reservoir Avenue. Forte's wife was seated alongside him. When Forte came to the point where Reservoir Avenue intersects Bridgton Road, he came to a stop prior to making a left-hand turn onto Bridgton. Within a matter of seconds the Forte vehicle was struck in the rear by a second vehicle, which, in turn had been hit from the rear by a third vehicle. Mrs. Forte injured her neck.

The next day Forte contacted Folcarelli, and he agreed to represent Forte and his wife. Forte told the panel that his wife had "tremendous pains" and he had "substantial" medical bills. As Forte received the bills, he forwarded them to Folcarelli. Forte said that sometime in 1971 Folcarelli told him that suit had been commenced. During that year Folcarelli became ill. When Forte heard of his attorney's illness, he spoke to him and suggested that if Folcarelli could not "handle the case," Forte would obtain another attorney. Folcarelli replied: "Don't worry about it, I'll take care of everything." Whenever Forte inquired about the status of the negligence action, he was told by Folcarelli: "It's in (Sic ) the court docket and you must wait your turn."

With each passing day, domestic tranquility at the Forte household came under a greater strain as the wife began to insist that they find another lawyer because the claims had been pending "too long." When Forte told Folcarelli that the delay in the Superior Court negligence case might lead to a domestic relations proceeding, he agreed to see the Fortes in his office. On May 2, 1975, a long-standing friendship between Forte and Folcarelli came to an end when Folcarelli informed his clients that at one point during his 1971 illness he had turned the Fortes' claim over to a second attorney, who had failed to file suit. The statute of limitations on everything but Forte's $100 property claim had long since expired.

The Fortes then commenced a malpractice action in the Superior Court against Folcarelli. On August 16, 1977, Folcarelli appeared in the office of the Fortes' attorney and gave a sworn deposition, a copy of which was introduced into evidence at the panel's hearing. In his deposition Folcarelli corroborated the testimony given by Forte. He conceded that Forte had contacted him several times with regard to how the case was proceeding. When Folcarelli was asked to identify the attorney to whom he had referred the Fortes' claim, he refused, saying: "I'm going to die with it." As a deponent Folcarelli insisted that his status reports to the Fortes were based upon the information given to him by the second attorney. He conceded that the only time he ever checked the files in the Superior Court to determine the status of the Fortes' claim was shortly before he broke the bad news to them.

Folcarelli offered no testimony at the hearing. Through counsel he conceded that he had neglected a matter committed to his care. However, in a statement to the panel, he insisted: "I can say one thing, most specifically, and that is, I never, ever intended to harm the Fortes intentionally, wilfully, or otherwise * * *." As the hearing concluded, a panel member, after noting that there was no evidence in the record as to the identity of the second attorney, asked Folcarelli's counsel if the record was to contain this gap. Following a pause during which counsel obviously consulted with his client, Folcarelli's counsel observed: "With the information that's contained in the deposition, we'll let the record stand as it is."

When Folcarelli appeared before us, his sole dispute was with the board's finding that he had violated DR 7-101(A)(3)'s mandate that "(a) lawyer shall not intentionally * * * (p)rejudice or damage his client during the course of the professional relationship * * *." He vigorously argued that there was no evidence to support such a finding.

Folcarelli's reference to the lack of evidence presented at the hearing confronts us with a question as to just what should be the applicable standard of proof by which unethical conduct should be measured. The board, acting pursuant to the terms of our Rule 42-4(c)(4), has adopted rules of procedure. The board's Rule 1.2 describes its proceedings as being "neither civil or (nor) criminal in nature but * * * quasi-judicial administrative proceedings." Whatever the board's verbiage, a decision by the board to recommend the imposition of a public disciplinary sanction carries with it serious implications for the attorney who is the subject of the recommendation. As a practical matter, the recommendation, if adopted, may limit, if not preclude, an individual's opportunity to practice his or her chosen profession. The recommendation leading to such a result should come only after careful deliberation and only in instances that warrant such a recommendation. Consequently, the standard to be applied by the board in its consideration of the evidence is that proof of unprofessional or unethical conduct must be established by clear and convincing evidence. See In re Sears, 71 N.J. 175, 197-98, 364 A.2d 777, 788-89 (1976).

In its decision the board acknowledged that the "intentional" charge presented a "more difficult" issue. The board's affirmative finding came after it had referred to the "high degree of responsibility owed by an attorney to his client" and measured that duty against Folcarelli's failure to check on the veracity of his co-counsel's reports before he told the Fortes that their claims were into litigation. In employing this approach, the board erred.

We take the words of the code as they are written. DR 6-101(A)(3) speaks of "(n)eglect," while DR 7-101(A) uses the term "intentionally." Canon 7 of the code stipulates that a lawyer should "represent a client zealously within the bounds of the law." The ethical considerations dealing with this duty are couched in magnificent rhetoric and remind the attorney that he "should exert his best efforts" ¹ and "should always act in a manner consistent with the best interests of his client." ² DR 7-101(A)(1) and (2) are phrased in terms that prohibit an attorney's intentional failure either to "seek the lawful objectives of his client through reasonably available means permitted by law" or "carry out a contract of employment entered into with a client for professional services." When one compares the language of DR 7-101(A)(1) and (2), which says that "(a) lawyer shall not intentionally * * * (f)ail," with DR 7-101(A)(3)'s admonition that "(a) lawyer shall not intentionally * * * (p) rejudice or damage his client," it is obvious that there must be clear and convincing evidence in this record which would support an inference that Folcarelli, in his conversations with the Fortes, was deliberately misrepresenting the status of their claims. However, the board at no time gave any indication that it believed Folcarelli was anything less than truthful when in his deposition he swore that the information he gave the Fortes was based solely on the reports given him by the second attorney. Consequently, we must vacate the board's finding of intentional prejudice or damage.

The only issue to be resolved deals with the sanction to be imposed.

We have informed the board that its finding as to DR 7-101(A)(3) lacked the requisite evidentiary support and asked the board what effect, if any, this finding might have on its recommendation of public censure. The board has informed us that it still adheres to its original recommendation.

Although we accord great weight to the board's recommendation, the ultimate responsibility in this area is ours. The primary purpose of discipline is not punishment; it is the protection of the public and those charged with the administration of justice. In re Levin, 116 R.I. 949, 951, 359 A.2d 360, 362 (1976). However, discipline also serves to deter the respondent from committing similar acts in the future and acts as a restraining influence on others. State ex rel. Oklahoma Bar Association v. Hall, 567 P.2d 975, 978 (Okl.1977). In determining the appropriate disciplinary sanction, several factors are taken into consideration,...