Caus v. Paul Hug d/b/a Hug Construction Company, Hug Contracting Company, Crown Asphalt Paving, LLC, P. Hug Contracting, LLC

CASE NO. 5392 CRB-4-08-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 23, 2009

ALBERTO CAUS

CLAIMANT-APPELLEE

v.

PAUL HUG d/b/a HUG CONSTRUCTION COMPANY, HUG CONTRACTING COMPANY, CROWN ASPHALT PAVING, LLC, P. HUG CONTRACTING, LLC

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John Bochanis, Esq., and Thomas Weihing, Esq., Daly, Weihing & Bochanis, 1776 North Avenue, Bridgeport, CT 06604.

The respondent-employer was represented by Robert Jahn, Esq., Morrison Mahoney LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.

The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not appear at oral argument.

This Motion to Withdraw Appearance, regarding the Petition for Review from the October 23, 2008 Finding and Award of the Commissioner acting for the Fourth District, was heard May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

RULING ON MOTION TO WITHDRAW APPEARANCE

JOHN A. MASTROPIETRO, CHAIRMAN. Counsel for the respondent employer in this matter has requested permission to withdraw as the respondent employer’s legal representative.1 In support of the motion, counsel contends that the Connecticut Rules of Professional Conduct § 1.16(b)(5) and § 1.16(b)(6) permit a lawyer to withdraw from representation if:

Except as stated in subsection (c), a lawyer may withdraw from representing a client if: (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. . . . (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. . .

At the outset we note that the provisions of § 1.16 address permissive withdrawals from representation, i.e., permitting counsel to withdraw from representation is a matter that is within the discretion of the tribunal.

Rule 1.16(b) of the Rules of Professional Conduct allows an attorney to withdraw from a case with the court’s permission. An attorney, however, must demonstrate good cause for the request and notice to the party. Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 340, 160 A.2d 899 (1960). It is within the court’s sound discretion whether to grant or deny the motion. See id.; see also Matza v. Matza, 226 Conn. 166, 184, 627 A.2d 414 (1993).

Hammick v. Hammick, 71 Conn. App. 680, 685 (2002).

Our review of the documents filed by counsel in the prosecution of this appeal reflect that counsel’s client is alleged to be the employer of a party who claims to have sustained an injury covered under our Workers’ Compensation law. Counsel’s client, Hug Construction, argued in the proceedings before the trial commissioner that no employer-employee relationship existed between the respondent Hug Construction2 and the claimant. In the October 23, 2008 Finding and Award in this matter, the Commissioner acting for the Fourth District concluded, inter alia, the claimant was an employee of the respondent Hug Construction on June 25, 2004, the date of injury.

On November 6, 2008 counsel, on behalf of the respondent Hug Construction, filed a Petition for Review. As part of the prosecution of the appeal, counsel also filed a Motion To Correct and a Motion For Extension of Time to File Reasons for Appeal. Those motions were filed November 6, 2008 and November 7, 2008 respectively. On December 18, 2008 counsel filed his request to withdraw his appearance. That request to withdraw was heard at oral argument as part of this board’s May 29, 2009 docket.

Counsel’s request to withdraw asserted that he was unable to contact and thereby communicate with his client and had not been paid by the client. At oral argument counsel conceded that his attempt to notify his client of the pending request to withdraw was limited to certified mailing at the client’s last known address. The mailing was returned to counsel and marked as “Return to Sender, Unclaimed, Unable To Forward.”3

Practice Book § 62-9 provides in pertinent part:

[No] attorney whose appearance has been entered on the docket shall withdraw his or her appearance without leave of the court. A motion for leave to withdraw shall be filed. . . . The motion shall include the current address of the party as to whom the attorney seeks to withdraw. No motion for leave to withdraw shall be granted until the court is satisfied that reasonable notice has been given to the party being represented and to other counsel and pro se parties of record.

We note that counsel initiated an appeal on his client’s behalf on or about November 6, 2008. Presumably, before taking the appeal, counsel consulted with his client. Yet, approximately six weeks later, counsel argues, in part, his client was not fulfilling his obligations as a client as counsel was unable to communicate with his client.

Counsel has failed to persuade us that reasonable notice has been given to the client of counsel’s request to withdraw from representation. Nor has counsel persuaded us that the continued representation of the client before this board and the client’s failure to comply with his obligation to pay counsel’s fees will result in the imposition of an unreasonable financial burden. We, therefore, deny counsel’s request to withdraw from representation of the respondent.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur.

1 We note that counsel sent a document dated December 10, 2008 and received in this office December 18, 2008 captioned as “Withdrawal of Appearance.” The sum and substance of the body of the document indicated that counsel’s law firm, Morrison, Mahoney, LLP, “respectfully withdrawal (sic) their appearance.” Following receipt of this document, this board sent a letter to respondent’s counsel indicating that the board would consider his filing as a motion to withdraw representation. (Emphasis ours.) Thereafter, the board heard oral argument on the motion and it is from that hearing that this ruling results. See, Ruling re Counsel’s Motion to Withdraw Appearance in Blades v. Redman & Turnquist, 5163 CRB-2-06-11 (August 21, 2007). BACK TO TEXT

2 In ¶ B of the October 23, 2008 Finding and Award the Commissioner acting for the Fourth District found the following:

I find that the respondent, Paul Hug, did business on or about June 25, 2004 as Paul Hug, Paul Hug d/b/a Hug Construction Company, Hug Contracting Company, Crown Asphalt Paving, LLC, and P. Hug Contracting LLC, collectively known as the respondents or as the respondent. BACK TO TEXT

3 The document to which we refer is a photo static copy of an envelope appended to counsel’s memorandum of law filed March 19, 2009. BACK TO TEXT