Smigelski v. DuBois
To prevail on a motion to set aside or for a new trial, a plaintiff may be required to prove, by a preponderance of the evidence, that evidence could not have been discovered earlier as a result of due diligence. Stanley Kosiorek hired the plaintiff, Attorney Jacek Smigelski, to handle a real estate closing. Smigelski allegedly charged a one-third contingency fee of $66,838 for his legal services. Kosiorek filed a grievance complaint, alleging that Smigelski charged an excessive fee and converted estate funds. Smigelski had his license to practice law suspended. Smigelski's complaint alleged that Kosiorek fraudulently testified that an appraiser valued the estate property at $170,000, although Kosiorek knew about an appraisal that valued the estate property at $254,000. (Kosiorek's trial testimony about the $170,000 valuation was stricken.) Smigelski alleged that disciplinary counsel possessed the duty to disclose exculpatory information, pursuant to the due-process clause of the Connecticut Constitution, and engaged in fraud, in violation of Rule 3.4 of the Rules of Professional Conduct, because he helped a witness testify falsely. Smigelski requested that the court set aside the decision to suspend his law license or order a new trial. The court found that the appraisal did not constitute newly discovered evidence. The plaintiff reasonably could have discovered the appraisal in preparation for his presentment to the Superior Court. Assistant Bar Counsel Elizabeth Rowe asserted that information about payment for the appraisal was sent with the grievance complaint to Smigelski, via certified mail, and that Smigelski filed an answer to the grievance complaint. "It is clear," wrote the court, "that the plaintiff had the opportunity to investigate the appraisal and use it during the trial." Evidence in the record failed to substantiate allegations that judgment was obtained as a result of fraud. "[C]harging a contingent fee in a land transfer matter," wrote the court, "is grossly inappropriate." The plaintiff, who hired an attorney to represent him and received hearings from a local panel, the Statewide Grievance Committee and the Connecticut Superior Court, failed to establish his due-process rights were violated. The court granted the defendant's motion for summary judgment.