Jacek I. Smigelski had his law license suspended for trying to collect fees of more than $70,000 for doing legal work that saved a client a mere $10,000. But while that case turned off Smigelski’s ability to work as a lawyer, it has turned on a gusher of pro se litigation.
On his odyssey through the justice system, Smigelski has questioned the actions of, or outright sued, judges at all levels of the state court system, ranging from a probate judge to a former chief justice. He’s been warned that he’s committing “professional suicide,” but he says he’s not close to giving up.
“I’m stubborn. I don’t like to quit,” he said in a recent interview.”But I’m not a monster.”
In January, he field a federal civil rights lawsuit naming former Supreme Court Chief Justice Ellen Ash Peters, Supreme Court Justice Lubbie Harper Jr., former Appellate Court Judge Thomas Bishop, as well as the Office of Chief Disciplinary Counsel. Smigelski alleges they violated his constitutional rights by ruling he was not entitled to the full fee in a case involving a dispute over an estate. He has also sued former Chief Disciplinary Counsel Mark Dubois for prosecuting a grievance against him.
Two other Smigelski appeals were decided last week by the Connecticut Appellate Court. They upheld four judges’ lower court rulings against him, and applied the Connecticut Unfair Trade Practices Act to Smigelski’s legal fee arrangement, despite CUTPA’s broad “professional services” exemption for most legal practice disputes.
The panel also ruled that Smigelski’s efforts to examine a probate judge’s opinion-writing is shielded by a judicial privilege so powerful that few litigants anywhere have ever challenge it.
Smigelski says he’s preparing briefs asking the court to reconsider its decisions. “I can’t discuss the merits, but I think they’re totally off the wall,” he said.
At 6-foot-4, Smigelski, 57, stands out in Connecticut’s legal community. He speaks with a pronounced Polish accent, having emigrated to the U.S. at age 21. He says he earned a B.S. in marketing at the University of Hartford in 18 months, in 1980, and graduated from the University of Connecticut School of Law in 1987.
An avid baseball fan, his paper-strewn second floor notary public office on New Britain’s Main Street is decorated with baseball memorabilia, and he says he’s still active with the amateur New Britain Polonia Falcons soccer team.
The spate of litigation dates to 2006, when Stanley Kosiorek hired Smigelski to attempt to get clear title to the Plainville home of his late father, Stanislaw Kosiorek. After his death at 83, the elder Kosiorek left his children shocking news. Unbeknownst to them, he married six weeks before, and purportedly conveyed a life interest in the house to his 64-year-old bride. The house was the estate’s main asset.
Stanley Kosiorek, as executor of the estate, entered into a written fee agreement in which Smigelski sought $225 an hour or one-third of the sale price, on a contingent basis. Kosiorek would later tell the courts he thought he was being charged only by the hour.
The estate’s first lawyer had negotiated for a year, and recommended that the family settle with the bride by paying her something less than $40,000. The bride had set her price at $45,000. Smigelski ultimately got her to settle for $35,000.
From there, it gets complicated. The house was sold within the family, Smigelski handled the sale and had access to the mortgage money. When he went on to compute his one-third contingency fee, the calculations were anything but straight-forward. For example, he disregarded the actual sale price of the house. Instead, he used an earlier, higher $257,000 market analysis estimate. He also added a $1,005 “probate fee,” but subtracted an already paid $5,000 retainer and a $14,832 “courtesy discount.”
The bottom line on his legal bill was $66,838, which Smigelski placed into one of his accounts.
After the newlywed widow received her cut, the estate was left with proceeds of $88,462. That was far less than the $155,000 that Stanley Kosiorek had expected to receive.
Appellate Court judge Alexandra DiPentima, writing for a unanimous panel, said Kosiorek was “speechless and stunned” at the size of the legal bill and the fact that Smigelski banked the funds in his own account. Kosiorek then hired New Britain’s William J. Sweeney Jr., who helped launch grievance, probate and civil actions against Smigelski.
In the grievance action, Smigelski had his bar license suspended for 15 months, though the clock didn’t start ticking until March 2011, when a judge rejected his appeal of the decision by the Statewide Grievance Committee. He’ll evenutally have to apply to have his license reinstated.
In probate court, Plainville Judge Heidi Famiglietti also ruled against Smigelski, saying that a reasonable fee in the estate case would have been $15,000 plus $1,000 in costs.
When Smigelski refused to return the extra $54,000, the Kosiorek family sued, and Smigelski counter-sued. During the civil trial, Sweeney called Probate Judge Famigietti to testify as a fact witness in the fee dispute. When she started to read her probate decision to the jury, Smigelski attempted to question her about whether she actually wrote it. “It’s a matter of evidence. We deserve to know who wrote the decision,” Smigelski said recently, suggesting that the state Probate Court Administrator’s Office might have had a hand in crafting the ruling.
From the bench, New Britain Superior Court Judge Cynthia Swienton ruled his line of questioning out of order. “Going behind a judge’s decision … is just like the A-number-one thing that people are not allowed to do. I mean, that’s going into the thought process of a judge in issuing a decision, and that is not something that is allowed ever, ever,” Swienton stated.
Ultimately, the jury sided with the estate on five counts and Smigelski was ordered to pay roughly $300,000.
Smigelski then took two cases to the state Appellate Court. A three-judge panel consisting of Peters, Harper and Bishop ruled in 2010 that there was no “nexus” — rational connection — between Smigelski’s contingent fee and the services rendered. It upheld the chief disciplinary counsel’s finding that Smigelski violated ethics rules against charging unreasonable fees and not safekeeping clients’ property.
Smigelski also contended on appeal that allowing Famiglietti to testify at the civil trial rewarded a “backdoor” attempt by Sweeney to provide an expert opinion through a fact witness. Smigelski said he was improperly denied the right to cross-examine a witness. DiPentima’s appellate panel, which included judges Joseph Pellegrino and Beth Alvord, found both claims meritless.
Unfair Trade Applies
The Appellate Court also upheld a trial court finding that Smigelski’s unusual fee agreement was subject to CUTPA, which, if violated, can result in double or treble damages. Connecticut’s CUTPA case law provides a broad “professional services” exception, which exempts attorney misbehavior that can be characterized as professional negligence or malpractice.
Furthermore, because the legal profession is regulated by the courts, the lawyers’ professional exemption from CUTPA is mandated by constitutional separation of powers. However, in the “entrepreneurial” aspects of professional practice, including advertising and billing matters, CUTPA will apply to legal matters.
Connecticut’s body of case law on unfair trade practices is the most extensive of any state, according to Hartford lawyer Robert M. Langer, of Wiggin and Dana, a co-author of the unfair trade practices volume of the Connecticut Practice Series.
“Billing, collection and some, but not all, advertising, such as client solicitation, will be deemed entrepreneurial and thus on the CUTPA side of the line,” Langer said. “Bad performance by a professional, such as an attorney, is not cognizable” as a CUTPA claim.
The court ultimately decided that this was a billing issue. Kosiorek presented evidence that Smigelski failed to provide him with the entire fee agreement or to explain the nature of the contingency agreement at the time it was executed, the Appellate Court noted. Also, evidence indicated Smigelski had “not kept accurate time records, paid himself an unreasonable fee and refuse to return the disallowed fee to the estate.”
The court’s formula for finding CUTPA applicability here was twofold: an unfair or deceptive trade practice, plus a basis for estimating the damages suffered. Both were present here, the court found.
“The decision certainly says that a lawyer who plays around with a contingency fee agreement can be held liable on a CUTPA claim, because [the judges] held it involved the entrepreneurial aspects of legal practice,” said Sweeney, a former president of the Connecticut Trial Lawyers Association. “The contract in question was absurd. What this case is saying to lawyers is, if you’re going to draw up an absurd contract for a client and think you’re going to get away with it, you’re subject to a CUTPA charge.”
Civil Rights Claim
In January, Smigelski filed his federal civil rights claim against former Chief Justice Peters, Justice Harper and Judge Bishop. He alleged the judges’ application of CUTPA violated his rights under the Commerce Clause, depriving him of a legal fee to which he is constitutionally entitled.
Even before Smigelski sued the state judges and the state of Connecticut, one trial court judge had a word of warning from the bench, says Sweeney: “He told Smigelski, `You’re committing professional suicide.’ Now this guy’s done more than that. He’s become more like a suicide bomber. Sue Judge Peters? Give me a break.”
In May, Assistant Attorney General Phillip Miller, representing the state in the lawsuit, argued that the federal claim is barred by sovereign and judicial immunity, and because the federal courts should abstain from hearing this matter being tried in the state courts.
Smigelski, pro se because he is suspended from practice, urged the court to read his complaint “in a most liberal fashion” — that is, to forgive small, technical errors — due to his non-lawyer status. Miller countered that kid glove treatment should not be granted to a trained attorney whose non-lawyer status is due to license suspension.
Miller urged U.S. District Judge Robert N. Chatigny to dismiss the case, but there’s been no ruling on that motion yet.
“People say I’m a bad man for fighting this,” said Smigelski. “Even a bad man is entitled to a fair trial.”•