195 Conn.App. 416
Conn. App. Ct.2020Background
- Harold H. Burbank II, admitted in Maine and Connecticut, owned disputed waterfront property in Maine; he represented himself on appeal to the Maine Supreme Judicial Court.
- The Maine Supreme Judicial Court affirmed the underlying judgment, found Burbank engaged in repeated appellate misconduct (frivolous arguments, filing extra-record materials, attempting to represent others), and ordered sanctions.
- Maine’s Board of Overseers of the Bar held a de novo disciplinary hearing and suspended Burbank from the Maine bar for 12 months.
- Connecticut Chief Disciplinary Counsel sought reciprocal discipline under Practice Book § 2-39; the Connecticut Superior Court held a hearing and imposed a 12‑month suspension, retroactive to the Maine order.
- Burbank appealed only on constitutional grounds, claiming the discipline violated his First Amendment petition/speech rights and his Fourteenth Amendment due process/equal protection rights because he was acting pro se.
- The Connecticut Appellate Court affirmed, holding he failed to establish any defense by clear and convincing evidence and reaffirming that attorneys are bound by professional rules even when representing themselves.
Issues
| Issue | Plaintiff's Argument (Chief Disciplinary Counsel) | Defendant's Argument (Burbank) | Held |
|---|---|---|---|
| Whether reciprocal suspension based on conduct while pro se violates the First Amendment (petition/speech) | Reciprocal discipline is proper; rules apply to attorneys even when pro se and discipline furthers protection of courts/public | Burbank: acting as a private citizen and pro se, his appellate filings were petition/free speech protected and cannot be basis for attorney discipline | Held: Rejected. No authority that disciplinary rules cannot apply to attorneys who appear pro se; attorneys remain bound by the Rules of Professional Conduct when self‑represented. |
| Whether Maine disciplinary proceedings denied due process/equal protection so as to bar reciprocal discipline | Maine proceedings provided notice, hearing and de novo review; reciprocal discipline appropriate absent clear & convincing proof of denial | Burbank: Maine process violated his procedural and constitutional rights (lack of notice, other constitutional claims) | Held: Rejected. Burbank did not present a colorable due process claim or adequate record; he failed to prove the defense by clear and convincing evidence. |
| Whether an attorney pro se should be held to a different professional standard | Rules apply equally to represented and unrepresented attorneys; attorney’s role as officer of the court persists | Burbank: As a citizen litigating his own matter, he should not be subject to attorney disciplinary standards | Held: Rejected. Connecticut precedent holds attorneys remain officers of the court and must follow professional rules in any capacity. |
| Whether respondent met the clear-and-convincing burden to avoid commensurate discipline under Practice Book § 2-39 | Reciprocal discipline is prima facie proper; respondent must prove any defense by clear and convincing evidence | Burbank: Asserted multiple constitutional and procedural defenses but provided circuitous briefing and incomplete record | Held: Rejected. Trial court’s finding that defenses were not proved by clear and convincing evidence was not clearly erroneous. |
Key Cases Cited
- Lincoln v. Burbank, 147 A.3d 1165 (Me. 2016) (Maine Supreme Judicial Court affirmed underlying judgment and found appellate misconduct warranting sanctions)
- Borough of Duryea v. Guarnieri, 564 U.S. 379 (U.S. 2011) (petition clause protects access to courts and petitions to government fora)
- Statewide Grievance Committee v. Spirer, 247 Conn. 762 (Conn. 1999) (attorney discipline protects courts/public; discipline may follow for misconduct in any capacity)
- In re Weissman, 203 Conn. 380 (Conn. 1987) (trial court’s discretion in imposing commensurate sanctions under reciprocal-discipline rules)
- In the Matter of Presnick, 19 Conn. App. 340 (Conn. App. 1989) (court may discipline attorney for misconduct while self‑represented)
- Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968) (principles of First Amendment free-speech analysis)
- Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445 (Conn. App. 2001) (Rules of Professional Conduct bind attorneys in personal and professional lives)