332 Conn. 510
Conn.2019Background
- Josephine Smalls Miller, an attorney, was en banc suspended from practicing before the Connecticut Appellate Court for six months (Dec. 9, 2014) and thereafter barred from representing any client before that court until she filed and was granted a motion for reinstatement with specified remedial steps.
- Chief Disciplinary Counsel later learned Miller had executed a retainer with Jasmine Williams (Oct. 1, 2016) to provide Appellate Court–level services (review transcripts and draft the brief) while another attorney would argue the case.
- Chief Disciplinary Counsel sent a letter to the Chief Clerk notifying the court of that retainer (Oct. 4, 2017); Miller was not given a copy of that letter.
- The Appellate Court issued a clarification order (Feb. 15, 2018) stating the 2014 order precluded Miller from providing any legal services in connection with Appellate Court matters until reinstatement; the 2018 order imposed no additional sanctions and was issued without prior notice or a hearing.
- Miller filed a writ of error challenging both orders, arguing the 2018 order (1) was an ex post facto law/retroactive expansion of the 2014 order, (2) resulted from selective enforcement, and (3) was racially disparate/retaliatory; she also argued the 2018 order violated due process by being issued without notice or hearing.
- The trial court in Office of Chief Disciplinary Counsel v. Miller found Miller violated the 2014 order and the Rules of Professional Conduct by providing appellate-level services to Williams and suspended her for one year; this court took judicial notice of that record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2018 clarification order was an unconstitutional ex post facto law / retroactive expansion of the 2014 order | Miller: 2018 order retroactively prohibited conduct not covered by 2014 order; thus unconstitutional | Appellate Court: Ex post facto clause limits legislature, not judiciary; 2018 merely clarified scope and imposed no new sanctions | Dismissed: ex post facto clause inapplicable; issue reframed as due process and resolved against Miller |
| Whether the Appellate Court selectively enforced disciplinary rules or engaged in racially disparate/retaliatory treatment | Miller: sanctions were selectively and discriminatorily applied against minority attorneys pursuing racial claims | Appellate Court: factual assertions inappropriate for this court on writ of error; these are fact-bound and belong in trial/disciplinary proceedings | Not reviewed here: court declined to decide fact-bound selective enforcement/discrimination claims on this writ |
| Whether the 2018 order violated Miller’s due process rights by retroactively prohibiting conduct | Miller: 2018 order barred conduct outside 2014 order and was issued without notice/hearing | Appellate Court: 2012018 simply clarified original ban; no new sanctions; 2014 order already clearly barred appellate-level services | Held for Appellate Court: reasonable attorney would understand 2014 order precluded all Appellate Court–level services; no due process violation |
| Whether issuing the 2018 order without prior notice or hearing violated due process | Miller: lack of notice/hearing denied opportunity to contest alleged new prohibition | Appellate Court: order did not add sanctions; court has inherent authority over practice and may clarify orders; Chief Disciplinary Counsel acts as an arm of the court | Held for Appellate Court: absence of notice/hearing not dispositive because 2018 order did not expand prohibitions beyond the 2014 order; no due process violation |
Key Cases Cited
- Miller v. Appellate Court, 320 Conn. 759 (2016) (prior review upholding 2014 order imposing suspension and referral)
- Washington v. Commissioner of Correction, 287 Conn. 792 (2008) (limitations on ex post facto judicial decisionmaking inherent in due process)
- Lashgari v. Lashgari, 197 Conn. 189 (1985) (judgment construction focuses on court's intent and surrounding circumstances)
- Burton v. Mottolese, 267 Conn. 1 (2003) (suspension from practice is sui generis and aimed at protecting the court)
- Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995) (historical authority of courts over attorney discipline and practice)
- Baird v. State Bar, 401 U.S. 1 (1971) (court's interest in professional competence of attorneys)
- Rogers v. Tennessee, 532 U.S. 451 (2001) (ex post facto clause is a limitation upon legislative power, not judicial)