189 Conn. App. 643
Conn. App. Ct.2019Background
- Debra Cohen, a probate court staff attorney, simultaneously served as court‑appointed trustee for the DeRosa estate; she later sought to resign as fiduciary and file a final accounting.
- After hearings, the Probate Court ordered Cohen to file a final account resolving tax interest/penalties; Cohen initially filed accountings that waived fiduciary fees, then filed a June 24, 2013 amended account that showed both a $5,531.84 reimbursement by her for tax penalties and a corresponding $5,531.84 fiduciary fee.
- The Probate Court questioned the accounting, Cohen later removed the fiduciary fee entry and the court approved the final account on September 5, 2013.
- The Office of Disciplinary Counsel filed grievance charges; a reviewing committee found by clear and convincing evidence that Cohen knowingly made a false statement to a tribunal (Rule 3.3(a)(1)) and engaged in dishonest conduct (Rule 8.4(3)). The committee reprimanded Cohen and imposed sanctions.
- The Statewide Grievance Committee affirmed; the Superior Court dismissed Cohen’s appeal. Cohen appealed to the Appellate Court, raising due process, rule‑scope, and merits challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did disciplinary counsel’s failure to investigate violate due process? | Cohen: counsel never investigated (didn’t interview judge, staff, or others), so her due process rights were violated. | State: Cohen had notice, evidence was presented, and she received full hearings and appeals; no constitutional violation shown. | Not reviewed on merits; claim raised first on appeal and unsupported — fails under Golding. |
| Did counsel’s failure to call witnesses (other than Cohen) at the reviewing hearing violate due process? | Cohen: absence of complainant/witness testimony denied a fair process. | State: case relied on documentary record and Cohen’s own submissions — sufficed for clear and convincing proof. | Not preserved for appeal and fails under Golding if treated as constitutional claim. |
| Does Rule 3.3(a)(1) apply only where an attorney represents a client (i.e., not to fiduciaries)? | Cohen: commentary suggests rule governs attorneys representing clients before tribunals; she acted as a fiduciary, not as advocate for a client. | State: rule text is unambiguous and applies to "lawyers" making statements to tribunals; no client‑relationship limitation. | Court construed rule textually: Rule 3.3(a)(1) applies to lawyers (including fiduciaries) who make false statements to a tribunal; commentary is non‑authoritative. |
| Was Cohen’s June 24, 2013 accounting a knowing false statement and dishonest conduct under Rules 3.3(a)(1) and 8.4(3)? | Cohen: fee entry reflected true services and reasonable rate; any inconsistency was mistake or confusion. | State: June 24 entry contradicted prior representations (email and earlier accountings) and matched the penalty amount to offset Cohen’s liability, showing intentionality. | Reviewing committee’s factual findings were supported by clear and convincing evidence; the false/dishonest finding and reprimand were affirmed. |
Key Cases Cited
- State v. Golding, 213 Conn. 233 (recognizes appellate review standard for unpreserved constitutional claims)
- Notopoulos v. Statewide Grievance Committee, 277 Conn. 218 (burden on grievance committee to prove ethics violations by clear and convincing evidence)
- Chief Disciplinary Counsel v. Zelotes, 152 Conn. App. 380 (discussing standard of review and clear and convincing proof in attorney discipline appeals)
- Lohnes v. Hospital of Saint Raphael, 132 Conn. App. 68 (Golding review applies in civil cases)
- Wiseman v. Armstrong, 295 Conn. 94 (rules of practice are construed like statutes; use textual interpretation)