DISCIPLINARY COUNSEL v. LAURENCE PARNOFF
(AC 36319)
Beach, Prescott and Bear, Js.
Argued March 4—officially released July 7, 2015
(Appeal from Superior Court, judicial district of Fairfield, Bellis, J.)
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Suzanne B. Sutton, first assistant chief disciplinary counsel, with whom were Beth L. Baldwin, assistant disciplinary counsel, and, on the brief, Patricia A. King, chief disciplinary counsel, for the appellant (plaintiff).
Paul E. Pollock, for the appellee (defendant).
Opinion
PRESCOTT, J. In this attorney presentment proceeding brought pursuant to
This disciplinary proceeding arises out of a longstanding dispute over attorney‘s fees between the defendant, his former client, Darcy Yuille, and Attorney Laura Mooney. The fee dispute has spawned several civil actions and prior appeals to this court. See Parnoff v. Yuille, 139 Conn. App. 147, 57 A.3d 349 (2012), cert. denied, 307 Conn. 956, 59 A.3d 1192 (2013); Parnoff v. Mooney, 132 Conn. App. 512, 35 A.3d 283 (2011).
The following procedural history is relevant to the present appeal. On April 23, 2011, Yuille filed a grievance against the defendant alleging that he had violated the Rules of Professional Conduct by improperly taking funds from an escrow account that had been established to safeguard money recovered by Yuille in a civil action until the parties’ fee dispute finally could be resolved.1
The Fairfield Judicial District Grievance Panel determined that there was probable cause to believe that the defendant had violated the Rules of Professional Conduct. Subsequently, following several days of hearings, a reviewing committee of the Statewide Grievance Committee found by clear аnd convincing evidence that the defendant had violated
Following three days of trial, the court rendered the decision that is the subject of the present appeal. In its September 19, 2013 memorandum of decision, the court set forth the following factual findings, which provide a detailed account of the parties’ fee dispute:
“[Yuille] had been employed by Bridgeport Hospital as a nurse prior to her termination following a 1994 work-related injury. On December 5, 1998, she signed a contingent fee agreement with Laurence V. Parnoff, P.C. The agreement, which authorized [the defendant] to prosecutе a bad faith claim handling of the workers’ compensation claim and listed Bridgeport
Hospital as the defendant, essentially set forth a 40 percent contingency fee arrangement. Yuille did not retain a copy of the agreement and has no recollection of having read it. “[The defendant] filed suit against Bridgeport Hospital, and thereafter, the parties agreed to go to binding arbitration. Subsequent to that agreement but before the final arbitration award, [Mooney], who represented Yuille in the underlying workers’ compensation claim, filed an appearance in the Bridgeport Hospital lawsuit filed by [the defendant]. Over the objection of [the hospital‘s] counsel, Mooney appeared at the 2004 arbitration hearing, although she was not permitted to participate. The hearing resulted in an arbitration award in favor of Yuille of approximately $1.1 million.
“[The defendant] first learned that Yuille was questioning [their] fee agreement after the arbitration award. Mooney wrote the arbitrators, asking them to opеn [the award]. Additionally, Attorney William F. Gallagher of the Gallagher Law Firm wrote [to the defendant], requesting that part of the fee from the arbitration award be allocated to Mooney. Finally, Yuille e-mailed defense counsel to the arbitration, instructing them to add Mooney as a payee on all checks related to the arbitration award.
“The relationship between [the defendant] and Yuille began to deteriorate to the point where their communications were reduced to writing. While Yuille had suspected at some point prior to the arbitration that her agreement with [the defendant] called for a 40 percent contingency fee, her suspicions were confirmed when she received the settlement statement from [the defendant]. By letter dated August 18, 2004, and again by e-mail on August 24, 2004, [the defendant] told Yuille to write in and initial the fee amount that she agreed [the defendant] should be paid and to return the signed settlement statement and that he would hold the disputed amount in escrow.
“On August 30, 2004, Yuille signed the statement, crossing out the $438,413.17 in attorney‘s fees listed in the statement, and authorizing [the defendant] to take $125,000 toward his legal fee and escrow the remaining balance until the fee dispute was resolved. Yuille made clear at that time her position that not only was the 40 percent fee excessive, but that Mooney should share in the fee. Yuille reiterated, in subsequent e-mails to [the defendant], her instructions that the arbitration check should be made payable to [the defendant], Mooney, and Yuille, and that the remaining attorney‘s fee, exclusive of the $125,000 payment she had authorized to [the defendant], was to be escrowed. [The defendant] received the arbitration award checks on October 18, 2004; by letter on that same date, [the defendant] confirmed to Yuille that he would escrow the disputed fee.
“On August 27, 2004, [the defendant] filed a lawsuit naming Mooney as a defendant, claiming that Mooney had interfered with his handling of the lawsuit he had filed on behalf of Yuille against Bridgeport Hospital. On October 6, 2004, Mooney filed a motion to compel [the defendant] to disburse the settlement proceeds and escrow the disputed fee. In the motion, Mooney represented that she and Yuille took the position that the fee was illegal and excessive, and additionally, Mooney claimed that she was entitled to a portion of the fee. At the November 16, 2004 hearing on the motion to compel, Gallagher, who appeared on behalf of Mooney, asked that the court order that the disputed balance be escrowed. Yuille took the position that [the defendant] was authorized to take only the $125,000, as she
thought his fee was excessive. The court, Gilardi, J., requested that Gallagher, on behalf of Yuille, file an appearance, motion to intervene, and intervening complaint. [The defendant‘s] counsel, Attorney Thomas J. Weihing, represented that the funds would be escrowed, and Yuille believed that [the defendant] would escrow the funds, based on the comments of his counsel at the hearing as well as the prior communications with [the defendant]. “On November 16, 2004, following the court proceeding, an agreement was reached based on the anticipated court order that the funds would be held in escrow, whereby Yuille signed the settlement check at Weihing‘s office. Yuille had been reluctant to sign the check without court intervention. That same day, [the defendant] signed a trust account application, prepared by Weihing, with Chase Bank. The account was in the name of Laurence V. Parnoff Trustee for Darcy Yuille, with an initial deposit in the amount of $971,032.93. It was Weihing‘s belief at the time that the court had directed [the defendant] to hold the funds.
“[The defendant] made various disbursements from the Chase account. By letter dated November 18, 2004, [the defendant] informed Yuille that the arbitration check had been deposited and that ‘in accordance with [his] letters to [Yuille] and [Yuille‘s] previous instructions, [the defendant would] soon be able to make both the long agreed payment to [Yuille] and also keep the agreed amount in escrow’ . . . .
“On November 27, 2004, [the defendant] confirmed by letter to Yuille that the balance of the fee, in the amount of $313,413.17, remained in escrow. Although indications were that Yuille was going to file a claim against [the defendant], [he] instead brought an action against Yuille. Returnable March 15, 2005, that complaint, filed by Weihing on behalf of [the defendant], alleged breach of contract, unjust enrichment, and bad faith, and specifically made reference to Yuille‘s objection to the legal fee in excess of 33 percent. The com- plaint also alleged that [the defendant] ‘was required, by professional integrity, to agree to hold, and has held, in escrow the sum of $313,413.17.’ Yuille filed an answer and special defenses dated April 13, 2005; the special defenses alleged that the contract was unenforceable in that it was unconscionable, and that it violated Connecticut‘s fee cap statute.
“On December 2, 2004, Weihing, on behalf of [the defendant], filed a pleading with the court in the lawsuit he had filed against Mooney, taking the position that the court had not entered any escrow orders, that Yuille and [the defendant] had reached an agreement in August regarding ‘deposit, disbursement and escrow’ . . . and that Yuille hаd carried out her part of the agreement by signing the arbitration check on November 16, 2004.
“The 2004 lawsuit filed by [the defendant] against Mooney and the 2005 lawsuit filed by [the defendant] against Yuille were consolidated. As of January 24, 2008, the escrow account balance was $350,850.98. During the pendency of the litigation, Weihing and Attorney Barbara Cox from the Gallagher Law Offices would, with frequency, discuss the escrow issue, with Cox asking Weihing for a copy of the escrow account statement, and Weihing asking Cox for a copy of the escrow agreement. And while Weihing believed that most, if not all, of the litigation would end if Mooney‘s claim was resolved, and while he was confused as to what Yuille‘s claim was, Cox did not share in Weihing‘s belief that Yuille would be satisfied if Mooney was paid.
“The cases went to trial in May, 2010. [The defendant] testified at trial that he had escrowed the fee because of the dispute,
as he was ethically bound to do so and because he had represented to Yuille that he would do so. Yuille, when questioned by [the defendant‘s] counsel, testified that [the defendаnt] would need to resolve matters with Mooney and that she would then be willing to give [the defendant] his fee; she also testified, when asked if she was at the trial to help Mooney, that she was also trying to get her own fee dispute resolved. On May 20, 2010, the jury rendered a verdict, as follows: in favor of [the defendant] and against Yuille on [the defendant‘s] breach of contract claims, in favor of Yuille and against [the defendant] on [the defendant‘s] unjust enrichment claim, in favor of Mooney and against [the defendant] on [the defendant‘s] tortious interference claim, and in favor of Mooney and against [the defendant] on Mooney‘s claims of quantum meruit and unjust enrichment. “[The defendant] held the funds in escrow continuously [until] July 26, 2010, when the Chase Certificate of Deposit containing the funds, then in the amount of $363,960.87, was not renewed. The funds were transferred into [the defendant‘s] personal savings account. Approximately one week after the transfer of funds, [the defendant] filed an appeal, and Yuille cross appealed from the verdict. On or about January 4, 2011, Yuille‘s counsel filed а motion with the trial court, essentially seeking an accounting from the purported November 16, 2004 court-ordered escrow, and a release of excess funds. At the first appellate pretrial conference, Cox and Weihing had discussions regarding divvying up the escrow funds. At a subsequent appellate pretrial conference, in late March, 2011, Yuille learned for the first time, from her counsel, that [the defendant] was not holding any funds in escrow for her, when Weihing, having then been so informed by [the defendant], made the disclosure. The cases did not settle on appeal, and the Appellate Court issued its decision on November 20, 2012 . . . .” (Emphasis omitted; footnotes omitted.)
On appeal, this court determined, among other things, that because the fee agreement between the defendant and Yuille required payment of fees greater than permitted by the fee cap statute,
On the basis of its factual findings in this disciplinary hearing, the court determined by clear and convincing evidence that the defendant had violated
In deciding the appropriate disciplinary sanctions to impose, the court considered several mitigating factors, including that the defendant had had a clean disciplinary record for forty-three years, that he had cooperated throughout the disciplinary proceedings, that he had properly held the disputed funds in escrow for approximately nine years, and that he had since restored what remained of the disputed funds to a new escrow account. The court also considered the following aggravating factors: that the defendant had violated an important fiduciary duty, that he had displayed a lack of candor and openness about when the disputed funds were transferred out of escrow and into his personal account, and that Yuille had been harmed by the defendant‘s misconduct. Ultimately, the court decided to issue a formal reprimand against the defendant. It further ordered him to keep all remaining disputed funds in escrow pending further orders from the court and to provide periodic accountings of the escrow account to Disciplinary Counsel upon request.
Disciplinary Counsel filed a motion seeking reargument, reconsideration and clarification of the court‘s decision. In that motion, Disciplinary Counsel asked the court to clarify the amount of money that the defendant currently was supposed to be holding in escrow and to reconsider its findings regarding the mitigating circumstances identified by the court. She also argued that a reprimand was an inadequate sanction under the facts of this case. Thе court granted the motion only to the extent that Disciplinary Counsel sought clarification of its decision, and articulated as follows: that on the basis of the parties’ agreement reported at the July 15, 2011 hearing; see footnote 1 of this opinion; there was $71,703.22 remaining of the disputed funds, and this was the amount it ordered to remain in escrow; that instead of stating that the defendant had held the disputed funds in escrow for nine years, it instead should have referred to a “nearly nine year time frame“; and that it “clearly made factual findings with respect to the dates involved, the fact that the [certificate of deposit] was not renewed and the funds were transferred into [the defendant‘s] personal account, and the fact that the funds had been restored to escrow.”
The court also clarified with respect to the July 15, 2011 hearing, that it “declined to consider the events of [July 15, 2011] as an aggravating factor. At the [July 15,
On December 31, 2013, Disciplinary Counsel filed a motion for articulation asking the trial court to state the factual and legal basis for its findings (1) that the defendant should be required to escrow only $71,703.22, rather than $363,960.87, which Disciplinary Counsel contended was the total amount of the funds misappropriated by the defendant; and (2) that the defendant did not act wilfully, with a lack of integrity, or with any intent to deceive Yuille. The court granted the motion and issued the following articulation: “As to [Disciplinary Counsel‘s] first request, the court, pursuant to
I
Disciplinary Counsel first claims that the court applied an incorrect standard in determining whether the defendant knowingly misappropriated funds and, thus, was subject to mandatory disbarment under
First, the language used by the court in its memorandum of decision indicates that the court was aware of and correctly applied the standard contained in
We begin our discussion of Disciplinary Counsel‘s claim by acknowledging that no appellate court in this state has had the opportunity to discuss
Neither party argues that the language of the rule is ambiguous, nor do we perceive any ambiguity in the text of the rule. By its plain language,
In the present case, the disciplinary proceeding before the court involved the defendant‘s alleged violation of
In so ruling, however, the court, in essence, emphasized that the defendant lacked the knowledge that the funds belonged to Yuille. The court explained that the parties’ fee dispute had a tortuous and very confusing procedural history, and that the defendant had acted in this case on the basis of an unreasonable belief that he no longer was required to maintain the disputed funds in the escrow account. Put in other terms, the court found that the defendant acted with carelessness rather than with the awareness necessary to find that the defendant violated
The court did not elaborate on what standard it used in determining that the defendant‘s misappropriation of Yuille‘s funds in the present case was not a “knowing” misappropriation. By using the “knowing misappropriation” language and referencing
Disciplinary Counsel nevertheless urges us to consider New Jersey law in reviewing whether the court applied the correct standard for a “knowing misappropriation.” The 2007 commentary to
In In re Wilson, the court was asked to determine the proper discipline to impose on an attorney who had ”knowingly used his clients’ money as if it were his own.” (Emphasis added.) In re Wilson, supra, 81 N.J. 453. Thus, whether the attorney‘s misappropriation was knowing was undisputed and not an issue considered by the court in In re Wilson. That court explained in considerable detail that а misappropriation of client‘s funds by an attorney is a particularly egregious act of professional misconduct because such an act risks eroding the public‘s confidence in the integrity and trustworthiness of lawyers. Id., 455–56. The court also discussed the fact that various mitigating factors that courts often considered when crafting disciplinary sanctions in cases of knowing misappropriation rarely, if ever, should be permitted to override the need for disbarment. Id., 457–60. Nevertheless, because in In re Wilson it was undisputed that the attorney had acted knowingly in misappropriating his client‘s funds, the In re Wilson decision contains no guidance about the standard a court should utilize in determining whether in any particular case an attorney‘s misappropriation was knowing. In later applying the In re Wilson rule, however, the New Jersey Supreme Court stated that “knowing misappropriation under Wilson consists simply of a lawyer taking a client‘s money entrusted to him, knowing that it is the client‘s money and knowing that the client has not authorized the taking.” (Emphasis added; internal quotation marks omitted.) In re Warhaf- tig, 106 N.J. 529, 533, 524 A.2d 398 (1987).
In In re Konopka, 126 N.J. 225, 596 A.2d 733 (1991), the main issue before the New Jersey Supreme Court was whether shortages identified during an audit of trust fund accounts maintained by an attorney for his clients were the result of a knowing misappropriation of funds. Although the court held that the attorney had violated rules of professional conduct governing the safekeeping of client‘s property and record keeping, it concluded that his actions were the result of inadequate and extremely careless record keeping—in other words, negligence—which did not amount to a knowing misappropriation of funds. In reaching its decision, the court clarified that the In re Wilson rule was meant to deter only knowing misappropriations. Id., 234; In re Gallo, 117 N.J. 365, 373, 568 A.2d 522 (1989); see also In re Barlow, 140 N.J. 191, 196, 657 A.2d 1197 (1995) (“Proof of misappropriation, by itself, is insufficient to trigger the harsh penalty of disbarment. Rather, the evidence must clearly and convincingly prove that respondent misappropriated client funds knowingly.“).
Disciplinary Counsel nevertheless argues that the court improperly focused its inquiry on whether the defendant acted with knowledge that the funds belonged to
The cases relied on by Disciplinary Counsel do not hold, as she seems to suggest, that any time a lawyer takes disputed funds, the lawyer‘s belief as to his rights to those funds is irrelevant. Instead, the cases concern a related but separate question of whether the lawyer is somehow excused if his intent was only to “borrow” the money.
In determining whether a misappropriation of funds was done knowingly in the first instаnce, however, it is entirely proper for the court to look to whether the attorney‘s actions were done with actual or constructive knowledge of a lack of ownership or whether he or she acted with some less culpable state of mind. An attorney who takes a client‘s fund on the basis of an unreasonable belief that he is entitled to those funds certainly may have negligently or recklessly misappropriated those funds, and may be subject to disciplinary action, but he or she has not necessarily done so “knowingly” so as to trigger the automatic disbarment sanction of
In short, Disciplinary Counsel has failed to convince us that the court applied an incorrect legal standard in determining that the defendant‘s actions in the present case did not amount to a knowing misappropriation. Accordingly, her claim fails.
II
Disciplinary Counsel next claims that the court made a number of clearly erroneous factual findings. In particular, she claims that the court‘s finding that the defendant acted negligently was clearly erroneous given that he was fully aware of his ethical obligation regarding the disputed funds and used those funds for his personal benefit. She also claims that, in adjudicating the grievance complaint, the court improperly relied upon the parties’ agreement at a July 15, 2011 hearing on the application for interim suspension that $71,302.22 was the amount of the remaining disputed fees, which the court had ordered the defendant to hold in escrow until further ordered. Finally, she claims that the court improperly found as a mitigating factor that the defendant had cooperated with the disciplinary proceedings. We conclude that Disciplinary Counsel misperceives the true nature of the court‘s decision and that the factual findings challenged by Disciplinary Counsel are supported by evidence in the record as a whole. Accordingly, we reject her claims that the findings are clearly erroneous.
Before addressing each of Disciplinary Counsel‘s claims in turn, we first reiterate our well settled and highly deferential standard of review. It is axiomatic that “factual findings . . . are subject only
A
Disciplinary Counsel first challenges the trial court‘s finding that, in failing to keep the disputed funds in escrow, the defendant acted negligently, not wilfully or with any intent to deceive. According to Disciplinary Counsel, the court‘s finding was clearly erroneous given the defendant‘s testimony that he understood his ethical obligations regarding disputed funds generally, but nevertheless failed to keep the funds at issue safe, using them for his personal gain. On the basis of our review of the record, we are convinced that there was sufficient evidence before the court to support its conclusion that the defendant acted negligently, or, as the court clarified in its January 22, 2014 articulation, “acted unreasonably but not dishonestly, and without an intent to deceive.”
As noted by the court in its memorandum of decision, “[the defendant] testified repeatedly that he believed that [Yuille‘s] special defenses did not raise a dispute with respect to the fee, and that he was justified in terminating the escrow based on the portion of Yuille‘s testimony [on May 14, 2010] that she would be satisfied if he resolved his fee dispute with Mooney.” The defendant testified a number of times during the trial that he believed that Yuille had waived any challenge she may have had regarding her fee agreement with him and that she sought only to ensure that Mooney received a share of the disputed funds. He also stated that he had held the disputed funds in escrow voluntarily, and that he believed that the money in the escrow account belonged to him.
“[W]e must defer to the [trier of fact‘s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted) In re Felicia B., 56 Conn. App. 525, 526, 743 A.2d 1160 (2000), cert. denied, 252 Conn. 951, 748 A.2d 298 (2000).
The defendant‘s testimony at trial is consistent with and supports the court‘s statement in its decision that the defendant‘s failure to keep the disputed funds in escrow was the result of his belief that he was no longer required to do so, a belief that the court also determined was “unreasonable in light of all the facts.” It was solely within the discretion of the court to evaluate firsthand the conduct, demeanor, and attitude of the defendant. Having done so, the court was apparently convinced that the defendant believed that his actions were justified, and that, although
B
Disciplinary Counsel next challenges the court‘s finding, made in response to Disciplinary Counsel‘s motion for reargument, reconsideration and clarification, that $71,703.22 was the amount to be held in escrow by the defendant going forward based on counsel‘s July 15, 2011 agreement.7 Disciplinary Counsel argues that the court‘s finding “demonstrates its misunderstanding as to several material facts in this case.” We are not persuaded.
The court stated in both its memorandum of decision and in its response to the motion for articulation that the only issues that were before the court in this presentment action were whether the defendant had violated the Rules of Professional Conduct and, if so, what sanction it should impose. The court recognized that the parties remained in litigation regarding what amounts each party to the litigation was entitled to, and the court made no attempt to address that. In resolving the issues before it, however, the court also ordered that any remaining disputed funds must be escrowed going forward pending further orders from the court. The court did not initially quantify the amount that the defendant was to maintain in escrow. We construe the court‘s order as a valid attempt to preserve for future distribution any of the disputed funds remaining.
In response to Disciplinary Counsel‘s request for clarification as to the amount to be held in escrow, the court chose $71,703.22, which was an amount that the parties had agreed at the July 15, 2011 hearing represented what remained of the disputed funds following the defendant‘s actions. Whether those funds were held in an escrow account on July 15, 2011, or whether that number represented an
C
Disciplinary Counsel also claims that the court‘s finding that the defendant cooperated throughout the disciplinary proceedings is clearly erroneous. We are unconvinced that the one instance of uncooperative behavior relied on by Disciрlinary Counsel in support of her claim, even if true, renders the court‘s more generalized and broader finding of cooperative behavior clearly erroneous.
Although the American Bar Association‘s Standards for Imposing Lawyer Sanctions have not been officially adopted in Connecticut, Connecticut courts have looked to them for guidance in evaluating attorney misconduct and in determining appropriate discipline. See Burton v. Mottolese, 267 Conn. 1, 55, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004). The court cited those standards in the present case. Section 9.32 sets forth a number of mitigating factors that may be considered in imposing a sanction, including “full and free disclosure to disciplinary board or cooperative attitude toward proceedings.” In setting forth the relevant mitigating factors in the present case, the court stated that the defendant “was cooperative throughout the disciplinary proceedings,” clearly focusing on the second half of the aforementioned factor. The court did not elaborate as to the subordinate facts underlying its finding and, although it was asked to reconsider whether the defendant truly had been cooperative in light of alleged misrepresentations made by the defendant at the July 15, 2011 hearing, the court was never asked to articulate the basis for its finding of cooperation.
Disciplinary Counsel‘s entire argument in support of her claim that the court‘s finding was clearly erroneous rests on her argument that the defendant misrepresented to her at the July 15, 2011 hearing that $71,703.22 was being held in escrow despite the fact that, according to the accounting he later provided to her, there was a zero balance in his client escrow account on July 15, 2011. It was not until after the July 15, 2011 hearing that the defendant allegedly deposited funds into his escrow account, which, according to Disciplinary Counsel, only was done “to save himself from the application for interim suspension.” In its November 12, 2013 clarification, the court seems to have rejected Disciplinary Counsel‘s argument that the defendant made a misrepresentation regarding the escrow account on July 15, 2011, stаting that it had carefully reviewed the transcript from that date and that “[n]o representation was made by the defendant or by defense counsel that the funds had continuously remained in escrow.” Disciplinary Counsel has not directly challenged that finding on appeal.
Even if we were to accept Disciplinary Counsel‘s argument as true, this would not necessarily render the court‘s finding that
III
Finally, Disciplinary Counsel claims that a reprimand was an insufficient sanction given that the defendant unilaterally and unreasonably determined that the fee dispute had been resolved and allegedly misappropriated $363,760.86 of his client‘s funds. Accepting, as we must, the facts found by the court, we are not convinced that the court abused its discretion by only reprimanding the defendant.
“In attorney grievance cases, in the absence of mandatory statutory sanctions, a reviewing court must defer to the discretion of the fact finder, whether it be the trial court or the committee, because the fact finder is in the best position to evaluate the evidence and the demeanor of the parties.” Statewide Grievance Committee v. Glass, 46 Conn. App. 472, 479, 699 A.2d 1058 (1997). Accordingly, once a trial court has found by clear and convincing evidence that an attorney has engaged in professional misconduct, the court has “the inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Spirer, 247 Conn. 762, 781, 725 A.2d 948 (1999). It is not for an appellate court to decide whether, under the circumstances of a particular case, it would have imposed a harsher sanction on the defendant. Id. “Rather, our inquiry is limited to whether the trial court abused its discretion in imposing [the sanction that it did]. The scope of review by this court on a claim that the trial court abused its discretion is well settled. [E]very reasonable presumption should be given in favor of the correctness of the court‘s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Id.; see also Statewide Grievance Committee v. Glass, supra, 479 (“[t]he abuse of discretion standard is such that it usually precludes the overturning of a trial court‘s judgment in such cases“).
In the present case, the court heard three days of testimony and arguments regarding the defendant‘s actions as they pertained to his safeguarding of the funds in dispute. This included testimony from the defendant. The court found that although the defеndant failed to exercise properly his fiduciary and professional responsibilities to keep the disputed funds safe and separate from his personal account, he did not engage in a knowing misappropriation of the funds; rather, his conduct was negligent, based on a unreasonable belief that he no longer was required to keep the disputed funds in escrow. As we have already indicated in part II A of this opinion, the court‘s finding that the defendant‘s actions were negligent is supported by the record as a whole and, when viewed with the requisite presumption of correctness, rationally supports the court‘s exercise of its discretion to impose a more lenient sanction. Accordingly,
Our review of the record leaves us with no doubt that the actions of the defendant were, at best, unreasonable. We also fully agree with the statements of the сourt in In re Wilson that misappropriation of a client‘s funds cuts to the very heart of the trust that the public places in attorneys every day and in our legal system generally.8 It is a fundamental duty of attorneys to safeguard and protect with the utmost diligence any property held by the attorney on behalf of his or her clients. “[T]he fiduciary relationship between an attorney and a client requires absolute perfect candor, openness and honesty, and the absence of any concealment or deception.” (Internal quotation marks omitted.) Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 89–90, 4 A.3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011), cert. denied, U.S. , 132 S. Ct. 101, 181 L. Ed. 2d 28 (2011). Nevertheless, the mere fact that a more severe sanction might have been justified given the nature of the violation does not mean that the court here manifestly abused its discretion in imposing a lesser sanction or that the discipline imposed amounted to an injustice that must be remedied by a reversal.
The judgment is affirmed.
In this opinion the other judges concurred.