DISCIPLINARY COUNSEL v. ROBERT SERAFINOWICZ
(AC 36489)
Connecticut Appellate Court
Argued April 16—officially released September 22, 2015
Sheldon, Keller and Mullins, Js.
(Appeal from Superior Court, judicial district of Waterbury, Agati, J.)
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Brittany B. Paz, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).
Desi Imetovski, assistant chief disciplinary counsel, with whom was Suzanne B. Sutton, first assistant chief disciplinary counsel, for the appellee (plaintiff).
Opinion
SHELDON, J. In this presentment filed by the plaintiff, Disciplinary Counsel, alleging misconduct by the defendant, Attorney Robert Serafinowicz, the defendant appeals from
The record discloses the following relevant facts and procedural history. The defendant is a practicing criminal defense attorney who was admitted to the bar in this state in 2004. In September, 2011, the defendant represented a Derby Middle School employee in a pretrial disposition before Judge Burton Kaplan in the geographical area number five courthouse in Derby. The case, which involved the alleged commission of certain narcotics related offenses on school property, generated substantial media interest and publicity.
On September 20, 2011, the defendant filed a complaint with the Judicial Review Council (Judicial Review) against Judge Kaplan, alleging bias. On September 28, 2011, the defendant filed a motion to recuse Judge Kaplan in the pending case against the Derby Middle School employee, citing as the basis for the motion the filed complaint against Judge Kaplan and the potential conflict arising therefrom. On September 29, 2011, Judicial Review returned the complaint to the defendant by letter, indicating that additional information was needed to process it. The defendant did not timely submit the information requested, and as a result, the complaint was not processed. Thereafter, the defendant appeared before Judge Kaplan on five occasions over a period of several months.
On February 8, 2012, the defendant disclosed to a local online media outlet that he had filed a complaint against Judge Kaplan. Shortly thereafter, on February 28, 2012, the defendant appeared before Judge Kaplan and claimed his motion to recuse. At the outset of the hearing, Judge Kaplan noted that he had made inquiries about the stated basis for the recusal motion—the complaint against him that had allegedly been filed with Judicial Review—and had been informed that the complaint had been returned as incomplete. Judge Kaplan further stated that the defendant had appeared before him on five occasions, subsequent to filing the motion to recuse, and had not claimed the motion or indicated that there was a potential conflict. On that subject, Judge Kaplan stated: “I don‘t know how you can file a motion, tell the clerk not to claim it, know that the complaint has been returned, and not amend or withdraw your motion that makes reference to a complaint that didn‘t exist.” Thereafter, Judge Kaplan denied the recusal motion, but recused himself sua sponte.
Immediately following the hearing, the defendant gave a statement to the press on the steps of the Derby courthouse in which he made several disparaging remarks about Judge Kaplan. His comments were videotaped and later publicly disseminated. The defendant stated, inter alia: “The man‘s a disgrace to the bench. He shouldn‘t be sitting on the bench. It‘s clear . . . very clear that the man does not give people a fair shake, it‘s clear that he plays favorites. There‘s certain lawyers that he likes and certain lawyers that he doesn‘t. . . . In case you didn‘t notice, he didn‘t like the fact that the media became involved in this because once the media
“[Judge Kaplan] obviously had something against [my client], and I wasn‘t going to stand there and I wasn‘t going to take it. When I raised my right hand to take that oath and say I was going to be a lawyer, I vowed that I was going to represent every one of my clients to the best of my ability and I‘m going to do that. Prior to this case even being docketed for the first time, he [Judge Kaplan] gave an opinion on the case, which he‘s not supposed to do. That is unacceptable and—now, at least, we‘re going to have a judge who‘s going to have a fair and open mind and give this person a fair shake because it‘s clear that he was not going to get one in this courthouse. And as I said before, the man‘s a disgrace to the bench. Everyone within the state of Connecticut should have a problem with their tax dollars going to pay his salary.”
Subsequent to the defendant‘s statement to the press, the plaintiff filed a grievance complaint against the defendant, alleging, inter alia, violations of
I
The defendant first claims that the court abused its discretion in imposing sanctions. More specifically, the defendant argues that the court improperly weighed certain aggravating factors and failed to accord sufficient weight to mitigation evidence demonstrating his good character. The defendant further argues that the 120 day period of suspension is excessive when compared to sanctions imposed in other cases involving more egregious conduct than that at issue in his case. The defendant‘s arguments are without merit.
At the outset, we set forth the applicable legal principles. “The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar. . . . The judiciary has the power to admit attorneys to practice and to disbar them . . . to fix the qualifications of those to be admitted . . . and to define what constitutes the practice of law. . . . In the exercise of its disciplinary power, the Superior Court has adopted the Code of Professional Responsibility [now the Rules of Professional Conduct].” (Internal quotation marks omitted.) Chief Disciplinary Counsel v. Rozbicki, 150 Conn. App. 472, 478 (2014), cert. denied, 314 Conn. 931 (2014). “Disciplinary proceedings are for the purpose of preserving the courts from the official ministration of persons unfit to practice in them.” (Internal quotation marks omitted.) Ex parte Wall, 107 U.S. 265, 288 (1883). “Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 88 Conn. App. 523, 531 (2005), aff‘d, 282 Conn. 1 (2007).
“The trial court possesses 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. . . . It is well
“Courts considering sanctions against attorneys measure the defendant‘s conduct against the rules. Although the rules define misconduct, they do not provide guidance for determining what sanctions are appropriate. . . . Connecticut courts reviewing attorney misconduct, therefore, have consulted the American Bar Association‘s Standards for Imposing Lawyer Sanctions [ABA standards] . . . . Although the [ABA] standards have not been officially adopted in Connecticut, they are used frequently by the Superior Court in evaluating attorney misconduct and in determining discipline, as they were by the court here.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Fountain, 56 Conn. App. 375, 381 (2000). “[A]fter a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorney‘s mental state; (3) the potential or actual injury stemming from the attorney‘s misconduct; and (4) the existence of aggravating or mitigation factors.” Burton v. Mottolese, 267 Conn. 1, 55 (2003), cert. denied, 541 U.S. 1073 (2004).
The aggravating factors include: “(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; [and] (j) indifference to making restitution.” (Internal quotation marks omitted.) Id. The mitigation factors include: “(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses.” (Internal quotation marks omitted.) Id., 55–56.
In the present case, the trial court noted that its purpose in imposing sanctions was not to punish the defendant, but to “preserve public respect for our judiciary by protecting it from unwarranted and inappropriate attacks.” The court further noted that the defendant‘s publicized comments against Judge Kaplan were baseless. In making its determination that a
The defendant contends that the court‘s reliance on the aggravating factors lacked a factual basis in the record, “making its punishment erroneous.” The defendant, however, did not dispute the factual basis for the allegations of misconduct. Instead, he submitted an affidavit admitting that there was sufficient evidence to establish that he had violated the rules. The record demonstrates, consistent with his affidavit, that the defendant failed to withdraw his motion to recuse once it became apparent it was predicated on incorrect information. The defendant then made statements to the press questioning Judge Kaplan‘s motives and professional credentials while touting his own self-avowed expertise as a lawyer. While the candid criticism of lawyers aimed at bettering the administration of justice has an important place in our legal system, the intemperate statements made by the defendant in this instance served no useful purpose. Thus, notwithstanding the defendant‘s arguments to the contrary, there was ample support for the court‘s conclusion that he engaged in a pattern of misbehavior that exhibited a selfish or dishonest motive.
The defendant argues that the court failed to properly consider the relevant mitigating evidence. Specifically, the defendant argues that the court failed to properly consider his “character and reputation,” which he claims was a necessary consideration because he submitted four letters attesting to his good character and presented a character witness, Attorney Williams. This argument lacks merit. First, the court was free to reject the defendant‘s character evidence; and second, there is no requirement that the court set forth its express consideration of such evidence in its memorandum of decision. In fashioning the appropriate penalty in this case, the court took into account the allocution by the defendant, the absence of a prior disciplinary record, and his cooperation relative to the proceedings. Moreover, the court imposed considerably less onerous sanctions than those requested by the plaintiff, suggesting that it weighed the mitigation evidence in rendering its decision.
Last, the defendant argues that the sanctions imposed in this case constitute an abuse of the court‘s discretion in light of other cases involving allegedly similar conduct where a lesser penalty was imposed. Absent a showing that the trial court has acted arbitrarily, we defer to the trial court‘s determination of the appropriate discipline. Statewide Grievance Committee v. Spirer, 247 Conn. 762, 781 (1999). “[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. Contrary to the defendant‘s argument, the imposition of sanctions should be individualized and tailored to the facts of the particular case. Indeed, the ABA standards on which the defendant relies, and which serve as a guide for imposing discipline, reflect that goal. In this case, the court concluded that a 120 day period of suspension was necessary to preserve respect for the judiciary, and to encourage the defendant and
II
The defendant next claims that he was sanctioned for making constitutionally protected statements in violation of his first amendment rights. “Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 462 (2005), cert. denied, 276 Conn. 919 (2005). Moreover, a party relinquishes his right to assert a constitutional violation on appeal where his previous course of action manifested an intention to abandon the claim. Gagne v. Vaccaro, 80 Conn. App. 436, 445–46 (2003), cert. denied, 268 Conn. 920 (2004). “The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.” (Internal quotation marks omitted.) Id. Here, the defendant not only failed to assert his constitutional argument at trial, he tendered an admission of misconduct. As a consequence, the defendant has waived his first amendment claim.
The judgment is affirmed.
In this opinion the other judges concurred.