JOHN F. O‘BRIEN v. SUPERIOR COURT, JUDICIAL DISTRICT OF HARTFORD
(AC 26361)
Appellate Court of Connecticut
Argued September 19, 2007—officially released February 12, 2008
105 Conn. App. 774
DiPentima, McLachlan and Peters, Js.
Peregrine Zinn-Rowthorn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, Gregory T. D‘Auria, associate attorney general, and Philip Miller, assistant attorney general, for the defendant in error.
Opinion
PETERS, J. The principal issue in this writ of error is whether the trial court properly disciplined a defense attorney who filed a postacquittal motion for a judicial inquiry into possible tampering with evidence consisting of a communication between his client and her prior counsel. The trial court faulted the attorney for persisting in his claim that the attorney-client privilege had not been waived at the criminal trial and for calling for a grand jury investigation without sufficient evidence to support a good faith belief of criminal misconduct by a governmental entity. Although we agree with the court‘s finding that the attorney violated rules 3.1 and 3.3 of the Rules of Professional Conduct, we do not agree with its findings that he violated rules 1.2 and 8.4. Therefore we deny the writ in part and grant it in part.
The record discloses the following relevant facts and procedural history. From June 25 to July 9, 2003, the plaintiff was trial counsel for T,2 whom the state had charged with two counts of custodial interference in the first degree; see
Upon reviewing the document, T confirmed that it was a communication with her former attorney, but continued to insist that she was not the declarant of the passage that the prosecutor had read aloud. She opined: “There‘s some piece here missing or something. I don‘t know why . . . I don‘t know if [my attorney] cut in between something. . . .” The prosecutor then offered the e-mail into evidence and provided T‘s attorney, the plaintiff here, with an opportunity to examine it. After the examination, the plaintiff informed the court that he had “[n]o objection” to its admission. The court then entered the document into evidence as state‘s exhibit eleven.
On the next day of trial, during the plaintiff‘s redirect examination of T, the plaintiff, for the first time, described state‘s exhibit eleven as a “confidential, privileged message” between T and her former attorney. Noting that the plaintiff had not protested the entry of
T then testified that, upon looking through her records the previous evening, she had found an original copy of state‘s exhibit eleven. This copy, entered into evidence as defendant‘s exhibit F, plainly demonstrated that several lines of text were missing from the state‘s version of the e-mail, resulting in a gap in the communication immediately preceding the vitriolic passage that had been quoted in court the day before. T testified that exhibit F, by filling in the gap, demonstrated that she had been reciting her former husband‘s words to her attorney, rather than declaring them as her own position. At this juncture, no question was raised by either counsel or by the court as to who had redacted the e-mail or how it had come into the state‘s file.
On July 9, 2003, after T‘s acquittal of the criminal charges against her, she directed the plaintiff “to move the [trial] court to make an inquiry into exactly how the state‘s attorney came to possess the document that he introduced as Exhibit [eleven] in the trial . . . and who altered it. . . .”4 The plaintiff made an oral motion for the court to apply for an investigation5 and then
On July 11, 2003, the trial court conducted its first hearing on the plaintiff‘s motion. The court faulted the plaintiff for his failure to file affidavits in support of his motion and ordered him, and the prosecutor, to fill this procedural gap. Anticipating what these affidavits might contain, the court divided the plaintiff‘s motion into two specific assertions of misconduct: an alleged violation of the attorney-client privilege and a request for the court‘s filing of an application for an investigation under
The affidavits subsequently submitted by the prosecutor and the plaintiff disagreed about the provenance of exhibit eleven. The prosecutor‘s affidavit asserted that he had received exhibit eleven in its redacted version from T‘s former husband on June 20, 2003, and that he had represented finding the e-mail in the former
On September 17, 2003, the trial court issued its memorandum of decision denying the plaintiff‘s motion for an investigation. With respect to the alleged violation of the attorney-client privilege, the court ruled that, even if the contents of exhibit eleven had fallen within the privilege, the plaintiff and T had waived the privilege by failing to claim it when the e-mail was first introduced into evidence. With respect to the request for a
The court then initiated the proceedings that gave rise to the present writ of error. The court stated that “inasmuch as counsel for the acquitee has made no effort to even articulate some semblance of a basis for either claim, the question then becomes one of whether counsel has made his claims in good faith and has
On November 6, 2003, the plaintiff filed a “Reply to Memorandum of Decision and Motion Not to Impose Sanctions,” in which he averred that he had filed his postacquittal motion in good faith and that he lacked any malicious or improper motives. Nonetheless, he continued to refer to exhibit eleven as a “privileged communication.” Relying on that characterization, he faulted the prosecutor for failing to inquire into the origins of the altered exhibit and opined that the prosecutor had an ethical duty to disclose its existence to the defense before introducing it into evidence at T‘s criminal trial. At the same time, he repeated that “[n]either [T] nor I accuse any particular person of wrongdoing in connection with state‘s exhibit [eleven] . . . because we have absolutely no evidence surrounding this document except that which is presented in the subject motion, in argument and in this memorandum.”
On December 9, 2003, after a second hearing, the trial court, unpersuaded by the plaintiff‘s reply,9 imposed sanctions on the plaintiff. Incorporating by reference its findings in its September 17, 2003 memorandum of decision,10 the court recited the relevant procedural
I
The plaintiff challenges the validity of each of the court‘s criticisms of the legitimacy of his filing of his motion for a judicial investigation into the prosecutor‘s introduction of exhibit eleven at his client‘s trial. Before we address each of the plaintiff‘s individual claims, we must identify the standards that govern our appraisal of his writ of error.
It is fundamental that “[t]he Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar.” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983). “[Courts] may of their own initiative, and without complaint, set on foot inquiries as to professional conduct and fitness . . . .” In re Peck, 88 Conn. 447, 457, 91 A. 274 (1914). Nonetheless, although “the power of the courts is left unfettered to act as situations, as they may arise, may seem to require, for efficient discipline of misconduct“; id.; “in a matter involving attorney discipline, no sanction may be imposed unless a violation of the Rules of Professional Conduct has been established by clear and convincing evidence.” State v. Perez, 276 Conn. 285, 307, 885 A.2d 178 (2005). “[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Id., 307-308, quoting Somers v. Statewide Grievance Committee, 245 Conn. 277, 290-91, 715 A.2d 712 (1998).
The standard of review that governs a writ of error in which an attorney disputes a trial court‘s disciplinary order similarly is well established. “[O]ur role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct.” (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn. App. 832, 837, 890 A.2d 622 (2006); see also Smith v. Muellner, 283 Conn. 510, 517, 932 A.2d 382 (2007). In conducting our review, we must decide whether the trial court‘s conclusion is supported by clear and convincing evidence; Briggs v. McWeeny, 260 Conn. 296, 322-23, 796 A.2d 516 (2002); mindful that “[t]he weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Dixon, 62 Conn. App. 507, 511, 772 A.2d 160 (2001).
Guided by these principles, we will divide our review of the plaintiff‘s challenges to the court‘s decision into three parts. We will first consider his claims with respect to the court‘s decision finding him in violation of rules 3.1 and 3.3 because of his persistent reiteration of his argument that state‘s exhibit eleven was inadmissible into evidence because it was a document protected by the attorney-client privilege. We will then consider his claims with respect to the court‘s decision finding him in violation of rules 1.2 and 8.4 because of his request for a judicial investigation into the alteration of the communication between his client and her former counsel that came into evidence as state‘s exhibit eleven. Finally, we will address the propriety of the sanctions imposed on the plaintiff by the court.
II
We begin our analysis of the merits of the plaintiff‘s writ of error by addressing the trial court‘s disciplinary findings with respect to his invocation of the attorney-client privilege. The court found that, in ignoring settled law, the plaintiff violated rule 3.1 because he lacked a good faith basis for his claim that exhibit eleven was protected by an “unwaived attorney-client privilege.” In addition, the court found that the plaintiff violated rule 3.3 (a) (1) because his persistence in ignoring the undisputed law of attorney-client privilege demonstrated “a lack of candor with the court.” We agree with both of these findings.
Rule 3.1
Rule 3.1 prohibits an attorney from filing frivolous claims. As of 2003, the rule provided in relevant part: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous . . . .”11 Rules of Professional Conduct (2003) 3.1. In Texaco, Inc. v. Golart, 206 Conn. 454, 464, 538 A.2d 1017 (1988), our Supreme Court concluded that an “action is frivolous . . . if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”12 (Internal quotation marks omitted.)
The objective “reasonable attorney” standard governs the determination of whether a lawyer‘s claim is frivolous. See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 255, 828 A.2d 64 (2003); Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 615, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007); 2 G. Hazard & W. Hodes, The Law of Lawyering (3d Ed. Sup. 2007) § 27.12 (“[r]ule 3.1 adopts an objective as opposed to a subjective standard“); 2 Restatement (Third), Law Governing Lawyers § 110, comment (d), p. 172 (2000) (“frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it“). In addition, we recently have recognized that, although a claim need
The trial court concluded that the plaintiff‘s repeated assertion that exhibit eleven was “absolutely protected by the unwaived attorney-client privilege” violated rule 3.1 because the plaintiff ignored settled law that an attorney‘s failure to make a timely objection to the admission of a document is a waiver of the privilege. We agree with the court that even a modicum of legal research would have informed the plaintiff that his belated assertion of the privilege was frivolous.
“The power to waive the attorney-client privilege rests with the client or with his attorney acting with his authority. 1 C. McCormick, Evidence (4th Ed. 1992) § 93, p. 341; see also Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931). . . . [I]f the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to communications so disclosed. 1 C. McCormick, supra, § 93, p. 343. This result is reached because once the confidence protected has been breached, the privilege has no valid continuing office to perform.” (Internal quotation marks omitted.) Gebbie v. Cadle Co., 49 Conn. App. 265, 274, 714 A.2d 678 (1998).13
In the absence of any dispute about the underlying facts, we conclude that the trial court properly found, by clear and convincing evidence, that the plaintiff violated rule 3.1 of the Rules of Professional Conduct. The plaintiff‘s continued assertion of an attorney-client privilege that he had waived was inexcusable and unprofessional.
B
Rule 3.3 (a) (1)
Rule 3.3 requires an attorney to act with candor toward the tribunal. As of 2003, the rule stated in relevant part: “(a) A lawyer shall not knowingly: (1) Make a false statement of material fact or law to a tribunal . . . .”14 Rules of Professional Conduct (2003) 3.3. The commentary to rule 3.3 provides: “Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.”15 Rules of Professional Conduct 3.3, commentary. The commentary also states: “There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” Id.; see also McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 441 n.14, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
The trial court found that the plaintiff had violated rule 3.3 by “making the claim of attorney-client privilege and yet, apparently, making no effort to review the
The plaintiff cannot and does not disagree with the trial court‘s description of his repeated representations about the validity of his attorney-client privilege representations at trial. Despite his own failure to object to the admission of exhibit eleven into evidence, he again and again faulted the prosecutor for having violated T‘s attorney-client privilege.16
The plaintiff defends his persistence in his claim of privilege by arguing that his waiver of the privilege was ineffective because it was not voluntary and intelligent. He argues that, until T discovered the original e-mail between herself and her dissolution counsel, he did not have an opportunity properly to appraise the admissibility of exhibit eleven. We are not persuaded. As the trial court points out, before the prosecutor moved for admission of exhibit eleven into evidence, he elicited from T the fact that the exhibit was a communication with her attorney. The plaintiff was then shown a copy
On this state of the record, we must uphold the trial court‘s finding that the plaintiff‘s knowing and unjustifiable persistence in misrepresenting the law constituted a lack of candor with the court that justified the imposition of sanctions under rule 3.3 of the Rules of Professional Conduct. The plaintiff‘s personal belief that the facts of record permitted an argument that he had not waived the privilege was never buttressed by a single citation of supporting authority.17 The trial court‘s finding, therefore, was supported by clear and convincing evidence. See Briggs v. McWeeny, supra, 260 Conn. 322-23.
III
We turn now to the trial court‘s determination that, by filing a motion for judicial investigation into the circumstances that permitted an altered document to be admitted into evidence at T‘s criminal trial, the plaintiff violated rules 1.2 and 8.4 (4) of the Rules of Professional Conduct. The trial court found that the plaintiff violated rule 1.2 because he did not make his request in his own capacity as an officer of the court. The court found that the plaintiff violated rule 8.4 (4) by pursuing claims on behalf of his client that improperly insinuated wrongdoing by the office of the state‘s attorney. We address each violation in turn.
Rule 1.2
Rule 1.2 concerns the scope of representation and allocation of authority between the client and the lawyer. In 2003, rule 1.2 (e) required a lawyer to advise the client about limitations on the lawyer‘s conduct that are contained in the Rules of Professional Conduct or other law.18 The commentary to rule 1.2 stated in relevant part that “a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so.” Rules of Professional Conduct (2003) 1.2, commentary. The trial court found that, in asking for an investigation into the auspices of state‘s exhibit eleven, the plaintiff had acted, not as an officer of the court, but out of “a desire to fulfill [T‘s] wishes and a complete abandonment of any duty whatsoever to the court.” Faulting the plaintiff for having moved for a judicial inquiry without any factual support for his allegations of official misconduct, the court found that the plaintiff lacked a good faith basis for his challenge to the integrity of the judicial process.
The court‘s finding of professional ineptitude on the part of the plaintiff cannot be faulted. It is clear that the plaintiff never presented, either orally or in his affidavits, sufficient evidence for the court to have had a reasonable belief that a government entity had altered the e-mail between T and her dissolution attorney. He repeatedly acquiesced in the court‘s exoneration of the state‘s attorney19 and acknowledged the difficulties inherent in his invocation of
It is not equally clear, however, that the plaintiff‘s failure to assist the court more fully in pursuing the inquiry that he himself had requested is clear and convincing evidence that the plaintiff did not act in good faith. The fact remains that, albeit inadvertently, the prosecutor introduced an altered document into evidence at T‘s criminal trial.20 If T had not kept good records herself, the adverse inferences that a jury might have drawn from state‘s exhibit eleven might not have been rebutted. Unlike the circumstances before this court in Brunswick v. Statewide Grievance Committee, supra, 103 Conn. App. 601, in this case, someone brought to the prosecutor an altered document that was entered into court proceedings.21
Although the plaintiff‘s presentation of this vexing case left much to be desired, his complaint about the alteration of a crucial trial document must be placed within the proper context. Voicing a complaint about a fraud on the court was fully consistent with basic jurisprudential principles that undergird our judicial system. Unquestionably, the trial court has a “continuing obligation to see that no falsehood or fraud was perpetrated on the court.” LaBow v. LaBow, 13 Conn. App. 330, 339, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “A judge should participate in establishing, maintaining, and enforcing . . . high
We conclude, therefore, that the court‘s finding that the plaintiff violated rule 1.2 of the Rules of Professional Conduct because he did not act in good faith in seeking an investigation was not supported by clear and convincing evidence. Accordingly, we grant the writ of error as to this disciplinary finding.
B
Rule 8.4 (4)
Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to . . . (4) Engage in conduct that is prejudicial to the administration of justice . . . .” The trial court again found that the plaintiff improperly had requested an investigation “to provide some answers for [T].” The specific grounds on which the court relied, however, were: “In counsel‘s motion and in argument before the court, counsel did insinuate wrongdoing by the office of the state‘s attorney. The state‘s attorney‘s office is not above reproach. However, these baseless claims did call into question the integrity of the state‘s attorney‘s office. There was significant media attention
On the basis of these findings, the court concluded that the record demonstrated, by clear and convincing evidence, that the plaintiff lacked good faith in asking for an investigation into the circumstances leading to an introduction of state‘s exhibit eleven into evidence. 23 In the court‘s view, the plaintiff‘s failure to articulate legally viable grounds, coupled with what the court perceived to be an unprincipled attack on the integrity of the state‘s attorney‘s office, demonstrated that the plaintiff had abandoned his professional obligations to the court.
Standing by itself, the court‘s finding that the plaintiff lacked an evidentiary basis for accusing the prosecutor of misconduct cannot be faulted. Part of the plaintiff‘s original motion reasonably can be read to have implied that the state‘s attorney‘s office might have run afoul of ethical and legal norms. The plaintiff never presented a factual basis for a reasonable belief that a government entity had altered the e-mail. Furthermore, when the prosecutor furnished the court an affidavit unequivo
The court‘s accurate recital of the record, however, attaches no significance to other undisputed facts of record. Although the plaintiff was unable to explain how the altered document that was entered into evidence as state‘s exhibit eleven came into the possession of the prosecutor, the record establishes unequivocally that the prosecutor did receive an altered document and did present the altered document in court. Albeit innocently, the prosecutor enabled someone to engage in fraudulent conduct that was prejudicial to our justice system. 24 The fortuity that a serious prejudice was avoided by T‘s conscientious recordkeeping does not negate the seriousness of what transpired in the courtroom on July 1, 2003.
The record, moreover, is replete with statements demonstrating that the plaintiff‘s request for an inquiry was not limited to his questioning of the role of the prosecutor in introducing exhibit eleven. Time and again, well in advance of the prosecutor‘s submission of his affidavit, the plaintiff stated that he would accept, without question, a statement from the prosecutor disclaiming any role in the alteration of the exhibit. 25 He acknowledged that
Although the plaintiff was not as articulate an advocate of his position as one might have wished, the record shows that he was understandably taken aback by the
The question before us, then, is whether the record, viewed as a whole, demonstrates, by clear and convincing evidence, that the plaintiff did not act in good faith in initially questioning the role of the state‘s attorney in the introduction of exhibit eleven into evidence at T‘s trial and that this conduct was “prejudicial to the administration of justice” in violation of rule 8.4 (4). Our review of the record persuades us that the court‘s finding cannot be sustained because it fails to attach significance to the totality of the evidence of what transpired in the underlying criminal case. An attorney who, even inartfully, brings the introduction of an altered document to the attention of a court performs a service for the integrity of the judiciary. 26 Accordingly, we grant the plaintiff‘s writ of error with respect to this disciplinary finding.
IV
Our final inquiry addresses the propriety of the sanctions that the court imposed on the plaintiff. Unpersuaded by the plaintiff‘s petition not to impose sanctions, the court fined him $100 for each of the four violations of the Rules of Professional Conduct that the court found the plaintiff to have committed. In addition, the court ordered him forthwith to participate in twenty
Our decision that the evidence of record did not establish the plaintiff‘s violation of two of the four Rules of Professional Conduct for which he was sanctioned requires us to set aside $200 of the fines that the trial court required the plaintiff to pay. With respect to the court‘s order for attendance at legal education classes, and enforcement of the remaining $200 fine, we remand the case for a further hearing. 27
The writ of error is granted in part and the case is remanded to the Superior Court with direction to vacate that part of the order in which that court found that the plaintiff violated rules 1.2 and 8.4 and for further proceedings consistent with this opinion. The writ of error is denied with respect to the court‘s findings that the plaintiff violated rules 3.1 and 3.3 of the Rules of Professional Conduct.
In this opinion McLACHLAN, J., concurred.
DIPENTIMA, J., concurring in part and dissenting in part. I respectfully dissent from the judgment reached by my colleagues. I agree with the thorough, thoughtful analysis and conclusions of the majority that the plaintiff in error, John F. O‘Brien (plaintiff), violated rules 3.1 and 3.3 of the Rules of Professional Conduct. I further join in the majority‘s opinion that the trial court
As a preliminary matter, I note my agreement with the comprehensive recitation of the factual and procedural history set forth in the majority opinion. 1 On the basis of my review of this history, several key points emerge. First, the plaintiff failed to appreciate the significance of requesting an inquiry pursuant to
Second, the plaintiff never was able to provide the court with an evidentiary basis to support the claim that an agent of the government had committed a crime. 6 I acknowledge that a comparison of the state‘s exhibit eleven and T‘s exhibit F reveal that the document had been altered. Moreover, the belief that a violation of
Third, there were inconsistencies between the plaintiff‘s words and actions. For example, on more than one occasion, the plaintiff expressed his belief in the professional integrity of the prosecutor, assistant state‘s attorney David L. Zagaja. Throughout the entire proceeding, however, the plaintiff lobbed accusations of wrongdoing that necessarily implicated both Zagaja and the office of the state‘s attorney. Additionally, the plaintiff seemed to acknowledge that if the state would provide an affidavit detailing the manner in which it received the document in question, the need for an investigation would be obviated. 8 Despite receiving such a sworn statement from Zagaja, the plaintiff did not withdraw the request for a
The court‘s finding that the plaintiff violated rule 8.4 was premised on the fact that his baseless claims called into question the integrity of the state‘s attorney‘s office. The court then observed: “Frankly, what caused me more concern—and I can understand how sometimes you might get carried away during a trial. But what caused me more concern in reading your reply that
Finally, I share in the concerns set forth by my colleagues regarding the introduction of an altered e-mail into evidence during a court proceeding. 11 However, the choice of redress and the manner employed by the plaintiff, by the express language used in
With these points in mind, I turn my attention to whether the plaintiff‘s conduct constituted a violation of rule 8.4. “[R]ule 8.4 (4) of the Rules of Professional
I further note that this court has rejected the argument that a violation of rule 8.4 (4) requires the element of intent. In Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 210-11, 804 A.2d 1027 (2002), we stated: “Judges no less than lawyers are chargeable for deviations from the codes governing their conduct, even though the application of the canons to particular circumstances may not be readily apparent. . . . A judge may be sanctioned for a wilful violation of one of the canons of judicial conduct if he intended to engage in the conduct for which he is sanctioned whether or not [he] knows that he violates the rule. . . . That reasoning equally is applicable to lawyers and, therefore, we conclude that the court properly held that rule 8.4 (4) does not have a scienter requirement. . . . Trial courts that have considered claims of violations of other ethical rules have held that those rules also contain no scienter requirement. See, e.g., . . . Gersten v. Statewide Grievance Committee, judicial
A cursory review of the cases in which a violation of rule 8.4 (4) has been found is appropriate. In Notopoulos v. Statewide Grievance Committee, supra, 277 Conn. 218, our Supreme Court determined that the statewide grievance committee properly found a violation when an attorney wrote a letter to a member of a probate judge‘s staff accusing the judge of extorting money for an alleged “crony.” In Daniels v. Statewide Grievance Committee, supra, 72 Conn. App. 207, the attorney was reprimanded after he was found to have violated rule 8.4 (4) by failing to pay in a timely manner the judgment that had been rendered against him. In Statewide Grievance Committee v. Whitney, 227 Conn. 829, 830, 633 A.2d 296 (1993), the Superior Court ordered the one year suspension of an attorney who had refused on several occasions to attend a pretrial conference in a criminal matter.
As a final matter, I now turn to the issue of the propriety of the sanctions against the plaintiff. As I noted at the outset, I am in agreement with the majority that the court properly found violations of rules 3.1 and 3.3. I further agree that the court improperly found a violation of rule 1.2 and would grant the writ of error solely as to that claim. In my view, the monetary sanctions imposed by the court are readily divisible. Accordingly, I would set aside $100 of the fines imposed by the trial court. Finally, I agree with my colleagues that a remand with instructions for the trial court to determine whether the plaintiff should be required to attend a legal education class is proper.
I respectfully concur in part and dissent in part.
Notes
Canon 1 of the Code of Judicial Conduct provides: “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
Canon 2 (a) of the Code of Judicial Conduct provides: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Canon 3 (b) (3) of the Code of Judicial Conduct provides in relevant part: “A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.”
I note that the plaintiff complained that the state‘s attorney‘s office improperly (1) failed to investigate the origin of the document, (2) failed to consider the attorney-client privilege, (3) used the document in an attempt to impeach the character of T, for whom he had been trial counsel in a prior criminal matter, and (4) failed to disclose the document prior to T‘s criminal trial.“The Court: But see, I am in the dark here. What if it came—if it came from the outside to [the prosecutor] in that fashion. I realize [you‘re] claiming it is still attorney-client, but let me just say about the tampering business.
“[The Plaintiff in Error]: That is the answer then, Your Honor. That‘s the answer. Then, let the state provide an affidavit to Your Honor that we received it in such a fashion. . . . And then the whole matter—the whole matter is arguably finished, except for the person who provided a tampered document to the state‘s attorney.”
Furthermore, as noted by the majority, the court concluded that there were “no valid reasons” and “no empirical facts” that would afford the court “a reasonable belief that the assistant state‘s attorney [or] any other attorney or member of a governmental agency . . . had knowledge of, or participated in, the purported deletion of the subject five lines from state‘s exhibit [eleven].”