216 Conn. 135 | Conn. | 1990
This is an appeal by the defendant, Daniel V. Presnick, an attorney at law, from a judgment of the Superior Court that disbarred him from the practice of law. The principal issues are: (1) whether the statewide grievance committee functions as an unconstitutionally created court in violation of article fifth, § 1 of the Connecticut constitution; (2) whether the court mistakenly ordered a suspension without finding that the defendant had acted out of a corrupt motive or evil intent; (3) whether the court mistakenly imposed a sanction in excess of that ordered by the Appellate Court; (4) whether the court mistakenly denied a motion to dismiss for improper service of process; (5) whether
The majority of the issues raised by the defendant have been addressed and disposed of in prior appeals. See Statewide Grievance Committee v. Presnick, 215 Conn. 162, 575 A.2d 210 (1990) (Presnick I); Statewide Grievance Committee v. Presnick, 216 Conn. 127, 577 A.2d 1054 (1990) (Presnick II). The only issue remaining is the question of whether the defendant’s disbarment was improperly based, in part, on issues that had been the subject of an earlier proceeding. We conclude that this is the case and reverse the decision of the trial court and remand the matter for further proceedings.
The defendant argues that the resolution in his favor of allegations that he mishandled an adoption matter in Presnick I, precludes relitigation of this issue here in Presnick III. The record discloses that on January 5, 1989, the plaintiff filed a presentment of attorney misconduct, Presnick I, alleging, inter alia, that the defendant had failed to obtain an adoption for Kathy Jean Carney after she had engaged him to do so.
On July 7, 1989, the plaintiff filed another presentment of attorney misconduct, Presnick III, alleging, inter alia, that the defendant had been guilty of violating other rules of professional conduct in his handling of the same adoption matter.
A comparison of the two records adequately supports the defendant’s contention that the statewide grievance committee had the opportunity to, and did in fact, litigate fully the issue of delay, whether ascribable to the defendant or to others, in the earlier proceeding.
Despite its sui generis character, we see no reason why a presentment should proceed in a piecemeal fashion and why basic concepts of res judicata are not equally applicable to presentment proceedings. “Res judicata, as a judicial doctrine . . . should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being ‘(1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose . . . . ’ ” State v. Ellis, 197 Conn. 436, 465-66, 497 A.2d 974 (1985).
Because the trial court based its sanction, in part, upon allegations that had been litigated in a prior presentment action, the judgment is reversed and the case is remanded to the trial court for reconsideration of the sanction, excluding the findings in connection with the adoption proceeding.
In this opinion the other justices concurred.
The statewide grievance committee alleged that Presnick violated, inter alia, Rules 1.5,1.15 and 8.4 of the Rules of Professional Conduct by failing to inform his client of the basis of his fee, by charging an excessive fee, by engaging in fraud by signing a client’s check without consent and by failing to obtain the adoption. Statewide Grievance Committee v. Presnick, 215 Conn. 162, 164, 575 A.2d 210 (1990).
Included in count II of the presentment are the claims that the defendant violated Rules 1.1,1.2,1.3,1.4, 3.2, 3.3 and 8.4 of the Rules of Professional Conduct by failing properly to communicate with his client, failing to keep his client informed, making false statements to a judge, failing to pursue diligently and competently an adoption proceeding and failing to abide by a court order.
The defendant attempted to raise the issue of res judicata by way of a motion to strike. “[R]es judicata must be specially pleaded . . . .’’Practice Book § 164. Despite this procedural irregularity, the issue of res judicata was considered by the trial court and was briefed and argued before this court without objection by opposing counsel. “This court has often held that the failure to file a special defense may be treated as waived when no objection has been raised to the offer of evidence on the issue.” Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987).
The trial court found that the defendant violated Rule 1.1 by failing to use the skill reasonably necessary to represent his client, Rule 1.2 by failing to abide by his client’s decisions, Rule 1.3 by failing to act diligently and promptly in obtaining the adoption, Rule 1.4 by failing to keep his client informed of the proceedings and failing to respond to his client’s requests, Rule 3.2 by failing to proceed with the adoption, Rule 3.3 by knowingly making false statements to a judge and Rule 8.4 by a course of conduct demonstrating dishonesty, deceit and engaging in conduct prejudicial to the administration of justice.
It should be noted that under Practice Book § 27B (d) (1), a grievance panel has the power, “[o]n its own motion or on complaint of any person, [to] inquire into and investigate offenses whether or not occurring in the actual presence of the court . . . .” Thus the committee has the power to investigate matters on its own even if they have not been raised directly by the complaint of an aggrieved client.