Connecticut lawyers facing serious disciplinary charges in the state have long had a career-saving option. If suspended or severely sanctioned, those licensed in another state could simply move there and keep practicing.
But the Judges of the Superior Court voted in June to close that loophole. In doing so, they addressed concerns that lawyers who faced allegations of serious misconduct were able to resign from the Connecticut bar without making any admissions or having any findings of misconduct on their record. They could then set up shop in New York, Massachusetts or elsewhere, without disciplinary authorities in those jurisdictions having any inkling of the Connecticut proceedings.
Under the new rule, Connecticut attorneys won’t be able to resign without acknowledging they were the subject of a Statewide Grievance Committee investigation. That acknowledgment will then beome part of the public record that Connecticut disciplinary authorities share with their brethren in other states.
“I really think this was the right thing to do,” said Patricia King, the state’s interim chief disciplinary counsel. “This will provide some comfort to our neighboring states.”
The old procedure, which Connecticut shared with only a handful of other states, allowed a lawyer to resign under Section 2-52 of the Practice Book and end a disciplinary investigation. That had the effect of hiding the nature of the conduct being investigated from the public record.
The rule change is in response to a few incidents that raised the blood pressure of bar officials in neighboring jurisdictions. The most notable was the 2006 case of then-attorney Paul M. Ngobeni, who was accused of failing to assist clients who had paid him to represent them in immigration matters. Ngobeni resigned his law license in Connecticut amidst a pending suspension order and then tried to practice in Massachusetts.
Because there was no finding of wrongdoing in Ngobeni’s Connecticut record, his effort to practice in Massachusetts wound up in the court for several years, while authorities argued his Massachusetts license should be suspended as well, because of the Connecticut bar complaint.
Masschusetts authorities ultimately prevailed, after its Supreme Judicial Court relied in part on a similar decision, Anusavice v. Board of Registration in Dentistry, in which a dentist was restricted from Massachusetts practice because of disciplinary action in Rhode Island.
Finding Of Misconduct
The new rule requires a Connecticut lawyer seeking to resign to submit to grievance officials an affidavit that either admits to the misconduct or denies the allegations, but acknowledges there is clear and convincing evidence to prove them.
Disciplinary officials will then be required to make a finding of misconduct, so as to provide a record of conduct for “disciplinary authorities in other jurisdictions where the attorney is admitted or may seek admission,” the rule revision states.
If the attorney opts to waive the right to reapply any time in the future, they will have to submit an affidavit saying so.
Although it doesn’t happen all the time, King said, there have been other cases where Connecticut lawyers have resigned amidst allegations of serious wrongdoing and then tried to practice in Massachusetts or New York. Often, a related criminal charge has come into play and has alerted out-of-state officials of the type of behavior alleged. That, in turn, has prevented the lawyer from practicing.
But not all resigning lawyers desire to practice somewhere else. Those who simply want out of the profession will no longer be able to resign without having the black mark of misconduct against them. Ron Murphy, a New Britain defense lawyer with The Advocates Law Firm and former ethics professor at the University of Connecticut School of Law, objects to the new rule, saying it “paints all people facing discipline with too broad a brush.”
“It is unfortunate,” he said, “because there are some cases where a finding of misconduct would be misleading.”
For example, Murphy said, a number of years ago he represented an attorney who resigned in the middle of an ethics complaint that claimed she had not been providing effective counsel. “[A] medical condition had interfered with her ability to be an effective lawyer,” he said. “It wasn’t intentional misconduct on her part.”
She resigned from the Connecticut bar, he said, to avoid the ordeal of going through a full disciplinary review. “Why saddle a lawyer under those circumstances with that type of burden? Someone who has a medical condition and does not want to play it out in public.” Murphy said the disciplinary rules should take into account individual circumstances. “There are other ways to achieve the same results without so strict a rule,” he said.
At the same time, Murphy said, he can understand why Connecticut would want its lawyers to have the same resignation rules as its neighboring states. New York and Massachusetts, along with 10 other states, require that, as a condition of resignation, a lawyer charged with misconduct admit to wrongdoing or at least acknowledge the existence of strong evidence.
An additional 25 states don’t let lawyers to resign under such circumstances but force them to sign consent to disbarment. Connecticut, Massachusetts and New York all let lawyers who are disbarred reapply after seven or eight years.
But Steven Seligman, of Katz and Seligman in Hartford, a defense lawyer who represents lawyers accused of ethics violations, said he sees “no evil” in the rule. “It does not strike me as a rule that will generate that much protection for public in the new state where the lawyer is seeking to practice,” he said. “And I don’t see it as a rule that reeks of unfairness for Connecticut lawyers either.”
If anything, he said, the new rule will only affect a small number of cases and is “somewhat superfluous.”
“Because if someone is resigning from the Connecticut bar with his waiver of right to reapply,” Seligman said, “that’s going to be a red flag for bar recipricosity officials in other states.”
‘Protection Of Public’
King acknowledged that in the Ngobeni matter, officials in Massachusetts “were not too happy” with the old Connecticut rule, which the former Connecticut lawyer and South African citizen had argued protected him because there was no finding of probable cause made.
“He argued that we would have to prosecute him on misconduct allegations here,” said Nancy Kaufman, first assistant bar counsel for the Office of Bar Counsel in Massachusetts. “We had to litigate that issue here.”
She commended the decision to change the rules in Connecticut. “If someone has a disciplinary sanction in Connecticut, they should have a sanction here, too. They should not be able to just cross the state line.”
Ronald Minkoff, one of New York’s leading practitioners in the field of attorney ethics and a member of an American Bar Association committee that focuses on attorney conduct, said the latest change makes Connecticut’s rule very close to New York’s. “Obviously, it’s a good thing for the protection of the public to have information available about an attorney who does bad things.”
Minkoff, of Frankfurt Kurnit Klein & Selz in New York City, said there has been a trend in recent years to make attorney discipline more public. “Attorney discipline as we know it has only existed anywhere for the past 40 years or so,” he said.
A very important aspect of attorney discipline, and one reflected in Connecticut’s rule change, Minkoff said, “is deterrence, and letting the public know that an attorney will be punished if they do something wrong.”•