Attorney Mark Dubois ()
At best, handicapping our Supreme Court is an inexact science, but if several recent cases give any indication, I think the pendulum there is swinging in favor of attorneys in discipline matters.
Last December, in a case called Parnoff, the court clarified the level of intent needed to prove “knowing misappropriation” when an attorney takes a client’s money and triggers the automatic 12-year disbarment provisions of the Practice Book, adding an element of intent. I was a bit surprised by the result, as I had proposed using “willful and intentional” when I wrote the initial version of the rule. These terms were replaced by “knowing” in the final version, so I always figured that the idea had been to lower the level of intent needed to invoke the rule’s harsh provisions. Now willfulness and intentionality are read into it, raising disciplinary counsel’s burden of proof in a misappropriation case. Score one for the bar.
More recently, in a just-released case called Elder, the court again waded into the law of lawyer discipline, holding that what we all thought was a screening rule concerning when lawyer discipline cases became stale was really a statute of limitations. The rule had originally been drafted by a CBA committee, working with the Statewide Bar Counsel, to give this office flexibility to dismiss facially invalid claims for the sake of saving administrative resources and was enforced that way for many years. None of us ever thought it was designed to create substantive rights or defenses, rather just to give bar counsel the ability to weed out some of the chaff so they could concentrate on real cases. In Elder, however, the court held that the rule’s six-year staleness test was really a mandatory statute of repose. Score another for the bar.
The same court just heard argument on a case called Rozbicki, where a judge suspended a lawyer for a pattern of making claims, including “judicial misconduct, judicial bias, judicial prejudice and judicial self-interest,” against two judges. Before Parnoff and Elder, I would have bet that Rozbicki would have been a per curiam decision affirming the lower court. Now I’m not so sure.
The law concerning lawyers calling judges names or making unfounded claims is fairly well established. In a case called Notopoulos, a lawyer was disciplined for accusing a judge of “extortion” and funding “a private Marshall Plan for the support, care and feeding of his crony.” In two different cases involving an attorney named Burton, discipline was imposed for unsubstantiated claims of bias and corruption. What is different from those cases and Rozbicki is that in all of them, judges either complained of the conduct or imposed discipline on their own motion. In Rozbicki, neither of the judges imposed discipline or referred the matter. While the trial judge didn’t find this a distinction with a difference, I am not so sure.
There’s a provision in the same screening rule at play in Elder which provides that the grievance authorities have no jurisdiction when the misconduct complained of occurs before a court and it “render(s) a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee.” The trial judge in Rozbicki refused to hold that a judge’s not acting when s/he was aware of misconduct was the same as rendering a decision that no disciplinary referral should be made. But Section 2.15(b) and (c) of the Code of Judicial Conduct mandate that judges having knowledge of or receiving information regarding a lawyer’s misconduct that “raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” shall take appropriate action, including informing the appropriate authorities. Presumably, a judge not acting on such information may well be tantamount to determining that the conduct did not warrant action.
Section 2.15 of the code did not exist when the original screening rule was passed, but arguably when the judges adopted it, they must have understood that they were imposing heightened duties on themselves and their colleagues to police the bar. Thus, it’s not too much of a stretch to wonder whether the Supreme Court took Rozbicki from the Appellate Court to round out the trifecta of pro-lawyer disciplinary cases. Serious misconduct occurring before a court or of which a judge has been made aware of should be handled, in the first instance, by the judge or judges involved. That’s the argument the accused lawyer made in Rozbicki. After Elder, I think it might have legs.
Either way, we will have had three significant lawyer discipline decisions in about six months, which I think is some sort of record. It also means I am going to have to rewrite some of my treatise on Connecticut lawyer discipline.•