Chief Disciplinary Counsel v. Rozbicki , 326 Conn. 686 ( 2017 )

 CHIEF DISCIPLINARY COUNSEL v.
ZBIGNIEW S. ROZBICKI
(SC 19796)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Robinson, D’Auria and Vertefeuille, Js.
Syllabus
The defendant, against whom a presentment action was filed by the plaintiff,
Chief Disciplinary Counsel, appealed from the judgment of the trial
court suspending him from the practice of law for four years. The court
found, inter alia, that he had violated the Rules of Professional Conduct
by accusing two Superior Court judges of bias, prejudice, and partiality
during certain previous civil proceedings. On appeal, the defendant
claimed that the trial court deprived him of his constitutional right to due
process by admitting evidence regarding his prior disciplinary record, the
allegations set forth in the presentment complaint were barred by the
doctrines of res judicata and collateral estoppel, the plaintiff had failed
to prove professional misconduct by clear and convincing evidence, and
the trial court had abused its discretion by suspending him for a period
of four years. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court deprived him of his constitutional right to due process by allowing
the plaintiff to admit evidence of his prior professional misconduct
without adequate notice; the defendant failed to demonstrate a due
process violation that deprived him of a fair trial, as required under
State v. Golding (213 Conn. 233), as the Statewide Grievance Commit-
tee’s express consideration of his disciplinary record in directing the
plaintiff to file a presentment action provided ample notice that evidence
regarding his prior professional misconduct could be raised during the
presentment proceeding.
2. The defendant could not prevail on his claim that the doctrines of res
judicata and collateral estoppel barred the allegations of professional
misconduct set forth in the presentment complaint; this court concluded
that, because the judges presiding over the previous proceedings
declined to exercise jurisdiction, the question of whether the defendant’s
actions violated the Rules of Professional Conduct had not been litigated,
and, therefore, the allegations set forth in the presentment complaint
were not barred.
3. The trial court’s findings that the defendant had violated the Rules of
Professional Conduct were supported by clear and convincing evidence;
the trial court’s findings and conclusions were supported by ample
evidence in the record demonstrating that the defendant had made
countless motions and arguments impugning the judges for no apparent
reason beyond the fact that the judges had ruled in opposition to him.
4. The trial court did not abuse its discretion by ordering that the defendant
be suspended from the practice of law for a period of four years; the
trial court had properly considered various aggravating and mitigating
factors in determining the appropriate sanction for the defendant’s pro-
fessional misconduct and, therefore, had acted within the broad discre-
tion afforded to the Superior Court in the context of attorney
grievance proceedings.
Argued May 2—officially released September 5, 2017
Procedural History
Presentment by the plaintiff for alleged professional
misconduct by the defendant, brought to the Superior
Court in the judicial district of Litchfield and transferred
to the judicial district of Hartford, where the court,
Robaina, J., denied the defendant’s motion to dismiss;
thereafter the matter was tried to the court, Robaina, J.;
judgment suspending the defendant from the practice of
law for four years, from which the defendant
appealed. Affirmed.
Zbigniew S. Rozbicki, self-represented, the appel-
lant (defendant).
Leanne M. Larson, assistant chief disciplinary coun-
sel, for the appellee (plaintiff).
Opinion
ROBINSON, J. The defendant, Zbigniew S. Rozbicki,
an Attorney, appeals1 from the judgment of the trial
court, rendered following presentment by the plaintiff,
Chief Disciplinary Counsel, concluding that he had vio-
lated rules 3.1, 8.2 (a), and 8.4 (4) of the Rules of Profes-
sional Conduct2 and suspending him from the practice
of law for a period of four years. In challenging the trial
court’s judgment, the defendant raises a multitude of
claims, including the following: (1) that the trial court
violated his constitutional right to due process; (2) that
the allegations in the presentment were barred under
the doctrines of res judicata and collateral estoppel;
(3) that the plaintiff failed to prove professional miscon-
duct by clear and convincing evidence; and (4) that the
trial court abused its discretion in imposing a four year
suspension without considering certain factors set forth
in the American Bar Association’s Standards for Impos-
ing Lawyer Sanctions (standards). We disagree and,
accordingly, affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The grievance arises from the defen-
dant’s accusations of judicial bias, prejudice, and par-
tiality against two judges of the Superior Court, namely,
Judge Vincent E. Roche and Judge John A. Danaher.
The accusations were made in various motions, memo-
randa, and oral argument submitted and presented by
the defendant throughout extensive litigation relating
to his position as an executor of the estate of Kathleen
Gisselbrecht (decedent).3 The defendant filed several
actions against members of the decedent’s family, two
of which are most relevant to the present appeal.
In the first case, the defendant appealed from a deci-
sion of the Probate Court regarding his final accounting
as executor of the estate. See Rozbicki v. Gisselbrecht,
Superior Court, judicial district of Litchfield, Docket
No. CV-10-5007246-S (February 10, 2014). In that case,
the defendant filed a motion to stay certain orders pend-
ing resolution of a separate but related matter. That
motion was denied by Judge Roche. In response, the
defendant filed a motion to disqualify Judge Roche,
accusing him of failing ‘‘to adhere to basic principles
of judicial impartiality . . . .’’ In an affidavit filed in
support of that motion, the defendant averred that
Judge Roche’s ruling indicated ‘‘a transformation of a
judge who has a duty to be impartial, to a judge who
appears to be an advocate . . . .’’4 The defendant sub-
sequently moved to disqualify Attorney J. Michael Sco-
nyers, who represented certain members of the
decedent’s family. Judge Danaher denied that motion.
In response, the defendant moved to disqualify Judge
Danaher, claiming partiality, bias, and prejudice. Judge
Danaher also denied that motion.
In the second case, the defendant alleged that the
successor executor of the decedent’s estate improperly
denied a $20,000 claim in connection with a loan that
the defendant had allegedly made to the decedent. See
Rozbicki v. Gisselbrecht, Superior Court, judicial dis-
trict of Litchfield, Docket No. CV-10-6001830-S (Decem-
ber 19, 2011). In that case, the defendant filed another
motion to disqualify Attorney Sconyers, which Judge
Danaher denied. The defendant thereafter made an oral
motion to disqualify Judge Danaher, which was also
denied. The defendant subsequently filed a written
motion to disqualify Judge Danaher, claiming ‘‘bias,
prejudice, and partiality . . . .’’ Judge Danaher later
denied this motion in a detailed memorandum of
decision.
On December 19, 2011, Judge Roche granted the exec-
utor’s motion for summary judgment regarding the
defendant’s claims for fees and payment of the $20,000
loan. See Rozbicki v. Gisselbrecht, supra, Superior
Court, Docket No. CV-10-6001830-S. The defendant sub-
sequently moved to reargue a previous decision by
Judge Danaher denying, inter alia, a motion for an order
of compliance in connection with a dispute regarding
a deposition. In his motion to reargue, the defendant
claimed that Judge Danaher’s decision (1) was ‘‘ridden
with indications of a bias and prejudice . . . so blatant
and beyond the parameters of judicial authority and
responsibility that the decision cannot legally or ethi-
cally be sanctioned,’’ (2) demonstrated ‘‘abuse of judi-
cial power to prejudge matters and cases not before
the court and raises substantial issues of impropriety
and partiality,’’ (3) ‘‘manifested a bias and prejudice
to the [defendant] and harassment [that] violated [his]
constitutional right of access to the courts and [to] a
fair trial,’’ (4) brought the ‘‘judiciary into disrepute,’’
and (5) indicated an intent ‘‘to affect and impair the
outcome of other pending cases . . . .’’
The defendant then filed an objection to a motion
for an order regarding certain deposition costs filed
by opposing counsel. In that objection, the defendant
accused Judge Danaher of bias, prejudice, judicial
impropriety, abuse of judicial authority, and judicial
misconduct. The defendant subsequently moved to
reargue Judge Roche’s decision granting summary judg-
ment. In that motion to reargue, the defendant again
accused Judge Danaher of acting extrajudicially and in
a biased manner. Thereafter, the defendant filed a
motion to ‘‘vacate [an] extrajudicial order,’’ accusing
Judge Danaher of becoming an advocate for the oppos-
ing party, evoking profound bias and prejudice, failing
to uphold and apply the law, failing to be fair and impar-
tial, and taking a personal interest in the proceedings.
In response to these serious and repetitive accusa-
tions against Judges Roche and Danaher, Attorney Sco-
nyers filed a grievance against the defendant with the
Statewide Grievance Committee on January 11, 2012.
After a hearing, the Litchfield Judicial District Griev-
ance Panel determined that there was probable cause
to believe that the defendant had violated the Rules of
Professional Conduct. The matter was presented to the
Statewide Grievance Committee at a hearing on Febru-
ary 5, 2013, during which the defendant, represented by
counsel, testified. Thirty-seven exhibits were admitted
during that proceeding, and both the defendant and the
plaintiff filed a posthearing brief.
On July 26, 2013, the Statewide Grievance Committee
found, by clear and convincing evidence, that the defen-
dant’s ‘‘improper, baseless accusations’’ against Judges
Roche and Danaher violated rules 3.1, 8.2 (a), and 8.4
(4) of the Rules of Professional Conduct. The Statewide
Grievance Committee directed the plaintiff to file a
presentment against the defendant including the viola-
tions of those rules, and to seek the imposition of any
sanction the court deemed appropriate.
In the presentment complaint, the plaintiff accused
the defendant of violating rules 3.1, 8.2 (a), and 8.4
(4) of the Rules of Professional Conduct by making
‘‘baseless accusations’’ against Judges Roche and
Danaher. The plaintiff cited the defendant’s history of
professional discipline, including his presentment in
two cases in 1987, which resulted in a three month
suspension from the practice of law in 1992, a repri-
mand in 2006, and his presentment in two cases in
2011, which resulted in a two year suspension from the
practice of law.
Presentment proceedings were held before the trial
court.5 In a memorandum of decision dated June 16,
2015, the trial court found, by clear and convincing
evidence, that the defendant had violated rules 3.1, 8.2
(a), and 8.4 (4) of the Rules of Professional Conduct.
The trial court relied on Ansell v. Statewide Grievance
Committee, 87 Conn. App. 376, 384, 865 A.2d 1215
(2005), in rejecting the defendant’s defenses of collat-
eral estoppel and res judicata, which were based on
the argument that, because the conduct underlying the
presentment allegations occurred in the presence of
Judges Roche and Danaher, and those courts declined
to take further action, despite the authority to do so,
the defendant was absolved of any unethical conduct.
Similarly, the trial court relied on Chief Disciplinary
Counsel v. Rozbicki, 150 Conn. App. 472, 91 A.3d 932,
cert. denied, 314 Conn. 931, 102 A.3d 83 (2014), in
rejecting the defendant’s argument that the plaintiff
lacked standing to bring the presentment.
Specifically, the trial court found, by clear and con-
vincing evidence, that the defendant’s accusations
against Judges Roche and Danaher lacked good faith
and, thus, violated rule 3.1 of the Rules of Professional
Conduct. Likewise, the trial court found, by clear and
convincing evidence, that the defendant lacked ‘‘a good
faith basis’’ for making statements in support of his
various motions for disqualification and other pleadings
that attacked the integrity of the court and had, there-
fore, violated rule 8.2 of the Rules of Professional Con-
duct. Finally, the trial court found, by clear and
convincing evidence, that the defendant had violated
rule 8.4 (4) of the Rules of Professional Conduct on the
basis of his ‘‘relentless and repetitive attack on the
integrity of the court . . . [which] appear[ed] to be
personal.’’ Having determined that the defendant had
violated the Rules of Professional Conduct, the trial
court turned to the standards promulgated by the Amer-
ican Bar Association to determine the appropriate sanc-
tion. After considering these standards, the trial court
suspended the defendant from the practice of law for
four years. This appeal followed. See footnote 1 of
this opinion.
On appeal, the defendant has asserted, inter alia, the
following four claims: (1) that the trial court violated
his right to due process by allowing the plaintiff to
admit extrinsic and irrelevant evidence regarding his
previous disciplinary record; (2) that the allegations
against him were barred under the doctrines of res
judicata and collateral estoppel because Judges Roche
and Danaher failed to act pursuant to rule 2.15 of the
Code of Judicial Conduct;6 (3) that the plaintiff failed
to establish, by clear and convincing evidence, that he
violated the Rules of Professional Conduct; and (4) that
the trial court abused its discretion by suspending him
from the practice of law for four years.7 We address
each of these claims in turn. Additional relevant facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the trial court
deprived him of his right to due process8 by allowing
the plaintiff to admit extrinsic and irrelevant evidence
on issues beyond those presented to the Statewide
Grievance Committee. Specifically, the defendant con-
tends that the presentment complaint did not provide
adequate notice of the specific factual charges against
him, namely, his prior professional misconduct. In
response, the plaintiff contends that a presentment pro-
ceeding is a trial de novo, and, as such, the trial court
is not bound by the findings of the Statewide Grievance
Committee. Additionally, the plaintiff argues that,
because presentment proceedings are not a criminal or
civil trial, the complaint need not be as precise as one
expected in criminal or civil complaints, and that, there-
fore, the trial court has greater discretion to consider
any evidence received at the presentment proceeding
in order to determine an appropriate sanction. For the
reasons which follow, we conclude that the defendant
is unable to prevail on his due process claim.
‘‘It is well settled that [o]ur case law and rules of
practice generally limit [an appellate] court’s review to
issues that are distinctly raised at trial. . . . [O]nly in
[the] most exceptional circumstances can and will this
court consider a claim, constitutional or otherwise, that
has not been raised and decided in the trial court. . . .
The reason for the rule is obvious: to permit a party to
raise a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party.’’ (Citations omitted; internal quota-
tion marks omitted.) Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 142, 84 A.3d 840 (2014). However, it also is well
settled that a defendant may prevail on an unpreserved
claim when: ‘‘(1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Footnote omit-
ted.) State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989); see In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015) (modifying third prong of Golding).
In reviewing the defendant’s due process claim under
Golding,9 we begin by noting that his brief specifically
argues the following: ‘‘[The plaintiff] devoted thirty-one
paragraphs [of the presentment complaint] to a history
of allegations relating to a previous grievance. None of
the thirty-one paragraphs [was] part of the Statewide
Grievance Committee’s findings, the local panel’s find-
ings, or the reasons for [Attorney] Sconyers’ grievance.’’
The defendant then notes that, notwithstanding his
objection, the trial court allowed evidence supporting
the allegations in the complaint to be presented. The
defendant then claims the following: ‘‘[The plaintiff]
specifically narrowed the issues in the presentment, on
the record, when the [defendant] raised his objection
to [the plaintiff’s] attempt to admit extrinsic, irrelevant
and prejudicial evidence during the proceedings. The
issues were narrowed to the same issues directed by
the Statewide Grievance Committee to be included in
the presentment.’’ Finally, the defendant claims that
‘‘[t]he inclusion of the expanded broad factual allega-
tions, beyond the narrow issues limited in the present-
ment, would not have provided the appellant with
adequate notice of the specific factual charges, which
the trial court considered for the first time in its
decision.’’
In his brief discussion of this claim, it does not appear
that the defendant identified or alluded to any way in
which the trial court’s consideration of evidence regard-
ing his prior misconduct deprived him of a fair trial.
The decision of the Statewide Grievance Committee
expressly referenced the defendant’s previous profes-
sional misconduct. Specifically, in concluding that the
defendant’s conduct warranted a presentment, that
decision listed the following aggravating factors: ‘‘prior
disciplinary history, a pattern of misconduct, multiple
offenses and a refusal to acknowledge the wrongful
nature of the conduct.’’ In addition, the decision noted
that ‘‘the [defendant] is currently serving a two year
suspension as a result of a [prior] disciplinary order
. . . .’’ Thus, the defendant was provided with ample
notice that his previous misconduct could be raised at
the presentment proceeding. Consequently, we con-
clude that the defendant has failed to demonstrate a
due process violation that deprived him of a fair trial
as required under the third prong of Golding and, there-
fore, cannot prevail on his unpreserved claim.
II
We next address the defendant’s claim that, because
his alleged misconduct occurred before two different
judges who chose not to take action against him pursu-
ant to rule 2.15 of the Code of Judicial Conduct; see
footnote 6 of this opinion; he was absolved of any uneth-
ical conduct. As a result, the defendant contends that
the doctrines of res judicata10 and collateral estoppel11
precluded the trial court from considering his alleged
misconduct in the present case. In response, the plain-
tiff contends that, when a violation of the Rules of
Professional Conduct occurs before a judge of the Supe-
rior Court, an attorney is not automatically absolved
of unethical conduct by that judge’s subsequent inac-
tion. The plaintiff further argues that a judge’s decision
not to refer an attorney to disciplinary authorities does
not preclude subsequent institution of the disciplinary
process. Finally, the plaintiff contends that the princi-
ples of res judicata and collateral estoppel do not apply
to cases in which a judge has not referred a possible
disciplinary issue to the Statewide Grievance Commit-
tee. We agree with the plaintiff and conclude that the
doctrines of res judicata and collateral estoppel do not
bar the allegations of professional misconduct in the
present case.
In reviewing this claim, we note that the Appellate
Court previously considered this issue in Ansell v. State-
wide Grievance Committee, supra, 87 Conn. App. 376.
In that case, the attorney claimed that the failure of
judges to reprimand her in response to certain in court
conduct constituted clear and convincing evidence of
a determination that no misconduct had occurred. Id.,
383–84. In addressing this argument, the Appellate
Court distinguished the Superior Court, which has
‘‘inherent authority to regulate attorney conduct,’’ from
grievance panels and reviewing committees, which are
authorized ‘‘to investigate allegations of attorney mis-
conduct and to make determinations of probable
cause.’’ (Internal quotation marks omitted.) Id., 384.
Citing Practice Book § 2-45, the Appellate Court
explained that ‘‘[w]hen the misconduct occurs in the
actual presence of the court, the [Statewide Grievance
Committee] shall defer . . . if the court chooses to
exercise its jurisdiction.’’ (Emphasis in original; inter-
nal quotation marks omitted.) Id. Accordingly, the
Appellate Court concluded that ‘‘the courts chose not
to exercise their disciplinary power, and the [Statewide
Grievance Committee], exercising the power delegated
to it, properly undertook to investigate and to evaluate
the alleged misconduct.’’ Id., 385. Although we are not
bound by rulings of the Appellate Court, we are per-
suaded by its analysis of this issue. See Commission
on Human Rights & Opportunities ex rel. Arnold v.
Forvil, 302 Conn. 263, 271, 25 A.3d 632 (2011). Accord-
ingly, we disagree with the defendant’s claim that the
silence of Judges Roche and Danaher in the wake of
the defendant’s actions must be interpreted in a manner
that absolves the defendant of any professional miscon-
duct. Thus, because no judicial authority has previously
ruled on the question of whether the defendant’s actions
violated the Rules of Professional Conduct, the doc-
trines of res judicata and collateral estoppel do not
apply. Put another way, in concluding that the defen-
dant’s conduct violated the Rules of Professional Con-
duct, the trial court in the present case did not consider
issues previously litigated and decided. Accordingly,
we conclude that those doctrines do not bar the allega-
tions of misconduct made against the defendant.
III
We next address the defendant’s claim that the trial
court improperly found that the plaintiff presented clear
and convincing evidence of violations of rules 3.1, 8.2
(a), and 8.4 (4) of the Rules of Professional Conduct.
The defendant contends that (1) his various motions
and memoranda regarding Judges Roche and Danaher
contained no abusive comments or accusations criticiz-
ing their abilities or competency, (2) Judge Danaher
accused him of lying, which ‘‘created an atmosphere
of discord’’ that called for disqualification, and (3) his
allegations against Judges Roche and Danaher were
made on a good faith belief of bias and prejudice. In
response, the plaintiff argues that clear and convincing
evidence of the defendant’s professional misconduct
was introduced through both documents and testimony.
We agree with the plaintiff and conclude that the trial
court’s findings of misconduct are supported by clear
and convincing evidence.
The standard of review of a trial court’s judgment in
the context of attorney grievance proceedings is well
settled. ‘‘The trial court conducts the presentment hear-
ing de novo. . . . In determining whether the evidence
on the record supports the trial court’s conclusion, our
scope of review is of a limited nature. . . . All of our
cases agree that the trial court has . . . wide discretion
. . . . [A] reviewing court must defer to the discretion
of the fact finder, whether it be the trial court or the
committee, because the fact finder is in the best position
to evaluate the evidence and the demeanor of the par-
ties. . . . [E]very reasonable presumption should be
given in favor of the correctness of the court’s ruling.
. . . Judicial discretion is always a legal discretion. Its
abuse will not be interfered with on appeal to this court
except in a case of manifest abuse and where injustice
appears to have been done.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) State-
wide Grievance Committee v. Egbarin, 61 Conn. App.
445, 458–59, 767 A.2d 732, cert. denied, 255 Conn. 949,
769 A.2d 64 (2001).
In order to impose sanctions, the trial court must find
that an attorney has violated the Rules of Professional
Conduct by clear and convincing evidence. Shelton v.
Statewide Grievance Committee, 277 Conn. 99, 109–10,
890 A.2d 104 (2006). ‘‘Clear and convincing proof is a
demanding standard denot[ing] 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 substan-
tially greater than the probability that they are false or
do not exist.’’ (Internal quotation marks omitted.) Id.,
110. We review each of the trial court’s findings of
misconduct in turn.
Rule 3.1 of the Rules of Professional Conduct pro-
vides in relevant part: ‘‘A lawyer shall not bring or
defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing
so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of
existing law. . . .’’ The commentary to this rule clarifies
what is considered to be a frivolous action, providing
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. . . .’’ Rules of Professional
Conduct 3.1, commentary; see also, e.g., Rozbicki v.
Statewide Grievance Committee, 111 Conn. App. 239,
240–41, 958 A.2d 812 (2008) (frivolously filing motion
to disqualify opposing counsel by citing his sexual affair
with client and describing couple’s child as illegitimate
violated rule 3.1), cert. denied, 290 Conn. 908, 964 A.2d
544 (2009); Brunswick v. Statewide Grievance Com-
mittee, 103 Conn. App. 601, 614–18, 931 A.2d 319 (alleg-
ing partiality of arbitrators without any support violated
rule 3.1), cert. denied, 284 Conn. 929, 934 A.2d 244
(2007).
In the present case, as to rule 3.1 of the Rules of
Professional Conduct, the trial court found that the
defendant’s actions amounted to frivolous, baseless
accusations against Judges Roche and Danaher and that
these assertions were not made in good faith. The trial
court found that there was clear and convincing evi-
dence demonstrating that the defendant ‘‘repeatedly
impugned the integrity’’ of Judges Roche and Danaher
and ‘‘made a significant number of allegations as to
judicial misconduct, judicial bias, judicial prejudice,
and judicial self-interest.’’ In examining these accusa-
tions, the trial court found that the defendant offered
no good faith basis for them, and that his allegations
were meritless and without support. The trial court
noted that many of the defendant’s pleadings were filed
shortly after an adverse ruling or decision. Ultimately,
the trial court concluded that ‘‘[t]he sweeping,
unfounded and oft repeated accusations alleging judi-
cial misconduct, judicial bias, judicial prejudice, judicial
harassment are found by clear and convincing evidence
to be lacking in good faith and, as such, violated rule
3.1 . . . .’’
Rule 8.2 (a) of the Rules of Professional Conduct
provides in relevant part: ‘‘A lawyer shall not make a
statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning
the qualifications or integrity of a judge . . . .’’ See
also, e.g., Notopoulos v. Statewide Grievance Commit-
tee, 277 Conn. 218, 228–31, 890 A.2d 509 (accusing judge
of extorting money, resorting to threats, and lining
pockets with client’s funds without factual support vio-
lated rule 8.2 [a]), cert. denied, 549 U.S. 823, 127 S. Ct.
157, 166 L. Ed. 2d 39 (2006); Burton v. Mottolese, 267
Conn. 1, 51–52, 835 A.2d 998 (2003) (conclusory and
unsubstantiated allegations of trial court’s gender bias
violated rule 8.2 [a]), cert. denied, 541 U.S. 1073, 124
S. Ct. 2422, 158 L. Ed. 2d 983 (2004).
In the present case, as to rule 8.2 (a) of the Rules of
Professional Conduct, the trial court found, by clear
and convincing evidence, that the defendant’s lack of
a good faith basis for his statements impugning the
integrity of Judges Roche and Danaher constituted mis-
conduct. The trial court clarified that the basis for this
violation ‘‘is not the fact that the motions [were] made or
that they [were] repeated. Instead it is the unsupported,
baseless allegations of judicial impropriety which make
[the defendant’s conduct] improper.’’ See also, e.g., Dis-
ciplinary Counsel v. Serafinowicz, 160 Conn. App. 92,
95–97, 123 A.3d 1279 (attorney’s disparaging remarks
about judge to press accusing him of bias violated rule
8.2 [a]), cert. denied, 319 Conn. 953, 125 A.3d 531 (2015).
Finally, rule 8.4 of the Rules of Professional Conduct
provides in relevant part: ‘‘It is professional misconduct
for a lawyer to . . . (4) [e]ngage in conduct that is
prejudicial to the administration of justice . . . .’’ The
commentary to this rule provides that ‘‘[a] pattern of
repeated offenses, even ones of minor significance
when considered separately, can indicate indifference
to legal obligation.’’ Rules of Professional Conduct 8.4,
commentary; see also, e.g., Statewide Grievance Com-
mittee v. Burton, 299 Conn. 405, 409–15, 10 A.3d 507
(2011) (submitting letters to Chief Justice accusing
Superior Court judges of judicial corruption with no
factual support violated rule 8.4 [4]); Notopoulos v.
Statewide Grievance Committee, supra, 277 Conn.
236–37 (making disparaging, baseless remarks against
judge violated rule 8.4 [4]); Disciplinary Counsel v.
Serafinowicz, supra, 160 Conn. App. 92–97 (attorney’s
disparaging remarks to press accusing judge of bias
violated rule 8.4 [4]).
In the present case, as to rule 8.4 (4) of the Rules of
Professional Conduct, the trial court found, by clear
and convincing evidence, that the defendant’s relentless
and repetitive attacks on the integrity of Judges Roche
and Danaher constituted a violation of this rule. The
trial court considered the findings made by the court
in the defendant’s prior disciplinary matter as part of
a pattern of repeated offenses. Ultimately, the trial court
found ‘‘that throughout each of the [actions] that were
brought, the prosecutions, the appeals, [the] numerous
frivolous and baseless repetitive motions for disqualifi-
cation of both [opposing] counsel and [judges], the pat-
tern of accusations of wrongdoing, of misconduct, of
bias, of accusing others of harassing him, and of unethi-
cal conduct have prejudiced the administration of
justice.’’
After reviewing the record in the present case, we
conclude that ample evidence exists supporting the trial
court’s findings and conclusions. The record contains
countless motions, memoranda, and arguments made
by the defendant disparaging Judges Roche and
Danaher for no apparent reason beyond the fact that
those judges ruled in opposition to him. Not only did the
defendant call into question the impartiality of Judges
Roche and Danaher, but he also called into question
their competency as judges and questioned the integrity
of the Judicial Branch. See, e.g., Notopoulos v. State-
wide Grievance Committee, supra, 277 Conn. 236–37.
We conclude that the trial court’s factual findings and
conclusions are supported by clear and convincing evi-
dence and, therefore, we decline to disturb them on
appeal.
IV
We next address the defendant’s claim that the trial
court abused its discretion by suspending him from the
practice of law for four years. Specifically, the defen-
dant contends that the plaintiff presented no evidence
of his prior disciplinary history other than unsworn,
erroneous claims. The defendant also claims that the
plaintiff presented no evidence that his offenses were
frequent. Finally, the defendant claims that the trial
court ignored certain mitigating factors described in
standards promulgated by the American Bar Associa-
tion. In response, the plaintiff contends that the trial
court properly considered the standards in determining
the appropriate sanction for the defendant’s miscon-
duct. The plaintiff also contends that the defendant
himself testified about his prior misconduct, which the
trial court properly considered in determining the
appropriate sanction. Finally, the plaintiff argues that
the trial court acted well within the bounds of its discre-
tion in suspending the defendant from the practice of
law for four years. We agree with the plaintiff.
‘‘The trial court possesses inherent judicial power,
derived from judicial responsibility for the administra-
tion of justice, to exercise sound discretion to deter-
mine what sanction to impose in light of the entire
record before it. . . . It is well established that in sanc-
tioning an attorney for violations of the Rules of Profes-
sional Conduct, courts are, as they should be, left free
to act as may in each case seem best in this matter of
most important concern to them and to the administra-
tion of justice. . . . Whether this court would have
imposed a different sanction is not relevant. Rather,
we must determine whether the trial court abused its
discretion in determining the nature of the sanction.
. . . We may reverse the court’s decision [in sanc-
tioning an attorney] only if that decision was unreason-
able, unconscionable or arbitrary, and was made
without proper consideration of the facts and law per-
taining to the matter submitted.’’ (Citations omitted;
internal quotation marks omitted.) Statewide Griev-
ance Committee v. Egbarin, supra, 61 Conn. App.
459–60.
As this court has previously noted, the standards,
which were promulgated by the American Bar Associa-
tion, ‘‘provide that, after 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 mitigating factors.
. . . The [s]tandards list the following as aggravating
factors: (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) vulnera-
bility of victim; (i) substantial experience in the practice
of law; [and] (j) indifference to making restitution. . . .
The [s]tandards list the following as mitigating factors:
(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 restitu-
tion 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 disciplin-
ary proceedings; (j) interim rehabilitation; (k) imposi-
tion of other penalties or sanctions; (l) remorse; [and]
(m) remoteness of prior offenses.’’ (Internal quotation
marks omitted.) Burton v. Mottolese, supra, 267 Conn.
55–56; see also American Bar Association, Standards
for Imposing Lawyer Sanctions (1986) Standards 3.0,
9.22, and 9.32.
The memorandum of decision demonstrates that the
trial court considered the various standards, including
the relevant aggravating and mitigating factors, in arriv-
ing at its final determination of an appropriate sanction
for the defendant’s misconduct. In its decision, the trial
court determined that the defendant’s offenses were
aggravated by the following factors: (1) the nature and
repetition of the misconduct, as evidenced by the vari-
ous motions, memoranda, and oral arguments included
within the record; (2) the defendant’s self-interested
mental state; (3) the fact that the defendant’s actions
undermined the credibility of, and confidence in, the
judiciary; (4) the defendant’s lack of awareness regard-
ing the nature of his offenses; and (5) the defendant’s
prior disciplinary history. The court then considered
the length of the defendant’s career as a mitigating
factor. Given the great amount of discretion that we
afford to trial courts in the context of attorney grievance
proceedings, we conclude that the trial court did not
abuse its discretion by ordering that the defendant be
suspended from the practice of law for a period of
four years.
We note that the defendant’s brief raises numerous
additional arguments in passing. After having examined
these remaining claims carefully, we conclude that they
are without merit.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
Rule 3.1 of the Rules of Professional Conduct provides in relevant part:
‘‘A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law. . . .’’
Rule 8.2 (a) of the Rules of Professional Conduct provides in relevant
part: ‘‘A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge . . . .’’
Rule 8.4 of the Rules of Professional Conduct provides in relevant part:
‘‘It is professional misconduct for a lawyer to . . . (4) [e]ngage in conduct
that is prejudicial to the administration of justice . . . .’’
3
The defendant initially was appointed executor of the estate of the
decedent, who had been his friend. However, after the defendant filed a
complaint against members of the decedent’s family to recover certain life
insurance proceeds, those family members hired Attorney J. Michael Scony-
ers to represent them in the handling of the estate and ultimately removed
the defendant as executor of the decedent’s estate. We note that a more
detailed summary of facts regarding the defendant’s involvement with this
estate is set forth in Chief Disciplinary Counsel v. Rozbicki, 150 Conn.
App. 472, 475–77, 91 A.3d 932, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).
4
The record does not indicate the resolution of this motion.
5
For the sake of clarity, we note that all references to the trial court
hereinafter are to Judge Robaina unless otherwise specified.
6
Rule 2.15 of the Code of Judicial Conduct provides in relevant part: ‘‘(b)
A judge having knowledge that a lawyer has committed a violation of the
Rules of Professional Conduct 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 author-
ity. . . .
‘‘(d) A judge who receives information indicating a substantial likelihood
that a lawyer has committed a violation of the Rules of Professional Conduct
shall take appropriate action. . . .’’
7
The defendant also contends, without providing us the benefit of ade-
quate briefing, that the trial court lacked subject matter jurisdiction insofar
as the plaintiff lacked standing to bring a presentment complaint because
the reviewing committee did not first submit its proposed decision to the
Statewide Grievance Committee for final approval and, as such, no final
judgment was issued. ‘‘We cannot dispose of this issue via inadequate briefing
rules . . . because the issue of standing implicates subject matter jurisdic-
tion, and may be raised at any time, including by the court sua sponte.’’
(Citation omitted.) Horner v. Bagnell, 324 Conn. 695, 705 n.11, 154 A.3d
975 (2017).
In reviewing this claim, we note that the defendant previously and unsuc-
cessfully raised this exact issue in Chief Disciplinary Counsel v. Rozbicki,
supra, 150 Conn. App. 479–81. There, the Appellate Court determined that
the defendant’s claim was based on an interpretation of the applicable
statutes in a vacuum, without regard to certain amendments to our rules
of practice. Id., 480. Although we are not bound by decisions of the Appellate
Court, we are persuaded by its analysis on this issue. See Commission on
Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263,
271, 25 A.3d 632 (2011). Thus, the jurisdictional claim is controlled by the
Appellate Court’s reasoning, the correctness of which the defendant does
not challenge. Accordingly, we conclude that the defendant’s jurisdictional
claim is without merit.
8
It is not clear from the defendant’s briefing whether his due process
claim is predicated on the state or federal constitution. However, because
he ‘‘has not provided an independent analysis of this issue under State v.
Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), we deem abandoned
any state constitutional due process claim. . . . Accordingly, we analyze
the defendant’s due process claim under the federal constitution only.’’
(Citation omitted.) State v. Skok, 318 Conn. 699, 702 n.3, 122 A.3d 608 (2015).
9
The trial court’s memorandum of decision did not address or decide the
defendant’s due process claim regarding his lack of proper notice of the
charges against him. The defendant also did not raise this claim in his
memorandum of law in support of his motion for reargument. As such,
we conclude that the defendant failed to adequately preserve this claim
for appeal.
‘‘[T]o obtain review of an unpreserved claim pursuant to [Golding], a
defendant need only raise that claim in his main brief, wherein he must
present a record that is [adequate] for review and affirmatively [demonstrate]
that his claim is indeed a violation of a fundamental constitutional right.’’
(Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 754–55,
91 A.3d 862 (2014). As such, a party’s failure to request Golding review does
not preclude consideration of his constitutional claim, if that claim otherwise
was properly briefed, identified relevant constitutional authorities, and was
founded on an adequate record for review. Id., 755.
The defendant failed to seek review of his unpreserved claim under State
v. Golding, supra, 213 Conn. 239–40. Accordingly, we examine the defen-
dant’s brief to determine whether his claim nevertheless is reviewable under
Golding pursuant to State v. Elson, supra, 311 Conn. 754–55.
10
‘‘Res judicata, or claim preclusion, express[es] no more than the funda-
mental principle that once a matter has been fully and fairly litigated, and
finally decided, it comes to rest. . . . Generally, for res judicata to apply,
four elements must be met: (1) the judgment must have been rendered on
the merits by a court of competent jurisdiction; (2) the parties to the prior
and subsequent actions must be the same or in privity; (3) there must have
been an adequate opportunity to litigate the matter fully; and (4) the same
underlying claim must be at issue. . . . Res judicata bars the relitigation
of claims actually made in the prior action as well as any claims that might
have been made there.’’ (Citations omitted; internal quotation marks omit-
ted.) Wheeler v. Beachcroft, LLC, 320 Conn. 146, 156–57, 129 A.3d 677 (2016).
11
‘‘The common-law doctrine of collateral estoppel, or issue preclusion,
embodies a judicial policy in favor of judicial economy, the stability of
former judgments and finality. . . . Collateral estoppel, or issue preclusion,
is that aspect of res judicata which prohibits the relitigation of an issue
when that issue was actually litigated and necessarily determined in a prior
action between the same parties upon a different claim. . . . For an issue
to be subject to collateral estoppel, it must have been fully and fairly litigated
in the first action. It also must have been actually decided and the decision
must have been necessary to the judgment.’’ (Internal quotation marks omit-
ted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300
Conn. 325, 343–44, 15 A.3d 601 (2011).