Cohen v. Statewide Grievance Committee , 189 Conn. App. 643 ( 2019 )

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DEBRA COHEN v. STATEWIDE
GRIEVANCE COMMITTEE
(AC 40887)
Alvord, Sheldon and Bear, Js.
Syllabus
The plaintiff attorney appealed to the trial court from the decision of the
reviewing committee of the defendant, the Statewide Grievance Commit-
tee, reprimanding the plaintiff and imposing sanctions on her for vio-
lating rules 3.3 (a) (1) and 8.4 (3) of the Rules of Professional Conduct.
The plaintiff had been hired as a staff attorney for the Office of the
Probate Court Administrator, while at the same time serving as a court-
appointed trustee for the sole beneficiary of an estate. After filing a
motion to resign as the fiduciary of the estate, a hearing was held before
the Probate Court, which ordered, inter alia, that the plaintiff file a final
accounting upon the resolution of any interest and penalties due in
connection with state and federal tax filings. Subsequently, the plaintiff
filed several final accountings with the Probate Court, some of which
included fiduciary fees during the time period when she was employed
by the Office of the Probate Court Administrator. Thereafter, the plaintiff
filed a final accounting without fiduciary fees, which was accepted
by the Probate Court. Subsequently, chief disciplinary counsel filed a
grievance complaint against the plaintiff. The reviewing committee for
the defendant found, by clear and convincing evidence, that the plaintiff
violated rule 3.3 (a) (1) of the Rules of Professional Conduct by making
a knowingly false statement in her final accounting to the Probate Court
regarding fiduciary fees, as well as rule 8.4 (3) of the Rules of Professional
Conduct by making a dishonest statement to the Probate Court in her
final accounting regarding fiduciary fees owed. Thereafter, the defendant
affirmed the decision of the reviewing committee, and the plaintiff
appealed to the trial court, which dismissed the plaintiff’s appeal. On
the plaintiff’s appeal to this court, held:
1. This court declined to review the plaintiff’s claims that the disciplinary
counsel violated her due process rights by refusing to conduct an investi-
gation into the allegations of misconduct against her, and by failing to
produce any witnesses other than the plaintiff at her hearing before the
reviewing committee; the plaintiff raised those claims for the first time
on appeal, she provided no analysis or citation to case law as to why
the failure to investigate deprived her of her constitutional rights, or as
to why disciplinary counsel’s reliance on the plaintiff’s testimony and
documents submitted in support of the additional allegations of miscon-
duct could not constitute clear and convincing evidence that the plain-
tiff’s conduct violated rules 3.3 (a) (1) and 8.4 (3) of the Rules of
Professional Conduct, and even if the plaintiff did set forth a constitu-
tional claim, her claims failed under State v. Golding (213 Conn. 233)
because she did not demonstrate that a constitutional violation existed.
2. The plaintiff’s claim that the trial court improperly inferred an attorney-
client relationship between the plaintiff and the Probate Court was moot;
the reviewing committee’s finding that an attorney-client relationship
existed between the plaintiff and the Probate Court was made in the
context of its discussion of rule 1.7 (a) (2) of the Rules of Professional
Conduct, and because the reviewing committee did not find that the
plaintiff violated that rule, the claim was moot.
3. The trial court properly applied rule 3.3 of the Rules of Professional
Conduct to the plaintiff attorney functioning in a fiduciary role: although
the plaintiff cited the commentary of the Rules of Professional Conduct
to support her contention that rule 3.3 does not apply to attorneys
functioning in a fiduciary role, the text of the rule, which does not
contain language limiting its application to attorneys acting in the course
of an attorney-client relationship, was authoritative, and this court would
not import language into the rule to restrict its application to attorney-
clients relationships as proposed by the plaintiff; accordingly, the trial
court did not improperly expand the scope of the rule by applying it to
statements made by an attorney functioning in a fiduciary role.
4. The trial court properly upheld the reviewing committee’s determination
that an entry in the amended final account filed by the plaintiff consti-
tuted a knowingly false statement to the Probate Court in violation of
rule 3.3 (a) (1) of the Rules of Professional Conduct and was dishonest
in violation of rule 8.4 (3) of the Rules of Professional Conduct; the
findings of the reviewing committee, as affirmed by the defendant and
the Superior Court, were supported by clear and convincing evidence
that the plaintiff violated rules 3.3 (a) (1) and 8.4 (3), and were legally
and logically correct and not clearly erroneous.
Argued February 6—officially released May 7, 2019
Procedural History
Appeal from the reprimand issued by the defendant’s
reviewing committee for the plaintiff’s alleged violation
of the Rules of Professional Conduct, brought to the
Superior Court in the judicial district of Hartford and
tried to the court, Robaina, J.; judgment dismissing
the appeal, from which the plaintiff appealed to this
court. Affirmed.
Debra Cohen, self-represented, the appellant
(plaintiff).
Brian B. Staines, chief disciplinary counsel, for the
appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Debra Cohen, an attorney,
appeals from the judgment of the trial court dismissing
her appeal from the reprimand imposed by the defen-
dant, the Statewide Grievance Committee, for her viola-
tion of rules 3.3 (a) (1) and 8.4 (3) of the Rules of
Professional Conduct.1 On appeal, the plaintiff claims
that (1) disciplinary counsel violated her due process
rights by refusing to conduct an investigation into the
allegations of misconduct against her, (2) disciplinary
counsel violated her due process rights by failing to
produce any witnesses other than the plaintiff at her
hearing before the reviewing committee, (3) the court
improperly inferred the existence of an attorney-client
relationship between the plaintiff and the Probate
Court, (4) the court improperly expanded the applica-
tion of rule 3.3 to an attorney functioning in a fiduciary
role, and (5) the court improperly upheld the reviewing
committee’s determination that an entry in the amended
final account filed by the plaintiff on June 24, 2013,
constituted a knowingly false statement to the Probate
Court in violation of rule 3.3 (a) (1) and was dishonest
in violation of rule 8.4 (3). We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s claims. The plain-
tiff was hired as a staff attorney for the Office of the
Probate Court Administrator on November 14, 2005.
As an employee, her duties included court visits and
assessments of the probate courts, including audits of
random files, to determine whether the required
accountings were timely filed and in compliance with
applicable law and procedures. The plaintiff also pro-
vided support and legal advice to the Probate Court
judges and their staff regarding probate matters and
required filings.
At the time the plaintiff was hired by the Office of the
Probate Court Administrator in 2005, she was serving
as a court-appointed trustee for the sole beneficiary of
the estate of John DeRosa in the North Central Probate
Court (Probate Court).2 On April 25, 2012, the plaintiff
filed a proposed periodic accounting and an affidavit
of fees in the DeRosa matter. On May 1, 2012, the chief
clerk of the Probate Court sent an e-mail to Attorney
Thomas E. Gaffey, chief counsel for the Office of the
Probate Court Administrator, inquiring whether an
employee of his office was precluded from serving as
a fiduciary for an estate or a trust. Attorney Gaffey
responded that there was no specific policy or regula-
tion prohibiting employees from serving in a fiduciary
capacity.3 On May 18, 2012, the plaintiff filed a motion
to resign as the fiduciary in the DeRosa estate with the
Probate Court. Following a hearing before the Probate
Court on May 23, 2012, the Probate Court judge, Timo-
thy R.E. Keeney, issued an order requiring, inter alia,
the filing of a final account4 upon the resolution of any
interest and penalties due in connection with state and
federal tax filings. Judge Keeney further noted that he
would consider the plaintiff’s motion to resign at the
time that the final account was filed.
On April 15, 2013, the plaintiff retained Attorney Tim-
othy Daley to represent her in the Probate Court pro-
ceedings. By letter dated April 15, 2013, Attorney Daley
submitted a proposed final accounting for the DeRosa
matter, which included proposed fiduciary fees for the
plaintiff’s services. Additionally, Attorney Daley noted
the fact that the plaintiff had mistakenly failed to file
income tax returns for the trust, which caused the trust
to incur tax penalties in the amount of $5531.84. He
stated that the plaintiff acknowledged that she had
failed to file the returns on behalf of the trust in a timely
manner, but that ‘‘the [f]iduciary has credit[ed] and paid
back the penalties incurred by the [t]rust as set forth
in the [d]ebit section of the [f]inal [a]ccounting.’’
A hearing on the final account was held before the
Probate Court on May 15, 2013. At that hearing, the
plaintiff filed an amended final account that showed a
reimbursement to the estate of $5531.84 for the income
tax interest and penalties, and a request for fiduciary
fees in the amount of $5980 for the period of January 1,
2012, to April 22, 2013. Following the hearing, Attorney
Gaffey instructed the plaintiff that she was not to
request or charge fiduciary fees in any Probate Court
matter for the time period that she had been employed
by the Office of Probate Court Administrator.5 Accord-
ingly, on May 24, 2013, the plaintiff e-mailed the follow-
ing message to the chief clerk of the Probate Court: ‘‘I
am informing the Probate Court that I intend to file an
amendment to the final account. I ask . . . the Court
not to make a ruling on the account until the amendment
is received. The amendment will make no entry for the
payment of fees for the fiduciary and will set aside a
reserve for the payment of state and federal income
taxes and the cost for preparing the final income tax
returns. . . .’’
On June 1, 2013, the plaintiff filed an amended final
account for the period of January 1, 2012, to May 31,
2013. The June 1, 2013 amended final account decreased
the fiduciary’s contribution to reimburse the estate for
income tax interest and penalties to $4283.74, and
explained the reduction in footnotes 1 and 2 of the
accounting. The plaintiff noted that the Connecticut
Department of Revenue Services had ‘‘granted amnesty
to [the] [e]state for the 2000–2007 tax years [and] the
value of the tax pardoned . . . is $1248.10.’’ As repre-
sented in her May 24, 2013 e-mail to the Probate Court,
the plaintiff did not include an entry for fiduciary fees
in the June 1, 2013 amended final account.
By letter dated June 5, 2013, Judge Keeney returned
the plaintiff’s June 1, 2013 amended final account. He
explained in a letter that there were ‘‘several outstand-
ing concerns,’’ the primary concern being the reduction
of the fiduciary’s credit to the estate from $5531.84 to
$4283.74. Judge Keeney stated: ‘‘From what has been
submitted, it appears that the [Connecticut Department
of Revenue Services] action is a reduction of tax obliga-
tion. Why does the accounting ask for the interest and
penalties to be reduced by $1248.10 for the [s]tate for
tax years 2000–2007 if there was no tax due for these
years?’’ In a separate paragraph, Judge Keeney ‘‘duly
noted’’ that the fiduciary fees totaling $5980 ‘‘have now
been waived.’’ Because the plaintiff claims that the
court’s letter was not clear and that she was confused
as to the reason for the return of the June 1, 2013
amended final account, the entire contents of Judge
Keeney’s June 5, 2013 letter to the plaintiff is repro-
duced in footnote 6 of this opinion.6 On the same day,
June 5, 2013, Judge Keeney ordered and decreed: ‘‘Said
accountings cannot be approved as submitted. It is,
therefore, ORDERED that this hearing be adjourned
until further order of the Court, AND that the fiduciary
file an amended account forthwith correcting the
errors and/or deficiencies.’’ (Emphasis in original.)
On June 24, 2013, the plaintiff filed an amended final
account for the period of January 1, 2012, to June 24,
2013. This latest accounting reflected a contribution by
the fiduciary to the estate in the amount of $5531.84
for the income tax interest and penalties. The June 24,
2013 amended final account also included, however, an
entry for fiduciary fees in a corresponding amount of
$5531.84.7 On July 19, 2013, the chief clerk of the Probate
Court sent an e-mail to the plaintiff advising her that
the court had not yet set a hearing on the June 24, 2013
amended final account because ‘‘the Judge still has
some questions/concerns.’’ Thereafter, the plaintiff
revised the accounting to remove the entry for fiduciary
fees, and the Probate Court approved the estate’s final
account on September 5, 2013.
On October 31, 2013, the Office of the Probate Court
Administrator placed the plaintiff on administrative
leave without pay pending a disciplinary hearing before
a three judge board to determine whether the recom-
mendation of the Probate Court Administrator to termi-
nate the plaintiff’s employment should be adopted.
Following a hearing, the board issued its ruling on Octo-
ber 6, 2014, in which it found by clear and convincing
evidence that the plaintiff’s actions warranted serious
discipline, and the board agreed that the plaintiff’s ter-
mination from employment was an appropriate
sanction.
On January 2, 2015, Patricia A. King, who was chief
disciplinary counsel at the time, filed a grievance com-
plaint against the plaintiff with the defendant. The com-
plaint was referred to a grievance panel for the Hartford
and New Britain judicial districts, which found probable
cause that the plaintiff had violated rule 1.7 (a) (2)
of the Rules of Professional Conduct.8 A hearing was
scheduled before a three person reviewing committee
on July 9, 2015. On June 25, 2015, the Office of Disciplin-
ary Counsel filed ‘‘Additional Allegations of Miscon-
duct’’9 pursuant to Practice Book § 2-35 (d).10 The
additional allegations all were directed to the plaintiff’s
conduct in the DeRosa matter. Disciplinary counsel
alleged that the plaintiff had ‘‘committed professional
misconduct in violation of [r]ules 3.3 and 8.4 (3) [of the
Rules of Professional Conduct] by her refusal to adhere
to Probate Court requests and orders in the [DeRosa]
case,’’ and attached seventeen documents in support
of the additional allegations.
Practice Book § 2-35 (f) provides that a respondent
to a grievance complaint is ‘‘entitled to a period of not
less than thirty days before being required to appear
at a hearing to defend against any additional charges of
misconduct.’’ Accordingly, the plaintiff’s hearing before
the reviewing committee was continued from July 9,
2015, to September 10, 2015. The reviewing committee
conducted the hearing on September 10, 2015, and
issued its decision on November 13, 2015.
In its decision, the reviewing committee found the
following facts by clear and convincing evidence: (1)
On May 23, 2012, Judge Keeney ordered the plaintiff to
file a final accounting in the DeRosa matter upon the
resolution of the interest and penalties owed in connec-
tion with the federal and state tax filings; (2) at a hearing
before the Probate Court on March 7, 2013, ‘‘it was
agreed that the [plaintiff] would reimburse the estate
for the interest and penalties assessed due to the [plain-
tiff’s] failure to file state and federal income taxes for
the years 2000 to 2010’’; (3) Attorney Daley, on behalf
of the plaintiff, filed a final account on April 15, 2013,
requesting approval of the plaintiff’s fiduciary fees and,
in an accompanying letter, acknowledged that the plain-
tiff’s failure to timely file tax returns caused the estate
to incur interest and penalties in the amount of $5531.84;
(4) the April 15, 2013 final account filed by Attorney
Daley showed a $5531.84 reimbursement to the estate
by the plaintiff; (5) at a hearing held before the Probate
Court on May 15, 2013, the plaintiff filed an amended
final account, showing a reimbursement to the estate
in the amount of $5531.84 for the interest and penalties
due to the late tax filings and a charge to the estate in
the amount of $5980 for fiduciary fees; (6) following
the hearing on May 15, 2013, Attorney Gaffey directed
the plaintiff not to request or charge any fiduciary fees
for the time that she was employed by the Office of
Probate Court Administrator; (7) on May 24, 2013, the
plaintiff sent an e-mail to the chief clerk of the Probate
Court stating that she would be filing an amended final
accounting that would not request any fiduciary fees;
(8) on June 1, 2013, the plaintiff filed an amended final
account that reduced the plaintiff’s contribution to the
estate for income tax interest and penalties to $4283.74;
(9) as represented in her May 24, 2013 e-mail to the
Probate Court, the June 1, 2013 amended final account
did not claim any fiduciary fees; (10) Judge Keeney
returned the June 1, 2013 amended final account to the
plaintiff by letter dated June 5, 2013, instructing her to
amend the accounting to reflect a $5531.84 contribution
by her to the estate for the income tax interest and
penalties; (11) in Judge Keeney’s June 5, 2013 letter
to the plaintiff, he noted that the plaintiff had waived
fiduciary fees in the June 1, 2013 amended final account;
(12) on June 24, 2013, the plaintiff filed an amended
final account that reflected a contribution of $5531.84
by her to the estate as directed by the court, but which
included claimed fiduciary fees in a corresponding
amount of $5531.84; (13) on July 19, 2013, the chief
clerk of the Probate Court advised the plaintiff that the
June 24, 2013 accounting had not been scheduled for
a hearing because the judge had some questions and
concerns; (14) the plaintiff thereafter revised the final
accounting to remove the claim for fiduciary fees, which
the Probate Court approved on September 5, 2013; and
(15) on October 6, 2014, the plaintiff was terminated
from her position as staff attorney with the Office of
Probate Court Administrator following a disciplinary
hearing before a three judge board.
The reviewing committee further noted in its decision
that the plaintiff ‘‘maintained that she was confused and
made a mistake when she included a reimbursement
for fiduciary fees in the June 24, 2013 [a]mended [f]inal
[a]ccount. The [plaintiff] contended that all the account-
ings that she filed were proposed accountings subject
to Probate Court approval and, therefore, could not be
deemed misleading.’’
On the basis of the reviewing committee’s factual
findings, it found by clear and convincing evidence that
the plaintiff had ‘‘engaged in unethical conduct.’’ The
reviewing committee concluded: ‘‘It is clear to this
reviewing committee that the [plaintiff] was attempting
to off-set the amount she owed to the estate for the
income tax interest and penalties with her fiduciary
fees. The [plaintiff] maintained that the request for fidu-
ciary fees was a mistake. This reviewing committee
does not find the [plaintiff’s] statement credible, consid-
ering the fact that the amount of the fiduciary fees
requested equaled the amount of interest and penalties
owed to the estate by the [plaintiff]. Furthermore, the
[plaintiff] is an experienced Probate Court attorney who
clearly understood the directives of Judge Keeney. We
find the [plaintiff’s] actions were knowing, deliberate
and contrary to her representation to the court in her
May 24, 2013 e-mail and June 1, 2013 accounting.
Accordingly, we conclude that the [a]mended [f]inal
[a]ccount filed by the [plaintiff] on June 24, 2013, consti-
tuted a knowingly false statement to the Probate Court,
in violation of [r]ule 3.3 (a) (1) of the Rules of Profes-
sional Conduct and was dishonest, in violation of [r]ule
8.4 (3) of the Rules of Professional Conduct.’’11 After
concluding that the plaintiff had violated rules 3.3 (a)
(1) and 8.4 (3), the reviewing committee reprimanded
the plaintiff and imposed sanctions.
Upon the plaintiff’s request for review pursuant to
Practice Book § 2-35 (k),12 the defendant affirmed the
decision of the reviewing committee at a meeting held
on January 21, 2016. After addressing the plaintiff’s
arguments set forth in her request to review, the defen-
dant concluded that ‘‘the reviewing committee’s find-
ings that the [plaintiff] violated [r]ules 3.3 (a) (1) and
8.4 (3) of the Rules of Professional Conduct are sup-
ported by clear and convincing evidence and . . . the
[plaintiff’s] violation of these [r]ules warrants a repri-
mand and an order that the [plaintiff] attend a continu-
ing legal education course in legal ethics.’’
Pursuant to Practice Book § 2-38,13 the plaintiff filed
an appeal with the Superior Court. In its September
7, 2017 memorandum of decision, the court made the
following determination: ‘‘The court does not find the
decisions of the reviewing committee or the Statewide
Grievance Committee to be clearly erroneous. There is
ample support in the record to justify the findings of
the [reviewing] committee that the submission of the
accountings constituted a false statement to a tribunal.
The [reviewing] committee was within its power to
reject [the plaintiff’s] assertion that the filing of the
accountings was a mistake. Not coincidentally, the
same assertion was made and rejected . . . in the pro-
ceeding before the . . . three judge panel of Superior
Court judges. . . . The court also finds that the finding
of a violation of rule 8.4 [of the Rules of Professional
Conduct] is justified by the record, and is not clearly
erroneous.’’ (Internal quotation marks omitted.) The
court then reviewed the reprimand imposed and found
that ‘‘the reprimand falls within proper guidelines.’’
Accordingly, the court dismissed the plaintiff’s appeal.
From that judgment, the plaintiff now appeals to this
court.
Before considering the plaintiff’s claims, we first
address the standard of review applicable to grievance
appeals. ‘‘[T]he clearly erroneous standard . . . is the
preferable standard of review in attorney grievance
appeals. . . . The clearly erroneous standard of review
provides that [a] court’s determination is clearly errone-
ous only in cases in which the record contains no evi-
dence to support it, or in cases in which there is
evidence, but the reviewing court is left with the definite
and firm conviction that a mistake has been made. . . .
‘‘Additionally, because the applicable standard of
proof for determining whether an attorney has violated
the Rules of Professional Conduct is clear and convinc-
ing evidence . . . we must consider whether the [fact
finder’s] decision was based on clear and convincing
evidence. . . . [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.’’
(Citations omitted; internal quotation marks omitted.)
Chief Disciplinary Counsel v. Zelotes, 152 Conn. App.
380, 386, 98 A.3d 852, cert. denied, 314 Conn. 944, 102
A.3d 1116 (2014). ‘‘The burden is on the statewide griev-
ance committee to establish the occurrence of an ethics
violation by clear and convincing proof.’’ (Internal quo-
tation marks omitted.) Notopoulos v. Statewide Griev-
ance Committee, 277 Conn. 218, 226, 890 A.2d 509, cert.
denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39
(2006).
I
The plaintiff’s first claim is that disciplinary counsel
violated her due process rights by refusing to conduct
an investigation into the allegations of misconduct
against her. Specifically, the plaintiff claims that King,
the former chief disciplinary counsel, filed the griev-
ance complaint against her without conducting an
investigation because King enjoyed a ‘‘cordial relation-
ship’’ with the Probate Court Administrator and there-
fore decided to wait until the investigation by the Office
of Probate Court Administrator had been completed to
avoid duplication of efforts. The plaintiff argues that
by failing to speak to Judge Keeney, any Probate Court
staff member, or the interested parties, and by neglect-
ing to visit the Probate Court or to review that court’s
records, ‘‘[t]he only information in the disciplinary
counsel’s file is information cherry-picked and filtered
by the [c]omplainant and/or his designees.’’ Further,
the plaintiff claims that the additional allegations of
misconduct were ‘‘merely a repackaging of Attorney
King’s claim, previously dismissed by the local griev-
ance panel . . . .’’
This claim was not raised before the reviewing com-
mittee or in the plaintiff’s request to review the
reviewing committee’s decision filed with the defen-
dant. Further, the plaintiff failed to raise this claim in
her appeal to the Superior Court or in her brief filed
with the Superior Court in support of her appeal. At
the hearing held on July 11, 2017, before the Superior
Court, the plaintiff argued that the Office of Disciplinary
Counsel abused its discretion in filing additional allega-
tions of misconduct, but she did not argue that her
constitutional right to due process had been violated
by a lack of investigation into her alleged misconduct.
From this review of the record, it is clear that the
plaintiff is raising her constitutional claim for the first
time in this appeal.14 Moreover, the plaintiff’s main
appellate brief simply states that ‘‘[d]isciplinary coun-
sel’s decision not [to] investigate the allegations of mis-
conduct against [the] [p]laintiff violates due process
of law.’’ There is no analysis as to why the failure to
investigate deprived her of her constitutional rights.
There is no citation to case law that provides that the
failure to investigate under these circumstances, where
the plaintiff was provided an opportunity to respond
and defend herself at an evidentiary hearing, violates
a respondent’s due process rights. In her reply brief, the
plaintiff argues for the first time that her constitutional
claim is reviewable by this court pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
Under Golding, ‘‘a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis omitted; footnote omit-
ted.) Id., as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015). ‘‘Golding review is applicable
in civil as well as criminal cases.’’ Lohnes v. Hospital
of Saint Raphael, 132 Conn. App. 68, 79–80, 31 A.3d 810
(2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).
The plaintiff argues that the record is adequate for
this court’s review of this claim and that a due process
claim is a constitutional claim. Again, however, there
is no authority cited in her reply brief to support her
position that disciplinary counsel’s failure to ‘‘conduct
a fair and unbiased investigation into the allegations of
professional misconduct levied against [the] plaintiff’’
violated her due process rights when she had a full
evidentiary hearing before the reviewing committee and
its decision subsequently was reviewed by the defen-
dant and the Superior Court on appeal. Even if we
construe the plaintiff’s argument as setting forth a con-
stitutional claim, we conclude that it fails under Golding
because she has not demonstrated that a constitutional
violation exists.
II
The plaintiff’s next claim is that disciplinary counsel
violated her due process rights by failing to call the
complainant or any witness other than the plaintiff to
testify at the grievance hearing before the reviewing
committee. As with the plaintiff’s first claim, she is
raising this issue for the first time in this appeal. She
cites no authority to support the position that disciplin-
ary counsel’s reliance on the plaintiff’s testimony and
the documents submitted in support of the additional
allegations of misconduct could not constitute clear
and convincing evidence that the plaintiff’s conduct
was in violation of rules 3.3 (a) (1) and 8.4 (3) of the
Rules of Professional Conduct. Even if we construe
the plaintiff’s argument as setting forth a constitutional
claim, we conclude that it fails under Golding because
she has not demonstrated that a constitutional viola-
tion exists.
III
The plaintiff’s next claim is that the Superior Court
improperly inferred the existence of an attorney-client
relationship between the plaintiff and the Probate
Court. Specifically the plaintiff refers to a paragraph in
the decision of the reviewing committee, in its analysis
of whether the plaintiff was burdened by a conflict of
interest in violation of rule 1.7 (a) (2) of the Rules
of Professional Conduct, wherein it concluded that an
attorney-client relationship existed between the plain-
tiff and the Probate Court. This determination by the
reviewing committee, now challenged by the plaintiff,
was raised only in connection with rule 1.7. The
reviewing committee concluded, however, that the evi-
dence in the record did not support the allegation that
‘‘there was a significant risk that the [plaintiff’s] repre-
sentation of the [P]robate [C]ourt was materially limited
by her personal interest in receiving fees as a fiduciary.’’
Accordingly, the reviewing committee did not find a
violation of rule 1.7 (a) (2). There was no finding by
the reviewing committee that the plaintiff’s violation of
rules 3.3 (a) (1) and 8.4 (3) occurred in the context of
an attorney-client relationship between the plaintiff and
the Probate Court.
In her request for review of the decision of the
reviewing committee, the plaintiff raised this claim, and
the defendant responded as follows: ‘‘The [defendant]
concluded that the reviewing committee’s finding that
an [attorney-client] relationship existed between the
[plaintiff] and the Probate Court was made in connec-
tion with the reviewing committee’s determination that
the record did not support a finding that the [plaintiff’s]
representation of the Probate Court constituted a con-
flict of interest in violation of [r]ule 1.7 (a) (2) of the
Rules of Professional Conduct. Accordingly, the [defen-
dant] found that the [plaintiff’s] argument that this find-
ing was without a legal or factual basis is moot since
the reviewing committee did not find that the [plaintiff]
violated this [r]ule.’’ We agree with the defendant that
this claim of the plaintiff is moot given the reviewing
committee’s disposition with respect to the allegation
that the plaintiff violated rule 1.7 (a) (2).
IV
The plaintiff’s somewhat related claim is that an attor-
ney-client relationship is necessary in order to find a
violation of rule 3.3 (a) (1) of the Rules of Professional
Conduct, and that the court improperly expanded the
application of rule 3.3 to an attorney functioning in a
fiduciary role. The plaintiff raised this issue in her
request for review of the reviewing committee’s deci-
sion. The plaintiff referred to the commentary to rule
3.3, which provides in relevant part: ‘‘This [r]ule governs
the conduct of a lawyer who is representing a client in
the proceedings of a tribunal. . . .’’ Rule 3.3 (a) (1),
however, contains no such limitation.
In its decision affirming the decision of the reviewing
committee, the defendant addressed this claim as fol-
lows: ‘‘Contrary to the [plaintiff’s] argument, [r]ule 3.3
[of the Rules of Professional Conduct] is not limited to
false statements made by an attorney engaged in an
[attorney-client relationship]. Rule 3.3 falls under the set
of [r]ules entitled ‘Advocate’ and not under the [r]ules
entitled ‘Client-Lawyer Relationship.’ In addition, the
language of the [r]ule states that ‘[a] lawyer shall not
knowingly make a false statement of fact or law to a
tribunal . . . .’ The [c]ommentary further clarifies that
‘[t]he duties stated in subsections (a) and (b) apply to
all lawyers . . . .’ Rule 3.3 (a) (1) clearly applies to
lawyers appearing before a court in a fiduciary capacity.
There is no language in the [r]ule limiting its application
to only those attorneys representing a client.’’
The Superior Court agreed with the defendant’s con-
clusion regarding the applicability of rule 3.3 (a) (1)
of the Rules of Professional Conduct to the plaintiff’s
situation. The court concluded: ‘‘Further, the [defen-
dant] reviewed the argument that [r]ule 3.3 only applies
to attorneys engaged in an attorney-client relationship
and/or serving as advocates. [The plaintiff’s] argument
in this regard is unavailing. It fails to recognize that the
crux of the matter is that the reviewing committee found
her actions to be ‘not a mistake, but a knowingly false
statement and dishonest conduct.’ The limitation [the
plaintiff] would impose on the rule would lead to the
conclusion that an attorney could make a false state-
ment to a tribunal under certain circumstances. There
is no support in the [r]ule or in the commentary for
that position. Thus the argument was properly consid-
ered and rejected.’’
To resolve this claim of the plaintiff, we must con-
strue the language in rule 3.3 (a) (1) of the Rules of
Professional Conduct. ‘‘Given that the Rules of Profes-
sional Conduct appear in our Practice Book, and given
that [t]he interpretive construction of the rules of prac-
tice is to be governed by the same principles as those
regulating statutory interpretation; Wiseman v. Arm-
strong, 295 Conn. 94, 99, 989 A.2d 1027 (2010); we
employ our well established tools of statutory construc-
tion’’ to determine the meaning of the relevant language
in rule 3.3 (a) (1). (Internal quotation marks omitted.)
Helmedach v. Commissioner of Correction, 168 Conn.
App. 439, 459, 148 A.3d 1105 (2016), aff’d, 329 Conn.
726, 189 A.3d 1173 (2018). ‘‘The interpretation and appli-
cation of a statute, and thus a Practice Book provision,
involves a question of law over which our review is
plenary. . . .
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case . . . . When constru-
ing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case . . . . In seeking
to determine that meaning . . . [General Statutes] § 1-
2z directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . We recognize that terms in a statute
are to be assigned their ordinary meaning, unless con-
text dictates otherwise . . . .’’ (Citation omitted; foot-
note omitted; internal quotation marks omitted.)
Wiseman v. Armstrong, supra, 295 Conn. 99–100.
In accordance with § 1-2z, we turn to the relevant
language of the rule of practice at issue, rule 3.3 (a) of
the Rules of Professional Conduct, which provides in
relevant part that ‘‘[a] lawyer shall not knowingly . . .
(1) [m]ake a false statement of fact or law to a tribunal
. . . .’’ This section does not contain language limiting
its application to attorneys engaged in an attorney-client
relationship. In reviewing other rules of professional
conduct, we note, as just one example, that rule 4.1
explicitly states that ‘‘[i]n the course of representing a
client a lawyer shall not knowingly . . . (1) [m]ake a
false statement of material fact or law to a third person
. . . .’’ We will not import language into the rule to
restrict its application to attorney-client relationships
as proposed by the plaintiff. ‘‘Where the language of
the statute is unambiguous, we are confined to the
intention expressed in the actual words used and we
will not search out any further intention of the legisla-
ture not expressed in the statute.’’ (Internal quotation
marks omitted.) Cornelius v. Arnold, 168 Conn. App.
703, 717, 147 A.3d 729 (2016), cert. denied, 324 Conn.
908, 152 A.3d 1245 (2017).
Further, we note that rule 3.3 (a) (1) of the Rules of
Professional Conduct is in the section titled ‘‘Advocate.’’
The term ‘‘advocate’’ is not defined in the Rules of
Professional Conduct. ‘‘The rule [is] that terms in a
statute are to be assigned their ordinary meaning, unless
context dictates otherwise . . . .’’ (Internal quotation
marks omitted.) Jamison v. Commissioner of Correc-
tion, 167 Conn. App. 312, 323, 143 A.3d 1136, cert.
denied, 323 Conn. 934, 151 A.3d 383 (2016). We therefore
look to the common definition expressed in dictionar-
ies. Black’s Law Dictionary defines an ‘‘advocate’’ as
‘‘[s]omeone who assists, defends, pleads, or prosecutes
for another.’’ Black’s Law Dictionary (10th Ed. 2014).
In this case, the plaintiff was appointed by the Probate
Court as the trustee for the sole beneficiary of the
DeRosa estate. As the trustee, the plaintiff, in a fiduciary
capacity, held in trust the mortgage payments for the
benefit of the estate’s beneficiary. Given the language
of rule 3.3 (a) (1), and the lack of language limiting
its application to attorneys acting in the course of an
attorney-client relationship, we conclude that the rule
clearly and unambiguously applied to the statements
of the plaintiff, made in her capacity as a trustee, to
the Probate Court.
It is true, as indicated by the plaintiff, that the com-
mentary to the rule provides that ‘‘[t]his [r]ule governs
the conduct of a lawyer who is representing a client in
the proceedings of a tribunal.’’ Nevertheless, the pream-
ble to the rules provides that ‘‘[t]he [c]ommentaries are
intended as guides to interpretation, but the text of
each [r]ule is authoritative.’’ Case law is in accord. ‘‘We
do not place the same weight on commentaries as we
would place on expressed rules.’’ Henry v. Statewide
Grievance Committee, 111 Conn. App. 12, 20, 957 A.2d
547 (2008).
For these reasons, we conclude that rule 3.3 (a) (1)
of the Rules of Professional Conduct is not limited to
statements made in the course of attorney-client rela-
tionships, and that the court did not improperly expand
the scope of the rule by applying it to statements made
by an attorney functioning in a fiduciary role.
V
The plaintiff’s final claim is that the court improperly
upheld the reviewing committee’s determination that
an entry in the amended final account filed by the plain-
tiff on June 24, 2013, constituted a knowingly false
statement to the Probate Court in violation of rule 3.3
(a) (1) of the Rules of Professional Conduct and was
dishonest in violation of rule 8.4 (3) of the Rules of
Professional Conduct. Specifically, the plaintiff argues
that ‘‘[t]he entry of fiduciary fees on [the] [p]laintiff’s
June 24, 2013 proposed fiduciary account was not a
false statement or dishonest; it was a true and accurate
statement of services rendered at a modest hourly rate
of $100.’’ She claims that the fact that the entry may
have been ‘‘inconsistent’’ with her statement in the May
24, 2013 e-mail to the chief clerk of the Probate Court
and entries in other related fiduciary accounts filed
with the Probate Court does not make the June 24, 2013
entry a misstatement or dishonest. We disagree.
We note that the plaintiff is not claiming in this appeal,
as she did before the reviewing committee, the defen-
dant in her request for review, and the Superior Court,
that the entry for fiduciary fees in the June 24, 2013
amended final account was made by mistake or that
she had been confused as to the directives of Judge
Keeney. Such a claim would not have been availing
given the fact that the reviewing committee found her
statement that she had been mistaken to be not credible.
‘‘[T]he committee, as the fact finder, was free to weigh
the plaintiff’s evidence and to determine the credibility
of [the plaintiff’s] testimony.’’ Machado v. Statewide
Grievance Committee, 93 Conn. App. 832, 840, 890 A.2d
622 (2006). ‘‘[A]s a reviewing court, [w]e must defer to
the trier of fact’s assessment of the credibility of the
witnesses that is made on the basis of its firsthand
observation of their conduct, demeanor and attitude.
. . . The weight to be given the evidence and to the
credibility of witnesses is solely within the determina-
tion of the trier of fact.’’ (Internal quotation marks omit-
ted.) Daniels v. Statewide Grievance Committee, 72
Conn. App. 203, 209–10, 804 A.2d 1027 (2002).
Instead, the plaintiff takes the position that because
she performed services as the fiduciary of the trust
and charged reasonable fees for those services, her
inclusion of those fees in the June 24, 2013 accounting
cannot be deemed to be a misstatement or dishonest.
The plaintiff’s argument misses the point. It was not
disputed that the plaintiff rendered fiduciary services or
that the amount she proposed to charge was reasonable.
The plaintiff, in her May 24, 2013 e-mail to the chief clerk
of the Probate Court, and in various other accountings
submitted to the Probate Court, represented that she
would waive her fiduciary fees and remove the entry
for such fees from the amended final account. Her
actions were inconsistent with her representations. Fur-
ther, it was apparent that her entry of $5531.84 for
fiduciary fees and the credit by her to the estate for
income tax interest and penalties in the amount of
$5531.84, were fashioned to offset each other in the
June 24, 2013 amended final account. Prior to that filing,
she had either eliminated an entry for fiduciary fees or
requested the amount of $5980 for her services.
Accordingly, the findings of the reviewing committee,
as affirmed by the defendant and the Superior Court,
are supported by clear and convincing evidence, and
the conclusion that the plaintiff violated rules 3.3 (a)
(1) and 8.4 (3) of the Rules of Professional Conduct
by filing a knowingly false statement with the Probate
Court on June 24, 2013, is legally and logically correct
and not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rule 3.3 (a) of the Rules of Professional Conduct provides in relevant
part: ‘‘A lawyer shall not knowingly . . . (1) [m]ake a false statement of
fact or law to a tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by the lawyer . . . .’’
Rule 8.4 of the Rules of Professional Conduct provides in relevant part:
‘‘It is professional misconduct for a lawyer to . . . (3) Engage in conduct
involving dishonesty, fraud, deceit or misrepresentation . . . .’’
2
In the DeRosa estate, the heir, his daughter, could not be located. The
principal asset of the estate was a mortgage on which monthly payments
were made. The plaintiff had been appointed trustee for the trust created
for the purpose of receiving and holding these payments for the missing bene-
ficiary.
3
On January 1, 2015, the Office of the Probate Court Administrator adopted
a formal policy that prohibited its employees from serving as fiduciaries
in Connecticut probate courts unless an employee was serving without
compensation as a fiduciary on behalf of a spouse, child or parent.
4
The terms account and accounting, as used in ‘‘final account’’ and ‘‘final
accounting,’’ are used interchangeably by the parties and this court.
5
Although the exact date is in dispute, at some point in time, no later
than May 16, 2013, Attorney Gaffey instructed the plaintiff to divest herself
of all of her fiduciary roles in the probate courts. There is evidence in the
record that the plaintiff had served as a conservator and as a limited guardian
in various Probate Court matters.
6
The letter from Judge Keeney to the plaintiff dated June 5, 2013, provides:
‘‘Re: John DeRosa Trust
‘‘Dear Attorney Cohen:
‘‘The court has received your final account dated June 1, 2013. To save
time and expenses, this matter should be set for a streamlined hearing.
However, with your most recent submission, there are several outstanding
concerns that first must be addressed.
‘‘In the previous two final accounts submitted to the court dated May 15,
2013 and April 12, 2013, footnote [1] of each accounting states there was a
Connecticut Department of Revenue Services (CT DRS) tax abatement
granted for [the] 2000–2007 tax years equal to $1248.10. On the amended
final account dated June 1, 2013, footnote 2 states CT DRS granted amnesty
to [the] estate for 2000–2007 tax years and the amount pardoned is $1248.10.
Was the action taken by CT DRS a reduction of tax obligation for the
estate or was it a forgiveness of penalty and interest? From what has been
submitted, it appears that the CT DRS action is a reduction of tax obligation.
Why does the accounting ask for the interest and penalties to be reduced
by $1248.10 for the [s]tate for [the] tax years 2000–2007 if there was no tax
due for these years?
‘‘During the March 7, 2013 hearing on the [i]nterim [a]nnual [a]ccounting,
it was agreed that the fiduciary would make a contribution to the estate for
any penalties and interest due because of delinquent income tax payments.
In the previous two accountings filed it states that the amount paid to the
[s]tate of [Connecticut] for interest and penalties for 2008–2011 was $202.35,
but then a refund was received for $44.55. It also states the amount paid
for [f]ederal interest and penalties for 2000–2010 was $5950.66 and a refund
received for $576.62. It appears that the actual amount paid for interest and
penalties for both state and federal was $6153.01 and a refund of $621.17
which would make the end total for interest and penalties for both state
and federal to be $5531.84.
‘‘During the May 15, 2013 hearing, issues related to the [f]iduciary’s fees
were discussed. It is duly noted that the [f]iduciary fees per [e]xhibit A of
the January 1, 2012 to April 22, 2013 [a]mended [f]inal [a]ccount totaling
$5980 have now been waived in the [a]mended [f]inal [a]ccount of January
1, 2012 to May 31, 2013.
‘‘From all accounts and information supplied to the court to date it appears
that the contribution amount to the [e]state by the [f]iduciary should be
$5,531.84. It is for all of the above reasons that the [f]inal [a]ccount dated
June 1, 2013, is being returned for further clarification and accuracy.
‘‘Sincerely,
‘‘Timothy R.E. Keeney
‘‘Judge’’
7
We note that the April, 2013 final account and all of the subsequent
amended final accounts submitted by the plaintiff to the Probate Court
included the following representation: ‘‘The [r]epresentations contained
herein are made under the penalties of false statement . . . .’’
8
Rule 1.7 (a) of the Rules of Professional Conduct provides in relevant
part: ‘‘[A] lawyer shall not represent a client if the representation involves
a concurrent conflict of interest. A concurrent conflict of interest exists if
. . . (2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by a personal interest of the
lawyer. . . .’’
9
An ‘‘Amended Additional Allegations of Misconduct’’ was filed on June
29, 2015, to correct ‘‘a typo in paragraph 2.’’
10
Practice Book § 2-35 (d) provides in relevant part: ‘‘Disciplinary counsel
may add additional allegations of misconduct to the grievance panel’s deter-
mination that probable cause exists in the following circumstances: (1) Prior
to the hearing before the Statewide Grievance Committee or the reviewing
committee, disciplinary counsel may add additional allegations of miscon-
duct arising from the record of the grievance complaint or its investigation
of the complaint.. . .’’
11
The reviewing committee concluded that it was not proven by clear
and convincing evidence that the plaintiff engaged in a conflict of interest
in violation of rule 1.7 (a) (2) of the Rules of Professional Conduct.
12
Practice Book § 2-35 (k) provides in relevant part: ‘‘Within thirty days
of the issuance to the parties of the final decision by the reviewing committee,
the respondent may submit to the Statewide Grievance Committee a request
for review of the decision. . . .’’
13
Practice Book § 2-38 (a) provides in relevant part: ‘‘A respondent may
appeal to the Superior Court a decision by the Statewide Grievance Commit-
tee or a reviewing committee imposing sanctions or conditions against the
respondent . . . . A respondent may not appeal a decision by a reviewing
committee imposing sanctions or conditions against the respondent if the
respondent has not timely requested a review of the decision by the State-
wide Grievance Committee under Section 2-35 (k). . . .’’
14
‘‘Our Supreme Court has previously held that [a] party to an administra-
tive proceeding cannot be allowed to participate fully at hearings and then,
on appeal, raise claims that were not asserted before the board. We have
made it clear that we will not permit parties to anticipate a favorable decision,
reserving a right to impeach it or set it aside if it happens to be against
them, for a cause which was well known to them before or during the trial.
. . . Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632,
613 A.2d 739 (1992) . . . . Furthermore, [t]o allow a court to set aside an
agency’s determination upon a ground not theretofore presented . . .
deprives the [agency] of an opportunity to consider the matter, make its
ruling, and state the reasons for its action.’’ (Citation omitted; internal quota-
tion marks omitted.) Ogden v. Zoning Board of Appeals, 157 Conn. App.
656, 665, 117 A.3d 986, cert. denied, 319 Conn. 927, 125 A.3d 202 (2015).
‘‘Although the statewide grievance committee is not an administrative
agency . . . the court’s review of its conclusions is similar to the review
afforded to an administrative agency decision.’’ (Internal quotation marks
omitted.) Notopoulos v. Statewide Grievance Committee, supra, 277
Conn. 227.