Disciplinary Counsel v. Evans ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DISCIPLINARY COUNSEL v. JOHN J. EVANS
(AC 36575)
Sheldon, Mullins and Schaller, Js.
Argued March 10—officially released August 18, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Mintz, J.)
John J. Evans, self-represented, the appellant
(defendant).
Beth L. Baldwin, assistant disciplinary counsel, with
whom was Suzanne Sutton, first assistant disciplinary
counsel, for the appellee (plaintiff).
Opinion
MULLINS, J. In this presentment1 filed by the plaintiff,
disciplinary counsel, alleging misconduct by the defen-
dant, John J. Evans, a suspended attorney acting as a
self-represented party, the defendant appeals following
the judgment of the trial court denying his motion for
reinstatement to the practice of law. On appeal,2 the
defendant claims that the trial court improperly (1)
denied his motions to vacate an agreement that he had
entered into with disciplinary counsel to resolve the
presentment, (2) ordered, pursuant to the parties’
agreement, that he disclose unredacted documents for
an audit of his IOLTA account,3 (3) suspended him from
the practice of law, and (4) denied his motion for rein-
statement to the practice of law.4 We affirm the judg-
ment of the court.
The following facts are relevant to this appeal. Rita
Kruk, a former client of the defendant, initiated griev-
ance proceedings against him by filing a complaint on
March 17, 2009. She alleged that the defendant had
refused to disburse funds to her and to provide her
with a proper accounting of a recovery that he had
received on her behalf through his prior representation
of her.
After a finding of probable cause by a local grievance
panel, the reviewing committee of the Statewide Griev-
ance Committee held an evidentiary hearing and there-
after directed disciplinary counsel to file a presentment
against the defendant in the Superior Court. The pre-
sentment charged the defendant with violating, inter
alia, rule 1.15 (b) of the Rules of Professional Conduct,
by refusing to disburse funds to which Kruk was entitled
and by refusing to provide Kruk’s new counsel with a
proper accounting of the fees and expenses arising from
the prior representation.5
On September 20, 2011, the defendant filed an appli-
cation for inactive status with the court on the ground
that he was incapacitated from practicing law ‘‘by rea-
son of mental infirmity or illness.’’ Afterward, the par-
ties reached an understanding whereby the defendant
would go on inactive status for a period of approxi-
mately one month, enter a substance abuse program
and then be permitted to practice law under court super-
vision pursuant to conditions that would be set forth
at a hearing on his application for reinstatement. Thus,
pursuant to that understanding, on November 4, 2011,
the court ordered that the defendant go on inactive
status and appointed a trustee ‘‘to secure [the defen-
dant’s] client’s fund account and take the steps as are
necessary to protect the interest of [defendant’s] clients
and to secure the [defendant’s] IOLTA account.’’
On December 1, 2011, after completing a rehabilita-
tion program, the defendant filed a motion for ‘‘rein-
state[ment] . . . from inactive status under such
conditions as the court may impose.’’ On December 16,
2011, the parties executed an agreement for disposition
of the presentment (agreement)6 pursuant to which the
defendant acknowledged, inter alia, ‘‘that there [was]
sufficient evidence to prove by clear and convincing
evidence that he failed to provide [Kruk] a proper
accounting of his fees and expenses’’ in violation of
rule 1.15 (e) of the Rules of Professional Conduct.7 The
defendant also consented to the imposition of condi-
tions upon his return to the practice of law, including
‘‘submit[ting] his IOLTA account [records] for monthly
audit by the Statewide Grievance Committee, with the
first audit being for the month of December, 2011,’’
and ‘‘fully cooperat[ing] with the Statewide Grievance
Committee and . . . promptly answer[ing] all ques-
tions and provid[ing] all necessary documents.’’8
The agreement specified that the documents for
‘‘[t]he December, 2011 audit shall be submitted to the
Statewide Grievance Committee no later than February
1, 2012, and shall be due on the first of each month for
each subsequent monthly audit.’’ The agreement further
indicated that it ‘‘contemplate[d] the imposition of disci-
pline’’ to resolve the presentment, and provided that
‘‘whether [the defendant] is reprimanded or suspended,
depend[ed] on his compliance with the [agreement’s]
conditions . . . .’’ As it relates to the defendant’s non-
compliance, the agreement provided that ‘‘[i]f [the
defendant] fail[ed] to comply with one or more of the
conditions . . . the court shall order that [he] be sus-
pended from the practice of law for six months, and
[the defendant] must be reinstated by motion to the
court, subject to such conditions as the court might
impose at the time of reinstatement.’’
On the same day that the parties executed the
agreement, the court held a hearing at which disciplin-
ary counsel read the terms of the agreement into the
record. The court then canvassed the defendant con-
cerning the agreement. During the canvass, the defen-
dant acknowledged that he understood the agreement,
entered into the agreement voluntarily, found the
agreement to be fair and equitable, and was satisfied
with his legal representation.
Afterward, pursuant to the agreement, the court
ordered the defendant suspended for a period of six
months, the imposition of which was deferred for one
year, during which time the defendant would be permit-
ted to practice law pursuant to the agreement’s condi-
tions. In that order, the court confirmed that it would
dispose of the presentment by ‘‘impos[ing] a reprimand
for misconduct’’ if the defendant complied with the
agreement’s conditions, but ‘‘[i]f the [defendant] fail[ed]
to comply with one or more of the conditions . . . the
court shall order the [defendant] suspended from the
practice of law for six months, and [he] must be rein-
stated by motion to the court, subject to such conditions
as the court might impose at the time of reinstatement.’’
On January 31, 2012, the defendant moved to vacate
the agreement and the order enforcing its terms on the
ground that he had been ‘‘financially pressured into
entering into [the agreement].’’ On February 10, 2012,
disciplinary counsel filed a motion to suspend the defen-
dant from practicing law for six months on the ground
that he had failed ‘‘to provide his IOLTA account
[records] and the necessary documentation for the
period of December, 2011, for audit with the Statewide
Grievance Committee.’’
On March 16, 2012, the court held a hearing on both
motions. The court denied the defendant’s motion to
vacate and, in response to disciplinary counsel’s
motion, ordered that the defendant ‘‘submit his IOLTA
account [records] for the months of December, 2011,
and January, 2012, to the Statewide Grievance Commit-
tee.’’9 At the hearing, the defendant expressed concern
that providing documents pertaining to his IOLTA
account would require him to disclose confidential cli-
ent information. To address the defendant’s concern,
the court ordered that the defendant be ‘‘awarded pro-
tection under Practice Book § 2-27 (e)’’ and, accord-
ingly, that the Statewide Grievance Committee ‘‘not
. . . disclose any of [the defendant’s] client information
to anyone but the [o]ffice of the [c]hief [d]isciplinary
[c]ounsel and the [c]ourt for the purpose of the audit.’’10
Despite the protections afforded by the court’s March
16, 2012 orders, the defendant maintained that disclos-
ing the documents would reveal privileged information,
and he refused to provide his IOLTA account documents
for audit. In response, on April 25, 2012, the court
ordered that the defendant provide notice to his clients
of the terms of the March 16, 2012 orders to give them
an opportunity to object. In response to that order, the
defendant filed affidavits from several clients in which
they averred that they did not consent to the disclosure
of the documents. To address the concerns expressed
in those affidavits, the court ordered in June, 2012, that,
prior to the audit, the defendant submit unredacted
copies of the documents to the court, Hon. Frank H.
D’Andrea, Jr., judge trial referee, for an in camera
review, the ‘‘sole purpose of [which was] to . . . match
up the unredacted client names so they can be redacted
appropriately and submitted to the Statewide Grievance
Committee to perform an audit on [the defendant].’’ At
that time, the defendant offered no objection to the use
of that procedure.
On August 16, 2012, the defendant filed a second
motion to vacate the agreement. In this motion, the
defendant argued that the agreement was nullified by
mutual mistake and violated Practice Book § 2-60,
which he claimed mandated his reinstatement after he
successfully completed the treatment program. The
court denied that motion.
On November 16, 2012, disciplinary counsel filed a
motion ‘‘to extend the period of probation and condi-
tions’’ because it still had ‘‘not received the documents
from the court to perform the audit.’’ During a hearing
on this motion, disciplinary counsel informed the court
that the defendant personally had redacted the docu-
ments before submitting them to the court, despite the
court’s previous order that they be submitted for an in
camera review. According to disciplinary counsel, the
defendant’s redactions made an audit impossible
because the defendant had ‘‘left absolutely no informa-
tion on the documents in order for an audit to be per-
formed.’’
On December 11, 2012, the court issued an order that
provided as follows: ‘‘[The defendant] is ordered to
provide the Statewide Grievance Committee with unre-
dacted copies of all documents previously provided for
the audit on or before December 20, 2012. The only
parts of the documents to remain redacted are the client
names. Anywhere a client’s name appears it may be
redacted and replaced with John Doe or Jane Doe as
reviewed and approved by Judge D’Andrea. All payees,
amounts, dates, and check numbers are not to be
redacted.’’ The defendant refused to provide unre-
dacted documents for audit.11 As a result, on January 11,
2013, the court ordered that the defendant be suspended
from the practice of law for a period of six months.
On January 30, 2013, the defendant filed an appeal
with this court in which he challenged the imposition
of his suspension, the denial of his motion to vacate the
agreement, and the order that the defendant disclose
his IOLTA account information. The defendant failed,
however, to provide a preliminary statement of the
issues for appeal, as required by Practice Book § 63-4
(a) (1). As a result, on March 1, 2013, this court issued
a nisi order in which the defendant was provided until
March 11, 2013, to file a preliminary statement of issues
or his appeal would be dismissed.12 The defendant failed
to file a preliminary statement of issues by that date.
Accordingly, this court dismissed that appeal on March
12, 2013. Afterward, on April 4, 2013, the defendant
tardily moved to open and vacate the dismissal of that
appeal.13 We declined to vacate the dismissal.
Approximately six months later, in the trial court, by
a motion dated November 26, 2013, the defendant
moved for reinstatement to the practice of law on the
ground that the six month period of suspension had
ended. On January 28, 2014, the court denied that
motion on the basis that it would ‘‘not entertain a motion
for reinstatement until an audit [was] performed pursu-
ant to [the] prior order dated March 16, 2012 . . . for
the period of November 4, 2011, to the date of suspen-
sion January 11, 2013.’’ This appeal followed.
Before we address the defendant’s specific claims on
appeal, we set forth the overarching principles articulat-
ing the relationship between the Superior Court and
members of the bar. ‘‘The Superior Court possesses
inherent authority to regulate attorney conduct and to
discipline the members of the bar. . . . The judiciary
has the power to admit attorneys to practice and to
disbar them . . . to fix the qualifications of those to
be admitted . . . and to define what constitutes the
practice of law.’’ (Citations omitted; internal quotation
marks omitted.) Massameno v. Statewide Grievance
Committee, 234 Conn. 539, 553–54, 663 A.2d 317 (1995).
‘‘Attorney disciplinary proceedings are for the purpose
of preserving the courts of justice from the official
ministration of persons unfit to practi[c]e in them.’’
Statewide Grievance Committee v. Spirer, 247 Conn.
762, 771–72, 725 A.2d 948 (1999).
‘‘An attorney as an officer of the court in the adminis-
tration of justice, is continually accountable to it for
the manner in which he exercises the privilege which
has been accorded him. His admission is upon the
implied condition that his continued enjoyment of the
right conferred is dependent upon his remaining a fit
and safe person to exercise it, so that when he, by
misconduct in any capacity, discloses that he has
become or is an unfit or unsafe person to be entrusted
with the responsibilities and obligations of an attorney,
his right to continue in the enjoyment of his professional
privilege may and ought to be declared forfeited. . . .
Therefore, [i]f a court disciplines an attorney, it does
so not to mete out punishment to an offender, but [so]
that the administration of justice may be safeguarded
and the courts and the public protected from the mis-
conduct or unfitness of those who are licensed to per-
form the important functions of the legal profession.’’
(Citation omitted; internal quotation marks omitted.)
Massameno v. Statewide Grievance Committee, supra,
234 Conn. 554–55.
‘‘The proceeding to disbar [or suspend] an attorney
is neither a civil action nor a criminal proceeding, but
is a proceeding sui generis, the object of which is not
the punishment of the offender, but the protection of
the court. . . . Once the complaint is made, the court
controls the situation and procedure, in its discretion,
as the interests of justice may seem to it to require.
. . . [T]he power of the courts is left unfettered to act
as situations, as they may arise, may seem to require,
for efficient discipline of misconduct and the purging
of the bar from the taint of unfit membership. Such
statutes as ours are not restrictive of the inherent pow-
ers which reside in courts to inquire into the conduct
of their own officers, and to discipline them for miscon-
duct. . . . In proceedings such as those at issue, there-
fore, the attorney’s relations to the tribunal and the
character and purpose of the inquiry are such that
unless it clearly appears that his rights have in some
substantial way been denied him, the action of the court
will not be set aside upon review.’’ (Citations omitted;
internal quotation marks omitted.) Statewide Griev-
ance Committee v. Rozbicki, 211 Conn. 232, 238–39,
558 A.2d 986 (1989).
‘‘[T]he clearly erroneous standard . . . is the prefer-
able standard of review in attorney grievance appeals.
. . . The clearly erroneous standard of review provides
that [a] court’s determination is clearly erroneous only
in cases in which the record contains no evidence 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.’’ (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).
I
ISSUES SUBJECT OF PREVIOUS APPEAL
At the outset, many of the defendant’s claims are
reprises of claims that he could have and should have
brought in his prior appeal of the court’s January 11,
2013 judgment. Specifically, the defendant claims that
the trial court improperly denied his motions to vacate
the agreement, ordered him to disclose unredacted doc-
uments for an audit of his IOLTA account, and sus-
pended him from the practice of law. Because the
defendant has waived those claims by failing to pursue
them in a prior appeal, we decline to review them in
this appeal.
As we previously noted, on January 11, 2013, the
court ordered the defendant suspended for a period of
six months. On January 30, 2013, the defendant timely
appealed his suspension to this court, but failed to file
a preliminary statement of issues.14 On March 1, 2013,
this court issued a nisi order informing the defendant
that his appeal would be dismissed unless he filed a
preliminary statement of issues on or before March 11,
2013. The defendant failed to file a preliminary state-
ment of the issues by that date and, accordingly, we
dismissed that appeal.
‘‘It is well established that when a party brings a
subsequent appeal, it cannot raise questions which were
or could have been answered in its former appeals.
. . . Failure to raise an issue in an initial appeal to this
court constitutes a waiver of the right to bring the
claim.’’ (Citation omitted.) Detar v. Coast Venture
XXVX, Inc., 91 Conn. App. 263, 266, 880 A.2d 180 (2005);
see also Fernandes v. Rodriguez, 90 Conn. App. 601,
612–14, 879 A.2d 897 (refusing to consider merits of
claim pertaining to denial of motion to vacate where
appellant previously unsuccessfully attempted to file
late appeal of denial from same motion), cert. denied,
275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547
U.S. 1027, 126 S. Ct. 1585, 164 L. Ed. 2d 312 (2006). ‘‘It
is axiomatic, however, that this principle applies only
when the issue that a party seeks to raise in a subse-
quent appeal was one that the party actually litigated
prior to the initial appeal such that the issue could
have been raised in the initial appeal.’’ (Emphasis in
original.) American Diamond Exchange, Inc. v. Alpert,
302 Conn. 494, 508, 28 A.3d 976 (2011).
Here, in the hearings before the trial court, the defen-
dant actually litigated the issues he now seeks to raise
in this appeal, namely, the issues regarding the imposi-
tion of his suspension, the denial of his motion to vacate
his agreement with disciplinary counsel, and the court’s
order to disclose his clients’ IOLTA account informa-
tion. He filed a timely appeal regarding those issues on
January 30, 2013, and, therefore, could have and should
have raised those issues in that appeal. He did not.
Rather, he failed to comply with the court’s nisi order
and that appeal was dismissed. Thus, by failing to pur-
sue the January 30, 2013 appeal, in which he could have
pursued the claims he is now raising in this appeal,
the defendant has waived those claims. Having waived
those claims, the defendant cannot obtain review of
those claims simply by filing this appeal from a subse-
quent judgment and raising the same exact claims he
had an opportunity to raise in a prior appeal.15 Conse-
quently, we do not consider the merits of the claims
pertaining to the validity of the agreement, the orders
requiring that the defendant disclose documents for
audit, and his suspension from the practice of law.
II
MOTION FOR REINSTATEMENT
The defendant claims that the court improperly
denied his motion for reinstatement because (1) the
denial of the motion ‘‘required [him] to disclose pro-
tected information’’ and (2) ‘‘when the court denied the
motion to reinstate, the defendant had already been
under suspension for more than one year . . . .’’ We
are not persuaded.
A
The defendant claims that the court’s denial of his
motion for reinstatement improperly ‘‘required [that he]
disclose protected [client] information.’’ The defendant
argues that providing unredacted documents for audit
‘‘could lead to the discovery of confidential informa-
tion.’’ According to the defendant, his ‘‘clients have
simply refused to consent to disclosure of their informa-
tion’’ and he ‘‘did not have the right to agree to disclose
[the documents] . . . without client consent.’’ Because
the defendant already waived any challenge to the
orders requiring disclosure of documents for an audit;
see part I of this opinion; we refuse to entertain the
merits of his contention regarding whether the disclo-
sure of those documents would violate any attorney-
client privilege. Upon review of the merits of the court’s
denial of the defendant’s motion for reinstatement,
however, we conclude that the court did not err in
making reinstatement contingent on an audit of certain
client records.
The commentary to rule 1.15 of the Rules of Profes-
sional Conduct provides that ‘‘[a] lawyer should hold
property of others with the care required of a profes-
sional fiduciary.’’ Subsection (b) of rule 1.15 requires
a lawyer to keep ‘‘[c]omplete records of such account
funds . . . .’’ Practice Book § 2-27 (c) complements
that rule by requiring that the records of a client trust
account be available for audit by the Statewide Griev-
ance Committee or disciplinary counsel ‘‘[u]pon the
filing of a grievance complaint or a finding of probable
cause . . . .’’
In this case, a grievance complaint was filed against
the defendant, and a local grievance panel found proba-
ble cause that the defendant had violated rule 1.15 (e)
of the Rules of Professional Conduct. Additionally, in
the agreement, the defendant admitted that there was
sufficient evidence to prove that he had violated rule
1.15 (e) of the Rules of Professional Conduct, and he
agreed to provide the documents necessary for an
IOLTA account audit. Consequently, our rules of prac-
tice and the parties’ agreement provided ample author-
ity for the court to order that the defendant comply
with an IOLTA account audit prior to his reinstatement.
Indeed, the court premised its denial of the defendant’s
motion for reinstatement on the fact that the defendant
continually had disobeyed its December 16, 2011 order
to disclose the required documents for an audit.
The defendant claims that the court improperly con-
ditioned his reinstatement on the disclosure of what he
describes as ‘‘protected information.’’ It is true that,
under rule 1.6 (a) of the Rules of Professional Conduct,
‘‘[a] lawyer shall not reveal information relating to rep-
resentation of a client unless the client gives informed
consent . . . .’’ This rule advances the ‘‘fundamental
principle in the client-lawyer relationship . . . that the
lawyer maintain confidentiality of information relating
to the representation. The client is thereby encouraged
to communicate fully and frankly with the lawyer even
as to embarrassing or legally damaging subject matter.’’
(Internal quotation marks omitted.) Lewis v. Statewide
Grievance Committee, 235 Conn. 693, 702, 669 A.2d
1202 (1996), quoting Rules of Professional Conduct 1.6,
commentary. Nonetheless, ‘‘[t]he Rules of Professional
Conduct provide that an attorney may divulge such
materials in certain circumstances.’’ Woodbury Knoll,
LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 764,
48 A.3d 16 (2012). Indeed, under rule 1.6 (c) (4) of the
Rules of Professional Conduct, ‘‘[a] lawyer may reveal
such information to the extent the lawyer reasonably
believes necessary to . . . [c]omply with . . . a
court order.’’
Furthermore, the commentary to rule 1.6 of the Rules
of Professional Conduct provides guidance to attorneys
who are ordered to disclose records that they consider
to be confidential. If clients do not consent to disclo-
sure, the lawyer ‘‘should assert on behalf of the client
all nonfrivolous claims that the order is not authorized
by other law or that the information sought is protected
against disclosure by the attorney-client privilege or
other applicable law. In the event of an adverse ruling,
the lawyer must consult with the client about the possi-
bility of appeal . . . . Unless review is sought, how-
ever, subsection (c) (4) permits the lawyer to comply
with the court’s order.’’ In other words, although rule
1.6 of the Rules of Professional Conduct permits attor-
neys to assert nonfrivolous claims to prevent disclosing
records that they consider confidential, that rule does
not permit attorneys, in perpetuity, to defy the orders
of a court after unsuccessfully seeking review of the
court’s order for disclosure.
Here, the defendant first made multiple claims to
prevent disclosing documents for audit. Next, after
those objections proved unsuccessful, the defendant
still refused to provide the unredacted documents nec-
essary for audit, instead, redacting the documents him-
self prior to submitting them to the court and, as a
result, was suspended from the practice of law. The
defendant then timely appealed from the suspension
and the orders requiring the disclosure of documents,16
but this court dismissed that appeal because the defen-
dant failed to file a preliminary statement of issues,
even after we provided to him an opportunity to remedy
the omission. This court then refused to entertain the
defendant’s untimely request to open the judgment and
vacate the dismissal. Thus, after the prior appeal was
dismissed, the Rules of Professional Conduct permitted
the defendant to comply with the orders of the court.
See Rules of Professional Conduct 1.6 (c) (4), com-
mentary.
The March 16, 2012 order, and the previous orders
requiring the defendant to provide documentation nec-
essary for an audit, remained in place after the defen-
dant’s previous unsuccessful appeal. The January 28,
2014 order provided that the court would not entertain
a motion for reinstatement until an audit was conducted
pursuant to the March 16, 2012 order. Consequently,
under the circumstances presented in this case, it was
not clearly erroneous for the court to order that the
defendant comply with its previous orders before it
entertained another motion for reinstatement to the
practice of law.
B
Finally, the defendant claims that his suspension
should have been lifted because he already had served
a suspension for a period longer than the six months
provided for in the agreement. According to the defen-
dant, the court’s denial of his motion for reinstatement
‘‘changed the parties’ agreement’’ by imposing a longer
suspension than that specified in the agreement. This
claim has no merit.
The Superior Court possess the ‘‘inherent authority
to regulate attorney conduct and to discipline the mem-
bers of the bar.’’ Heslin v. Connecticut Law Clinic of
Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938
(1983). ‘‘[C]ourts . . . can and ought to be [held
responsible] for the fitness of those who enjoy the privi-
leges of the legal profession under their authority and
sanction.’’ In re Peck, 88 Conn. 447, 451, 91 A. 274
(1914). ‘‘An attorney as an officer of the court in the
administration of justice, is continually accountable to
it for the manner in which he exercises the privilege
which has been accorded him.’’ (Emphasis added; inter-
nal quotation marks omitted.) Massameno v. Statewide
Grievance Committee, supra, 234 Conn. 554–55.
As part of his agreement with disciplinary counsel,
the defendant consented to ‘‘submit[ting] his IOLTA
account [records] for monthly audit by the Statewide
Grievance Committee . . . .’’ He also consented to
‘‘fully cooperat[ing] with the Statewide Grievance Com-
mittee and . . . promptly answer[ing] all questions and
provid[ing] all necessary documents.’’ Moreover, the
agreement provided, in relevant part, that if the defen-
dant ‘‘fail[ed] to comply with one or more of [its] condi-
tions . . . the court shall order that the [defendant] be
suspended from the practice of law for six months, and
[the defendant] must be reinstated by motion to the
court, subject to such conditions as the court might
impose at the time of reinstatement.’’ (Emphasis
added.)
Here, the defendant refused to provide to the State-
wide Grievance Committee the documents necessary
for an IOLTA account audit and, as a result, the court
imposed a six month suspension. Nonetheless, pursuant
to his agreement with disciplinary counsel, if the defen-
dant wished to be reinstated he was ‘‘subject to . . .
conditions as the court might impose . . . .’’ The Janu-
ary 28, 2014 order, which provided that ‘‘[t]he court will
not entertain a motion for reinstatement until an audit
is performed,’’ reaffirmed the agreement, wherein the
defendant agreed to cooperate with an audit of his
IOLTA account. The court’s refusal to grant reinstate-
ment until the defendant provided the necessary docu-
ments for an IOLTA account audit, thus, did not change
the terms of the agreement. After the defendant was
suspended for, inter alia, failing to provide a former
client with a proper accounting of funds, the court was
fully entitled to condition his return to the practice of
law on cooperating with an audit of his client trust
account. Consequently, it was not clearly erroneous for
the court to deny the defendant’s motion for rein-
statement.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Practice Book § 2-47.
2
This is the third appeal in this presentment that the defendant has filed
with this court. The first appeal was filed on March 30, 2012, and was
dismissed as an interlocutory appeal. See footnote 10 of this opinion. The
second appeal was filed on January 30, 2013, and was dismissed for the
failure to submit a preliminary statement of issues. See Practice Book § 63-
4 (a) (1).
3
Rules of Professional Conduct 1.15 (a) (5) provides in relevant part:
‘‘ ‘IOLTA account’ means an interest—or dividend—bearing account, estab-
lished by a lawyer or law firm for clients’ funds at an eligible institution
from which funds may be withdrawn upon request by the depositor without
delay. An IOLTA account shall include only client or third person funds,
except as permitted by subsection (h) (6) [of this rule].’’
4
In this appeal, the defendant also challenges the court’s denial of his
motion for stay. The only motion for stay that the defendant filed, however,
was in connection with his March 30, 2012 interlocutory appeal. That appeal
was dismissed for lack of final judgment. See footnote 10 of this opinion.
The defendant never filed a motion for stay in connection with his January
30, 2013 appeal, nor with this appeal. Thus, the defendant’s challenge of
the court’s denial of his motion for stay is not properly before us in this
appeal and, therefore, we do not address this claim.
5
Specifically, disciplinary counsel alleged in the presentment that, after
the defendant was awarded attorney’s fees arising from his representation
of Kruk, the defendant had failed to: ‘‘properly account for [Kruk’s] recovery
according to the terms of the fee agreement . . . provide [Kruk] with a
proper accounting of his fees and expenses in connection with [the dispersal
of attorney’s fees arising from the representation] . . . disperse to [Kruk]
the amount to which she was entitled under the terms of the fee agreement
in the distribution of the attorney’s fees award . . . [and] provide [Kruk’s]
file to [her new counsel].’’
6
The terms of the agreement were filed with the court through an affidavit
by the defendant and a written agreement signed by both parties. The court
then issued an order in which the agreement’s terms were incorporated.
7
In the agreement, the defendant admitted that there was ‘‘sufficient
evidence to prove . . . that [his] conduct violated rule 1.15 (a) (5) (e) of
the Rules of Professional Conduct.’’ The same subsection is quoted both in
the presentment and in the order enforcing the agreement’s terms. This
appears to be a scrivener’s error because there is no such subsection, and
the context plainly refers to the subject matter contained in rule 1.15 (e)
of the Rules of Professional Conduct, which provides in relevant part that
‘‘upon request by the client . . . [the attorney] shall promptly render a full
accounting regarding’’ funds received in which a client has an interest.
8
The agreement provided that the documents that the defendant would
need to provide included, but were not limited to, ‘‘bank statements, can-
celled checks, deposit slips, general ledger[s] [and] individual client ledgers,
and HUD-1’s, settlement statements and invoices relative to all disburse-
ments . . . .’’
9
The court issued two orders on March 16, 2012, that required the defen-
dant to provide the Statewide Grievance Committee documents for audit.
One order pertained to the period of November 4, 2011 to December 16,
2011; the other order pertained to the months of December, 2011, and
January, 2012.
10
On March 30, 2012, the defendant appealed from the denial of his January
31, 2012 motion to vacate and the orders requiring that he provide to the
Statewide Grievance Committee the documents pertaining to his IOLTA
account. Disciplinary counsel moved to dismiss the interlocutory appeal for
lack of a final judgment, and this court dismissed that appeal on July 25, 2012.
11
The defendant stated that he would not provide unredacted documents
because, even if his clients’ names were redacted through an in camera
review, ‘‘the identity of the clients would be easily ascertained by anybody
auditing the records through the information that they received.’’
12
‘‘Nisi orders are orders [that] are conditional and empower the affected
party either to avoid an adverse order of the court or to cause an existing
adverse order to be set aside or vacated by complying with the specified
conditions.’’ (Internal quotation marks omitted.) State v. Miscellaneous Fire-
works, 132 Conn. App. 679, 688, 34 A.3d 992 (2011).
13
Pursuant to Practice Book § 71-5, the defendant had ten days from the
date of the official release of this court’s decision, until March 22, 2013, to
file a motion to open and vacate the dismissal of the appeal. The defendant
did not file his motion to open and vacate, however, until April 4, 2013.
Thus, his motion was untimely.
14
The defendant erroneously contends that we must review the claims
that he previously appealed because the imposition of his suspension was
not an appealable final judgment. ‘‘A judgment is considered final if the
rights of the parties are concluded so that further proceedings cannot affect
them . . . .’’ (Internal quotation marks omitted.) Stern v. Allied Van Lines,
Inc., 246 Conn. 170, 174, 717 A.2d 195 (1998). Practice Book § 2-47 (a)
provides that, after a hearing on the presentment, ‘‘the court shall render
a judgment dismissing the complaint or imposing discipline . . . .’’ Thus,
the imposition of attorney discipline concludes the rights of the parties
concerning a pending presentment, and is considered a final judgment for
the purposes of appeal.
Here, the imposition of a six month suspension concluded the parties’
rights concerning the presentment. Therefore, the court’s January 11, 2013
order suspending the defendant constituted an appealable final judgment.
See, e.g., State v. Longo, 192 Conn. 85, 89, 469 A.2d 1220 (1984) (‘‘[t]he
appealable final judgment in a criminal case is ordinarily the imposition of
sentence’’ [internal quotation marks omitted]). The defendant, then, timely
appealed that judgment on January 30, 2013.
15
The defendant had several available options to obtain review of his
claims. He could have timely pursued his claims in his prior appeal by
complying with Practice Book § 63-4 (a) (1) in the first instance or, after
failing to comply with Practice Book § 63-4 (a) (1), he could have complied
with the nisi order and, thus, avoided dismissal of his appeal. Additionally,
before this court dismissed his appeal, he could have moved to extend the
nisi order or, after this court dismissed his appeal, he could have timely
filed his motion to open and vacate this court’s dismissal and, consequently,
potentially could have obtained review of his claims. He did not to take
advantage of any of these options.
16
In the appeal form for his January 30, 2013 appeal, the defendant specifi-
cally listed the ‘‘order to disclose confidential client information’’ as an
appealable judgment that he was challenging.