Disciplinary Counsel v. Serafinowicz ( 2015 )

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DISCIPLINARY COUNSEL v. ROBERT
SERAFINOWICZ
(AC 36489)
Sheldon, Keller and Mullins, Js.
Argued April 16—officially released September 22, 2015
(Appeal from Superior Court, judicial district of
Waterbury, Agati, J.)
Brittany B. Paz, with whom, on the brief, was Nor-
man A. Pattis, for the appellant (defendant).
Desi Imetovski, assistant chief disciplinary counsel,
with whom was Suzanne B. Sutton, first assistant chief
disciplinary counsel, for the appellee (plaintiff).
Opinion
SHELDON, J. In this presentment filed by the plain-
tiff, Disciplinary Counsel, alleging misconduct by the
defendant, Attorney Robert Serafinowicz, the defendant
appeals from the judgment of the trial court suspending
him from the practice of law for violating rules 8.2 (a)
and 8.4 (4) of the Rules of Professional Conduct as a
result of having made statements of fact known to be
false, or with reckless disregard for the truth, concern-
ing the qualifications or integrity of a judge and for
engaging in conduct prejudicial to the administration
of justice. On appeal, the defendant claims that (1) the
trial court abused its discretion when it suspended him
from the practice of law for a period of 120 days for
his admitted conduct; and (2) he was disciplined for
protected speech in violation of the first amendment.
We affirm the judgment of the trial court.
The record discloses the following relevant facts and
procedural history. The defendant is a practicing crimi-
nal defense attorney who was admitted to the bar in
this state in 2004. In September, 2011, the defendant
represented a Derby Middle School employee in a pre-
trial disposition before Judge Burton Kaplan in the geo-
graphical area number five courthouse in Derby. The
case, which involved the alleged commission of certain
narcotics related offenses on school property, gener-
ated substantial media interest and publicity.
On September 20, 2011, the defendant filed a com-
plaint with the Judicial Review Council (Judicial
Review) against Judge Kaplan, alleging bias. On Septem-
ber 28, 2011, the defendant filed a motion to recuse
Judge Kaplan in the pending case against the Derby
Middle School employee, citing as the basis for the
motion the filed complaint against Judge Kaplan and
the potential conflict arising therefrom. On September
29, 2011, Judicial Review returned the complaint to the
defendant by letter, indicating that additional informa-
tion was needed to process it. The defendant did not
timely submit the information requested, and as a result,
the complaint was not processed. Thereafter, the defen-
dant appeared before Judge Kaplan on five occasions
over a period of several months.
On February 8, 2012, the defendant disclosed to a
local online media outlet that he had filed a complaint
against Judge Kaplan. Shortly thereafter, on February
28, 2012, the defendant appeared before Judge Kaplan
and claimed his motion to recuse. At the outset of the
hearing, Judge Kaplan noted that he had made inquiries
about the stated basis for the recusal motion—the com-
plaint against him that had allegedly been filed with
Judicial Review—and had been informed that the com-
plaint had been returned as incomplete. Judge Kaplan
further stated that the defendant had appeared before
him on five occasions, subsequent to filing the motion
to recuse, and had not claimed the motion or indicated
that there was a potential conflict. On that subject,
Judge Kaplan stated: ‘‘I don’t know how you can file a
motion, tell the clerk not to claim it, know that the
complaint has been returned, and not amend or with-
draw your motion that makes reference to a complaint
that didn’t exist.’’ Thereafter, Judge Kaplan denied the
recusal motion, but recused himself sua sponte.
Immediately following the hearing, the defendant
gave a statement to the press on the steps of the Derby
courthouse in which he made several disparaging
remarks about Judge Kaplan. His comments were video-
taped and later publicly disseminated. The defendant
stated, inter alia: ‘‘The man’s a disgrace to the bench.
He shouldn’t be sitting on the bench. It’s clear . . .
very clear that the man does not give people a fair
shake, it’s clear that he plays favorites. There’s certain
lawyers that he likes and certain lawyers that he doesn’t.
. . . In case you didn’t notice, he didn’t like the fact
that the media became involved in this because once
the media becomes involved, his veil of secrecy which
allows judges to do whatever they want all of a sudden
goes away to somewhere else, all of a sudden disap-
pears. . . . I filed that motion to preserve my client’s
rights because I saw what was the most egregious act
of judicial conduct that I will ever see in my career. He
talks about that’s not the way to practice law. That
man’s never tried a case in his life. Compare my trial
record to his, his is zero and zero, look what mine is,
not losing a case since 2007. . . .
‘‘[Judge Kaplan] obviously had something against [my
client], and I wasn’t going to stand there and I wasn’t
going to take it. When I raised my right hand to take
that oath and say I was going to be a lawyer, I vowed
that I was going to represent every one of my clients
to the best of my ability and I’m going to do that. Prior
to this case even being docketed for the first time, he
[Judge Kaplan] gave an opinion on the case, which he’s
not supposed to do. That is unacceptable and—now,
at least, we’re going to have a judge who’s going to
have a fair and open mind and give this person a fair
shake because it’s clear that he was not going to get
one in this courthouse. And as I said before, the man’s
a disgrace to the bench. Everyone within the state of
Connecticut should have a problem with their tax dol-
lars going to pay his salary.’’
Subsequent to the defendant’s statement to the press,
the plaintiff filed a grievance complaint against the
defendant, alleging, inter alia, violations of Rules of
Professional Conduct 8.2 (a)1 and 8.4 (4).2 The defen-
dant tendered an admission of the misconduct, denying
some or all of the material facts, but acknowledging
that there was sufficient evidence to prove such mate-
rial facts by clear and convincing evidence.3 Pursuant
to Practice Book § 2-82 (c), the matter was submitted
to the court for imposition of sanctions.4 A hearing was
held on December 2, 2013, at which time the court
heard evidence relating to the defendant’s videotaped
statements to the press, and heard arguments from the
parties on the appropriate imposition of sanctions. The
defendant presented mitigation evidence, including the
testimony of a character witness, Attorney John R. Wil-
liams, and letters from members of the community,
attesting to his character and capabilities as a lawyer.
The defendant was given the opportunity to allocute,
and he expressed his regret over his conduct, which
he acknowledged was ‘‘unprofessional’’ and ‘‘unaccept-
able.’’ The plaintiff sought the suspension of the defen-
dant’s license to practice law for a period of five years.
The defendant, in turn, argued that suspension was
not the appropriate disposition. Thereafter, the court
rendered its decision, imposing a 120 day period of
suspension. It further ordered that the defendant attend
a continuing legal education course on legal ethics and
professional responsibility. This appeal followed.
I
The defendant first claims that the court abused its
discretion in imposing sanctions.5 More specifically, the
defendant argues that the court improperly weighed
certain aggravating factors and failed to accord suffi-
cient weight to mitigation evidence demonstrating his
good character. The defendant further argues that the
120 day period of suspension is excessive when com-
pared to sanctions imposed in other cases involving
more egregious conduct than that at issue in his case.
The defendant’s arguments are without merit.
At the outset, we set forth the applicable legal princi-
ples. ‘‘The Superior Court possesses inherent authority
to regulate attorney conduct and to discipline the mem-
bers 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. . . . In
the exercise of its disciplinary power, the Superior
Court has adopted the Code of Professional Responsi-
bility [now the Rules of Professional Conduct].’’ (Inter-
nal quotation marks omitted.) Chief Disciplinary
Counsel v. Rozbicki, 150 Conn. App. 472, 478, 91 A.3d
932, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).
‘‘Disciplinary proceedings are for the purpose of pre-
serving the courts from the official ministration of per-
sons unfit to practice in them.’’ (Internal quotation
marks omitted.) Ex parte Wall, 107 U.S. 265, 288, 2 S.
Ct. 569, 27 L. Ed. 552 (1883). ‘‘Therefore, [i]f a court
disciplines an attorney, it does so not to mete out pun-
ishment to an offender, but [so] that the administration
of justice may be safeguarded and the courts and the
public protected from the misconduct or unfitness of
those who are licensed to perform the important func-
tions of the legal profession.’’ (Internal quotation marks
omitted.) Statewide Grievance Committee v. Burton,
88 Conn. App. 523, 531, 871 A.2d 380 (2005), aff’d, 282
Conn. 1, 917 A.2d 966 (2007).
‘‘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, 61 Conn. App. 445, 459–60,
767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d
64 (2001).
‘‘Courts considering sanctions against attorneys mea-
sure the defendant’s conduct against the rules. Although
the rules define misconduct, they do not provide guid-
ance for determining what sanctions are appropriate.
. . . Connecticut courts reviewing attorney miscon-
duct, therefore, have consulted the American Bar Asso-
ciation’s Standards for Imposing Lawyer Sanctions
[ABA standards] . . . . Although the [ABA] standards
have not been officially adopted in Connecticut, they
are used frequently by the Superior Court in evaluating
attorney misconduct and in determining discipline, as
they were by the court here.’’ (Citations omitted; inter-
nal quotation marks omitted.) Statewide Grievance
Committee v. Fountain, 56 Conn. App. 375, 381, 743
A.2d 647 (2000). ‘‘[A]fter 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 mitigation factors.’’
Burton v. Mottolese, 267 Conn. 1, 55, 835 A.2d 998 (2003),
cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed.
2d 983 (2004).
The aggravating factors include: ‘‘(a) prior disciplin-
ary offenses; (b) dishonest or selfish motive; (c) a pat-
tern of misconduct; (d) multiple offenses; (e) bad faith
obstruction of the disciplinary proceeding by intention-
ally failing to comply with rules or orders of the disci-
plinary agency; (f) submission of false evidence, false
statements, or other deceptive practices during the dis-
ciplinary process; (g) refusal to acknowledge wrongful
nature of conduct; (h) vulnerability of victim; (i) sub-
stantial experience in the practice of law; [and] (j) indif-
ference to making restitution.’’ (Internal quotation
marks omitted.) Id. The mitigation factors include: ‘‘(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.) Id., 55–56.
In the present case, the trial court noted that its
purpose in imposing sanctions was not to punish the
defendant, but to ‘‘preserve public respect for our judi-
ciary by protecting it from unwarranted and inappropri-
ate attacks.’’ The court further noted that the
defendant’s publicized comments against Judge Kaplan
were baseless. In making its determination that a period
of suspension was appropriate given the conduct at
issue, the court took into account the aggravating fac-
tors, namely, what it perceived as the defendant’s dis-
honest or selfish motive in attacking Judge Kaplan and
the pattern of misconduct. The court also considered
the mitigating factors, including, ‘‘[the] absence of [a]
prior disciplinary record, [the defendant’s] cooperative
attitude toward the disciplinary proceedings, and [his]
expression of remorse . . . .’’
The defendant contends that the court’s reliance on
the aggravating factors lacked a factual basis in the
record, ‘‘making its punishment erroneous.’’ The defen-
dant, however, did not dispute the factual basis for
the allegations of misconduct. Instead, he submitted an
affidavit admitting that there was sufficient evidence
to establish that he had violated the rules. The record
demonstrates, consistent with his affidavit, that the
defendant failed to withdraw his motion to recuse once
it became apparent it was predicated on incorrect infor-
mation. The defendant then made statements to the
press questioning Judge Kaplan’s motives and profes-
sional credentials while touting his own self-avowed
expertise as a lawyer. While the candid criticism of
lawyers aimed at bettering the administration of justice
has an important place in our legal system, the intem-
perate statements made by the defendant in this
instance served no useful purpose. Thus, notwithstand-
ing the defendant’s arguments to the contrary, there
was ample support for the court’s conclusion that he
engaged in a pattern of misbehavior that exhibited a
selfish or dishonest motive.
The defendant argues that the court failed to properly
consider the relevant mitigating evidence. Specifically,
the defendant argues that the court failed to properly
consider his ‘‘character and reputation,’’ which he
claims was a necessary consideration because he sub-
mitted four letters attesting to his good character and
presented a character witness, Attorney Williams. This
argument lacks merit. First, the court was free to reject
the defendant’s character evidence; and second, there
is no requirement that the court set forth its express
consideration of such evidence in its memorandum of
decision. In fashioning the appropriate penalty in this
case, the court took into account the allocution by the
defendant, the absence of a prior disciplinary record,
and his cooperation relative to the proceedings. More-
over, the court imposed considerably less onerous sanc-
tions than those requested by the plaintiff, suggesting
that it weighed the mitigation evidence in rendering
its decision.
Last, the defendant argues that the sanctions imposed
in this case constitute an abuse of the court’s discretion
in light of other cases involving allegedly similar con-
duct where a lesser penalty was imposed. Absent a
showing that the trial court has acted arbitrarily, we
defer to the trial court’s determination of the appro-
priate discipline. Statewide Grievance Committee v.
Spirer, 247 Conn. 762, 781, 725 A.2d 948 (1999). ‘‘[E]very
reasonable presumption should be given in favor of the
correctness of the court’s ruling. . . . Reversal is
required only where an abuse of discretion is manifest
or where injustice appears to have been done.’’ (Internal
quotation marks omitted.) Id. Contrary to the defen-
dant’s argument, the imposition of sanctions should be
individualized and tailored to the facts of the particular
case. Indeed, the ABA standards on which the defendant
relies, and which serve as a guide for imposing disci-
pline, reflect that goal. In this case, the court concluded
that a 120 day period of suspension was necessary to
preserve respect for the judiciary, and to encourage the
defendant and other practitioners to conduct them-
selves and their practice in accordance with profes-
sional standards. On the basis of the record before us,
we cannot conclude that the court’s imposition of a 120
day period of suspension was a clear abuse of dis-
cretion.
II
The defendant next claims that he was sanctioned
for making constitutionally protected statements in vio-
lation of his first amendment rights. ‘‘Our rules of proce-
dure do not allow a [party] to pursue one course of
action at trial and later, on appeal, argue that a path
he rejected should now be open to him. . . . To rule
otherwise would permit trial by ambuscade.’’ (Internal
quotation marks omitted.) Dockter v. Slowik, 91 Conn.
App. 448, 462, 881 A.2d 479, cert. denied, 276 Conn. 919,
888 A.2d 87 (2005). Moreover, a party relinquishes his
right to assert a constitutional violation on appeal where
his previous course of action manifested an intention
to abandon the claim. Gagne v. Vaccaro, 80 Conn. App.
436, 445–46, 835 A.2d 491 (2003), cert. denied, 268 Conn.
920, 846 A.2d 881 (2004). ‘‘The rule is applicable that
no one shall be permitted to deny that he intended the
natural consequences of his acts and conduct.’’ (Inter-
nal quotation marks omitted.) Id. Here, the defendant
not only failed to assert his constitutional argument at
trial, he tendered an admission of misconduct. As a
consequence, the defendant has waived his first amend-
ment claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rule 8.2 (a) of the Rules of Professional Conduct provides: ‘‘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, adjudicatory officer or public legal officer, or of a candidate for
election or appointment to judicial or legal office.’’
2
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
Specifically, the defendant submitted an affidavit admitting the existence
of ‘‘sufficient evidence to prove by clear and convincing evidence that [he]
made statements of fact known to be false, or with reckless disregard for
the truth, concerning the qualifications or integrity of a judge, and that this
conduct constituted a violation of Rule 8.2 (a) of the Rules of Professional
Conduct.’’ The defendant further admitted that ‘‘there is sufficient evidence
to prove by clear and convincing evidence that [he] failed to amend or
withdraw [his] motion to recuse once [his] complaint to Judicial Review
was returned to [him] for further information, with a letter stating that it
could not be processed, and that this conduct constituted a violation of
Rule 8.4 (4) of the Rules of Professional Conduct.’’
4
Practice Book § 2-82 (c) provides in relevant part: ‘‘If disciplinary counsel
and the respondent are unable to agree to a proposed disposition of the
matter, the respondent may nonetheless tender an admission of misconduct,
which shall be in accordance with subsection (a) of this section. If such an
admission of misconduct without proposed disposition is tendered, disciplin-
ary counsel shall cause it to be forwarded, together with the complaint
and the record in the matter, for consideration, possible acceptance and
disposition as follows: (i) by the court, in all matters involving possible
suspension or disbarment, or possible imposition of a period of probation
or other sanctions beyond the authority of the statewide grievance commit-
tee, as set forth in Section 2-37; or (ii) by a reviewing committee of the
statewide grievance committee, in all other matters. . . .’’
5
The parties make belabored arguments concerning the factual underpin-
nings of the disciplinary violations in this case. This rehash of the facts and
related arguments is irrelevant to our review of the claims on appeal. In
light of the disposition in this case, which the court rendered on the basis
of the defendant’s admission of misconduct, the sole issue before this court
is whether the court abused its discretion in imposing sanctions on that basis.