Disciplinary Counsel v. Snaider , 149 Conn. App. 738 ( 2014 )

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DISCIPLINARY COUNSEL v. BENSON A. SNAIDER
(AC 35736)
Lavine, Keller and Borden, Js.
Argued February 7—officially released April 29, 2014
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Ira B. Grudberg, for the appellant (defendant).
Suzanne B. Sutton, first assistant chief disciplinary
counsel, with whom was Desi Imetovski, assistant disci-
plinary counsel, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendant, Benson A. Snaider, for-
merly of the Connecticut bar, appeals from the judg-
ment of the trial court rendered after the court accepted
his resignation from the bar and imposed discipline
pursuant to Practice Book § 2-47 (d). On appeal, the
defendant claims that (1) the court’s acceptance of his
resignation constituted a final judgment and therefore
the court (a) had no authority to impose discipline on
him, and thereby (b) denied him due process of law,
and (2) the court imposed discipline that is unfair and
unreasonable given his age, namely, seventy-five years
old. We disagree with the defendant and, thus, affirm
the judgment of the trial court.
The following facts are relevant to our resolution of
the defendant’s appeal. On October 13, 2011, pursuant
to Practice Book § 2-42,1 the plaintiff, Disciplinary
Counsel, acting through Attorney Suzanne B. Sutton,
first assistant chief disciplinary counsel, applied for an
order of interim suspension of the defendant’s license
to practice law, alleging that he had misappropriated
the funds of a client. The defendant admitted that he
had misappropriated his client’s funds, but challenged
the amount of the misappropriation. Following a hear-
ing held on November 3, 2011, the court found that the
defendant had committed professional misconduct by
misappropriating the funds of a client and that he pre-
sented ‘‘a threat of irreparable harm to current and
potential clients.’’ The court suspended the defendant’s
license to practice law, appointed a trustee to protect
the interests of his clients, and ordered the Statewide
Grievance Committee to conduct an audit of his
trustee accounts.2
On July 10, 2012, the plaintiff filed a request to amend
its application from an interim order of suspension to
a presentment complaint (presentment), pursuant to
Practice Book §§ 2-403 and 2-47.4 The presentment
alleged two counts related to the defendant’s misappro-
priation of his client’s funds and was filed subsequent
to a decision issued by the Statewide Grievance Com-
mittee and the defendant’s felony conviction,5 both of
which occurred after the defendant’s license to practice
law was suspended.
The court scheduled a hearing on the presentment
to be held on November 16, 2012. On October 26, 2012,
however, the defendant submitted to the Superior Court
his resignation from the bar without conditions.6 The
November 16, 2012 hearing was continued for unrelated
reasons, and on November 21, 2012, the court accepted
the defendant’s resignation from the bar. The court
continued the presentment proceedings to permit the
parties to present evidence as to mitigating and aggra-
vating circumstances regarding the discipline to be
imposed. The defendant, however, argued that, because
the court had accepted his resignation, the court lacked
personal jurisdiction to discipline him for the miscon-
duct alleged in the presentment. Counsel for the plain-
tiff disagreed. Thereafter, the parties submitted briefs
on the issue of the court’s jurisdiction over the defen-
dant. On March 26, 2013, the court concluded that it
had jurisdiction to determine when the defendant could
apply, if ever, for readmission to the bar.
The parties appeared before the court on April 29,
2013. The plaintiff presented evidence of aggravating
factors with regard to the defendant’s misconduct and
argued that he should not be permitted to apply for
readmission for twelve years. The defendant presented
no evidence but argued that, given his age and the
fact that he had practiced law for fifty years without
misconduct, he should be permitted to apply for read-
mission to the bar in five years. The court issued its
order on May 8, 2013, prohibiting the defendant from
applying for readmission to the bar for twelve years
from April 29, 2013.7 The defendant appealed.
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. . . . In the exercise of its disciplinary
power, the Superior Court has adopted the Code of
Professional Responsibility [now Rules of Professional
Conduct].’’ (Citations omitted; internal quotation marks
omitted.) Massameno v. Statewide Grievance Commit-
tee, 234 Conn. 539, 553–54, 663 A.2d 317 (1995).
‘‘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 (1882). ‘‘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 jus-
tice 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 powers which reside in
courts to inquire into the conduct of their own officers,
and to discipline them for misconduct. . . . In pro-
ceedings such as those at issue, therefore, 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 Grievance Committee v. Rozbicki,
211 Conn. 232, 238–39, 558 A.2d 986 (1989).
I
The defendant first claims that, after it accepted his
resignation from the bar pursuant to Practice Book
§ 2-52, the court improperly modified its judgment by
disciplining him, i.e., ordered that he was not permitted
to apply for readmission to the bar for twelve years,
pursuant to Practice Book § 2-47 (d). We disagree, con-
cluding that the court’s order disciplining the defendant
is consistent with the comprehensive disciplinary
scheme established to safeguard the public and the
court from unfit practitioners. See Massameno v. State-
wide Grievance Committee, supra, 234 Conn. 554.
Moreover, a presentment is justiciable if the alleged
misconduct occurred prior to the attorney’s suspension
or disbarment on an unrelated matter. See Statewide
Grievance Committee v. Burton, 88 Conn. App. 523,
524–33, 871 A.2d 380 (2005) (trial court had jurisdiction
to adjudicate presentment of disbarred lawyer), aff’d,
282 Conn. 1, 917 A.2d 966 (2007).
‘‘[A] challenge to the personal jurisdiction of the trial
court is a question of law, and, therefore, our review is
plenary.’’ Investment Associates v. Summit Associates,
Inc., 132 Conn. App. 192, 202, 31 A.3d 820 (2011), aff’d,
309 Conn. 840, 74 A.3d 1192 (2013).
The following additional facts are relevant to our
resolution of this claim. During the November 21, 2012
hearing, the court accepted the defendant’s resignation
from the bar and stated: ‘‘The court will accept the
resignation, and again, I’m going to hear argument as
I understand it on when [the defendant] could apply
for readmission . . . .’’
After the court inquired whether there were ques-
tions, counsel for the defendant argued that, because
the defendant had resigned from the bar, the court
lacked jurisdiction to enter an order of discipline. More-
over, he argued, it is the responsibility of the Connecti-
cut Bar Examining Committee to determine if the
defendant may ever apply for readmission. The court
stated that it would retain jurisdiction and that it would
hear argument as to when the defendant could apply
for readmission. The plaintiff was seeking a twelve year
period and the defendant was willing to accept a five
year period. The defendant also continued to argue, on
the basis of his resignation, that a final judgment had
been rendered, and the court no longer had jurisdiction
over him. The parties briefed the issue of jurisdiction
and appeared before the court to argue the matter on
March 26, 2013. The court concluded that it had jurisdic-
tion to issue a disciplinary order.
On April 29, 2013, the court heard evidence presented
by the plaintiff, including evidence that the defendant
had been charged with larceny in the first degree for
allegedly misappropriating the funds of a second client,
and heard argument from both counsel as to when the
defendant should be permitted to apply for readmission.
The court issued an order on May 8, 2013, stating, in
part, that it had jurisdiction to adjudicate the present-
ment and that the defendant ‘‘is not eligible to apply
for readmission to the Connecticut [b]ar for a period
of twelve years from April 29, 2013. He will be subject
to the imposition of such conditions upon his applica-
tion for reinstatement as may be deemed appropriate
at that time.’’ See footnote 7 of this opinion.
On appeal, the defendant argues that, at the time his
resignation was before the court, the court could have
pursued one of several options: (1) defer ruling on his
resignation until it had heard evidence and argument
with regard to further sanctions; (2) decline to accept
the resignation and adjudicate the presentment pursu-
ant to Practice Book § 2-47 (d); or (3) decline to accept
his resignation unless it included a satisfactory limita-
tion on his right to apply for readmission. It is the
defendant’s position that, when the court accepted his
resignation, it rendered a final judgment, which defined
his rights and status, and any further action by the court
as to him constituted a modification of the judgment.8
The defendant grounds his claim, in part, in Practice
Book (2012) § 2-52 (b), which was in effect at the time
of the November 21, 2012 hearing.9 The defendant
argues that under the 2012 version of § 2-52 (b), which
concerns the resignation of an attorney, the court did
not have the authority or discretion to impose ‘‘such
other discipline as the court deems appropriate.’’ The
defendant notes that that language is contained in Prac-
tice Book § 2-47 (d), which governs presentments. He
concludes therefore that, in 2012, § 2-47 (d), not § 2-52,
permitted the court to restrict the ability of a person
who has been disbarred to apply for readmission.10
To support his argument, the defendant relies on
one of the tenets of statutory construction: ‘‘[w]here a
statute, with reference to one subject contains a given
provision, the omission of such provision for a similar
statute concerning a related subject . . . is significant
to show that a different intention existed.’’ (Internal
quotation marks omitted.) Hatt v. Burlington Coat Fac-
tory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Conse-
quently, the defendant concludes that because the court
accepted his resignation pursuant to Practice Book
(2012) § 2-52 (b), it was powerless to impose disciplin-
ary sanctions that he did not volunteer in his resig-
nation.
We disagree with the defendant because Practice
Book §§ 2-47 (d) and 2-52 (b) are functionally different.
Section 2-47 is the method by which alleged attorney
misconduct is brought to the attention of the Superior
Court by the disciplinary counsel. Section 2-52 is an
option available to an attorney under investigation by a
grievance panel, reviewing committee or the Statewide
Grievance Committee or against whom a presentment
for misconduct is pending to resign from the bar without
a trial. In his case, the defendant exercised his option
to resign from the bar. His resignation, however, did
not foreclose the imposition of discipline. Moreover,
under our common law, the court has broad discretion
to discipline an attorney to protect the court from indi-
viduals who are unfit to practice law. See Massameno
v. Statewide Grievance Committee, supra, 234 Conn.
553–54.
‘‘There are three possible sources for the authority
of courts to sanction counsel and pro se parties. These
are inherent power, statutory power, and the power
conferred by published rules of the court.’’ In the Matter
of Presnick, 19 Conn. App. 340, 347, 563 A.2d 299 (1989),
cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). ‘‘That
power may be expressly recognized by rule or statute
but it exists independently of either and arises because
of the control that must necessarily be vested in courts
in order for them to be able to manage their own affairs
as to achieve an orderly and expeditious disposition
of cases.’’ Id. ‘‘[R]eference to specific rules does not
constitute the only basis for a finding of guilt in attorney
misconduct proceedings. Rather, reference to a specific
rule simply assists the trial court in drawing its conclu-
sions as to whether, under the totality of circumstances,
professional misconduct occurred.’’ Statewide Griev-
ance Committee v. Botwick, 226 Conn. 299, 310, 627
A.2d 901 (1993).
Our conclusion that the court had jurisdiction over
the defendant to impose discipline after it accepted
his resignation is controlled by this court’s decision in
Statewide Grievance Committee v. Burton, supra, 88
Conn. App. 523. In Burton, this court determined that
the trial court had subject matter jurisdiction over ‘‘an
attorney who was disbarred subsequent to the events
alleged in the presentment . . . because the issue is
justiciable.’’ Id., 524. In the present case, the misconduct
alleged in the presentment, also, was justiciable.
Burton concerned an attorney who had been dis-
barred in 2001 for misconduct related to a civil action
commenced later than December, 1999. Burton v. Mot-
tolese, 267 Conn. 1, 3, 835 A.2d 98 (2003), cert. denied,
541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004).
In January, 2004, the Statewide Grievance Committee
filed a presentment against Nancy Burton for miscon-
duct that occurred in 1995. Id. Burton filed a motion
to dismiss the presentment claiming that the trial court
lacked subject matter jurisdiction because she was no
longer a member of the bar. Statewide Grievance Com-
mittee v. Burton, supra, 88 Conn. App. 524. The trial
court agreed and dismissed the presentment. The State-
wide Grievance Committee filed an appeal to this court,
which reversed the judgment of dismissal, concluding
that the issue of Burton’s alleged 1995 misconduct was
justiciable in that an adjudication of the presentment
would provide both actual and practical relief to the
parties. Id., 531. This court’s reasoning in Burton
informs our analysis in this case.
The Burton presentment ‘‘concerns an incident that
occurred in 1995, alleging misconduct that occurred
before [Burton] was disbarred. [General Statutes § 51-
90e] and Practice Book § 2-47 concern the misconduct
of attorneys. [E]ach disciplinary action must be decided
on its own particular facts in order to determine the
appropriate discipline. . . . We therefore conclude
that the court can adjudicate the 1995 incident to deter-
mine whether [Burton’s] alleged conduct was, in fact,
misconduct. That determination can be made irrespec-
tive of [Burton’s] current status.’’ (Citations omitted;
internal quotation marks omitted.) Id., 529–30.
A comprehensive disciplinary scheme exists ‘‘to safe-
guard the administration of justice, and [is] designed
to preserve public confidence in the system and to
protect the public and the court from unfit prac-
titioners.’’ (Internal quotation marks omitted.) Id., 530.
‘‘An attorney, as an officer of the court in the administra-
tion 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 responsi-
bilities and obligations of an attorney, his right to con-
tinue 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 adminis-
tration 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 functions of the legal profession.’’ (Internal
quotation marks omitted.) Id., 530–31.
In Burton, this court noted that a person who has
been disbarred has the right to apply for readmission
pursuant to Practice Book § 2-53 and that the Superior
Court may reinstate, as an attorney-at-law, a person
who has been disbarred. Id., 531. Under the terms of
Burton’s disbarment, she had the right to apply for
readmission after five years. ‘‘The appropriate inquiry
when deciding whether to grant admission to the bar
is whether the applicant has present fitness to practice
law. . . . Fitness to practice law does not remain fixed
in time.’’ (Emphasis in original; internal quotation marks
omitted.) Id.
In Burton, this court concluded that there was a
practical benefit to both Burton and the Statewide
Grievance Committee to resolve the matter concerning
the 1995 conduct sooner, rather than later. Id. ‘‘A resolu-
tion of the controversy also will benefit the courts and
the public, the third party beneficiaries of our attorney
disciplinary system. If, and when, [Burton] seeks to
apply for readmission to the bar, [her] record before
the bar admission committee will be more complete if
this matter is adjudicated. The issue to be decided is
whether [Burton’s] conduct with respect to the 1995
incident violates our code of professional conduct.
‘‘With respect to [Burton], we foresee a possible
impediment to her applying for readmission to the bar
if the 1995 incident remains unresolved. We cannot
anticipate how the absence of a decision will be consid-
ered by the bar examining committee that would review
[her] application for readmission. Alternatively, if [Bur-
ton] is readmitted to the bar, will she immediately be
faced with a presentment related to the 1995 incident?’’
Id., 531–32. Moreover, the Superior Court is not limited
to suspending or disbarring an attorney from the prac-
tice of law. Id., 532. ‘‘Practice Book § 2-47 (a) does not
limit the Superior Court to those two forms of disci-
pline, as it may impose ‘such other discipline as the
court deems appropriate.’ ’’ Id.
For the same reasons, the court here had jurisdiction
to adjudicate the defendant’s presentment, despite the
fact that he voluntarily had resigned from the bar.
Although the defendant had resigned, there was no find-
ing by the court as to the presentment allegations of
misappropriation and what discipline, if any, should be
imposed. Practice Book § 2-47 (b) provides: ‘‘The sole
issue to be determined in a disciplinary proceeding
predicated upon conviction of a felony, any larceny or
crime for which the lawyer is sentenced to a term of
incarceration or for which a suspended period of incar-
ceration is imposed shall be the extent of the final
discipline to be imposed.’’
In the trial court and in this court, the defendant
stated that he had lived his life as an attorney and
wanted to die as an attorney. Given his age, the defen-
dant asked that he be permitted to apply for readmission
to the bar sooner rather than later.11 Without an adjudi-
cation of the allegations of the presentment now, the
defendant may have had to face a similar presentment
if he ever were to apply for readmission to the bar. As
in Burton, it was to the benefit of the parties, as well
as the court, to resolve the matter now.
For the foregoing reasons, we conclude that the court
had jurisdiction to adjudicate the presentment and to
impose discipline after it accepted the defendant’s resig-
nation from the bar.
II
The defendant’s second claim is that the court denied
him due process of law by imposing discipline beyond
that contained in his letter of resignation. We disagree.
‘‘Procedural due process is a required constitutional
right adhering to those attorneys who are subject to
disciplinary actions so that they are not unjustly
deprived of their reputations or livelihoods. . . . A
defendant attorney is entitled to notice of the charges
and a fair hearing.’’ (Citation omitted.) Statewide Griev-
ance Committee v. Gifford, 76 Conn. App. 454, 461, 820
A.2d 309 (2003).
In this case, the court held a hearing on the applica-
tion for an order of interim suspension of the defen-
dant’s license to practice law. Thereafter, pursuant to
the plaintiff’s request, the application was amended to
a presentment. The defendant did not object to the
presentment, but chose to resign from the bar. Immedi-
ately after accepting the defendant’s resignation, the
court stated that it would retain jurisdiction to deter-
mine the discipline to be imposed. The court afforded
the defendant the opportunity to brief the question of
its jurisdiction and a hearing. The court also provided
the defendant with an opportunity to present evidence
related to mitigating factors to consider regarding dis-
cipline.
The defendant predicates his claim on the 2013
amendments to Practice Book (2013) § 2-52, particu-
larly the addition of subsection (e), which provides:
‘‘Acceptance by the court of an attorney’s resignation
from the bar without the waiver of right to apply for
readmission to the bar at any time in the future shall
not be a bar to any other disciplinary proceedings based
on conduct occurring before or after the acceptance of
the attorney’s resignation.’’ The defendant argues that
subsection (e) broadens the power of the trial court
to impose new disciplinary sanctions on a resigning
attorney after the court accepts the resignation. That
language, the defendant argues, is substantive in nature
and may be applied prospectively only. We disagree
with the defendant’s claim, as the sanction imposed
by the court was imposed pursuant to the misconduct
alleged in the presentment complaint; see Practice
Book § 2-47 (d); about which the defendant had fair
notice and a hearing. See Statewide Grievance Com-
mittee v. Botwick, supra, 226 Conn. 308.
We agree that an attorney against whom misconduct
is alleged in a presentment has the option to resign
from the bar. See Practice Book § 2-52. The resignation
from the bar, however, does not terminate the present-
ment proceeding in its entirety. It only terminates a
part of the process by sparing the attorney from a trial
as to the misconduct alleged in the presentment. The
court is endowed with authority to impose discipline
pursuant to Practice Book § 2-47 (d).
Our case law holds that an attorney faced with allega-
tions of misconduct is entitled to notice and a hearing.
See In the Matter of Presnick, supra, 19 Conn. App.
349. The application for an order of interim suspension
and subsequent presentment gave the defendant notice
of the allegations of misconduct against him. Our review
of the transcript of the proceedings before the court
indicate that the court afforded the defendant a hearing
on multiple occasions, the opportunity to brief his legal
claims, the opportunity to present evidence, and the
opportunity to argue to the court. The defendant
received the due process to which he was entitled, and
his claim therefore fails.12
III
The defendant’s last claim is that the discipline
imposed by the court is unfair and unreasonable. We
do not agree.
‘‘As long as there is no denial of due process, we
conclude that this court may, for good cause, discipline
attorneys who practice before it by suspending them
from practice in this court for a reasonable and stated
period.’’ In the Matter of Presnick, supra, 19 Conn. App.
349. The substance of the plaintiff’s claim is that given
his age, a twelve year prohibition against applying for
readmission to the bar, may constitute permanent dis-
barment, which is contrary to our law. ‘‘Connecticut
does not acknowledge permanent disbarment. Perma-
nent does not mean forever. [D]isbarment is not punish-
ment for a crime, but, rather the withdrawal of a
privilege . . . .’’ (Internal quotation marks omitted.) In
re Application of Avcollie, 43 Conn. Supp. 13, 20, 637
A.2d 409 (1993).
We acknowledge the legal precept cited by the defen-
dant, but the fact that he was seventy-five years old
when the court imposed discipline in May, 2013, is not
relevant to our review of the court’s exercise of discre-
tion in imposing a term of twelve years before the defen-
dant may apply for readmission to the bar. The relevant
facts are the defendant’s misconduct.13 The court was
presented with evidence of gross and unconscionable
misconduct on the part of the defendant with respect
to the funds of two of his clients. The defendant admit-
ted to misappropriating approximately $800,000 of a
client’s funds, although he claimed that the sum was
much less. He failed to cooperate with the Statewide
Grievance Committee’s audit of his trustee accounts.
In a criminal proceeding in Stamford, he was convicted
of larceny in the first degree for the misappropriation
of $800,000 and given a suspended sentence of five years
imprisonment. Thereafter, the defendant was arrested
following a hearing that there was probable cause that
he had misappropriated approximately $175,000 from
a second client.14 After finding that the defendant had
misappropriated almost $1 million from two clients, the
court found that he caused substantial injury to his
clients and poses a substantial threat of harm to any
prospective client. Moreover, accepting the premise of
the defendant’s argument would produce absurd
results. Pursuant to the defendant’s logic, a ninety year
old lawyer who stole similar amounts would deserve
only a slap on the wrist. The proposition that older
lawyers who steal from their clients should be rewarded
for the length of their membership in the bar is dubious,
to say the least. On the basis of the evidence and the
court’s findings, we cannot conclude that the court
abused its discretion by ordering that the defendant
may not apply for readmission to the bar for a period
of twelve years from April 29, 2013. We also cannot
conclude that the discipline is unfair and unreasonable
given the defendant’s age.15
IV
Our review of the trial court file discloses that it
states that the case was disposed of on November 21,
2012, and that a final judgment was rendered on that
date. See footnote 8 of this opinion. There are clerical
errors in the record as to when final judgment was
rendered and the case disposed of. Pursuant to our
supervisory powers; see Practice Book § 60-2; we direct
the court to order a rectification of those clerical errors
in the trial court file so that the file conforms to the
facts and the law.
The judgment is affirmed and the case is remanded
with direction to order a rectification of the trial court
record in accordance with this opinion.
In this opinion the other judges concurred.
1
Practice Book § 2-42 provides in relevant part: ‘‘(a) If there is a disciplin-
ary proceeding pending against a lawyer . . . and the grievance panel, the
reviewing committee, the statewide grievance committee or the disciplinary
counsel believes that the lawyer poses a substantial threat of irreparable
harm to his or her clients or to prospective clients . . . the panel or commit-
tee shall so advise the disciplinary counsel. The disciplinary counsel shall,
upon being so advised or upon his or her own belief, apply to the court for
an order of interim suspension. The disciplinary counsel shall provide the
lawyer with notice that an application for interim suspension has been filed
and that a hearing will be held on such application.
‘‘(b) The court, after hearing, pending final disposition of the disciplinary
proceeding, may, if it finds that the lawyer poses a substantial threat of
irreparable harm to his or her clients or to prospective clients, enter an
order of interim suspension, or may order such other interim action as
deemed appropriate. Thereafter, upon good cause shown, the court may,
in the interest of justice, set aside or modify the interim suspension or other
order entered pursuant hereto. . . .’’
2
The defendant refused to comply with the Statewide Grievance Commit-
tee’s request for information pertaining to his trust accounts. The plaintiff
filed a motion for contempt to which the defendant objected on the basis
of the constitutional privilege against self-incrimination. On March 21, 2012,
the court overruled the defendant’s objection and ordered him to produce
the documents necessary to conduct the audit. The defendant filed a notice
of intent to appeal the court’s ruling on April 4, 2012, and a motion for stay
of the court’s order relative to the trust accounting. The court denied the
defendant’s motion for stay on June 5, 2012. See Practice Book § 61-11 (b)
(attorney disciplinary orders are not automatically stayed during appeal).
3
Practice Book § 2-40 (a) provides in relevant part: ‘‘The clerk of the
superior court location in this state in which an attorney is convicted of a
serious crime as defined herein shall transmit, immediately upon the imposi-
tion of sentence, a certificate of the conviction to the disciplinary counsel
and to the statewide grievance committee. The attorney shall also notify
the disciplinary counsel in writing of his or her conviction. The disciplinary
counsel or designee shall, pursuant to Section 2-47, file a presentment against
the attorney predicated upon the conviction. . . . The filing of a present-
ment shall be discretionary with the disciplinary counsel where the offense
for which the attorney has been convicted carries a maximum penalty of a
period of incarceration of one year or less.’’
4
Practice Book § 2-47 provides in relevant part: ‘‘(a) Presentment of attor-
neys for misconduct, whether or not the misconduct occurred in the actual
presence of the court, shall be made by written complaint of the disciplinary
counsel. Service of the complaint shall be made as in civil actions. . . . [A]
hearing on the merits of the complaint shall be held within sixty days of
the date the complaint was filed with the court. At such hearing, the respon-
dent shall have the right to be heard in his or her own defense and by
witnesses and counsel. After such hearing the court shall render a judgment
dismissing the complaint or imposing discipline as follows: reprimand, sus-
pension for a period of time, disbarment or such other discipline as the
court deems appropriate. This may include conditions to be fulfilled by the
attorney before he or she may apply for readmission or reinstatement. . . .
‘‘(b) The sole issue to be determined in a disciplinary proceeding predi-
cated upon conviction of a felony, any larceny or crime for which the lawyer
is sentenced to a term of incarceration or for which a suspended period
of incarceration is imposed shall be the extent of the final discipline to
be imposed.’’
5
On April 11, 2012, in the judicial district of Stamford, the defendant
pleaded guilty to the charge of larceny in the first degree in violation of
General Statutes § 53a-122 (a) (2). He was given a suspended sentence of
five years imprisonment.
6
The defendant’s letter was addressed to the Superior Court for the judicial
district of New Haven and stated: ‘‘In accordance with the provisions of
Superior Court Rule § 2-52 I do hereby submit my resignation as an attorney
admitted to the Connecticut Bar. This action supersedes my letter dated
April 11, 2012.’’ We are unable to find in the record the April 11, 2012 letter
to which the defendant referred.
7
In its May 8, 2013 order the court stated: ‘‘On November 21, 2012 the
court accepted the [defendant’s] resignation from the practice of law. The
[plaintiff] requested the [defendant] be prohibited from applying for rein-
statement to the Connecticut [b]ar for a period of twelve years. The [defen-
dant] argues this court has no jurisdiction over his applying for reinstatement
and therefore no time limit should be imposed. The [defendant] is [seventy-
five] years old.
‘‘This court does have jurisdiction over this matter. By way of background
the [defendant] admitted the misappropriation of [a] client[’s] funds in the
approximate amount of $800,000. He entered a guilty plea to larceny in the
first degree in Stamford Superior Court in 2012. He was not sentenced to
prison. He received a suspended sentence.
‘‘Subsequent to his conviction in Stamford, he was arrested for misappro-
priating $175,000 from another client. This larceny in the first degree charge
is currently pending against the [defendant] in Milford Superior Court.
‘‘[The defendant] is a convicted felon who stole approximately $800,000
from a client in Stamford. There has been a probable cause finding that he
stole another $175,000 from a client in Milford.
‘‘He has intentionally misappropriated substantial amounts of his clients’
funds for his own purposes. He has caused substantial injury to his clients.
He is very fortunate, as of now, not to be incarcerated. He poses a substantial
threat of harm to any prospective client.
‘‘The [defendant] is not eligible to apply for readmission to the Connecticut
[b]ar for a period of twelve years from April 29, 2013. He will be subject to
the imposition of such conditions upon his application for reinstatement as
may be deemed appropriate at that time.’’
8
Subsequent to the November 21, 2012 proceeding during which the court
accepted the defendant’s resignation, the clerk’s office issued the following
order. ‘‘After hearing had, and in accordance with Practice Book § 2-52, I
hereby find that Benson A. Snaider, Juris No. 371721, has knowingly and
voluntarily resigned from the bar of the State of Connecticut. I hereby accept
his resignation.
‘‘The court hereby retains jurisdiction concerning this matter.’’
The defendant attempts to bolster his final judgment argument by pointing
out that on November 21, 2012, after the court accepted his unconditioned
resignation, a notice from the court issued on a preprinted form entitled
‘‘FINAL JUDGMENT.’’ The notice states, in part: ‘‘Judgment without trial
for . . . Other (JWT).’’ The notice indicates that it was sent to counsel on
‘‘12/21/12.’’
Our review of the electronic file indicates that the signature at the bottom
of the page entitled Final Judgment is illegible and none of the boxes
indicating who signed the form is checked, i.e., assistant clerk, court officer,
caseflow coordinator. See part IV of this opinion.
9
Practice Book (2012) § 2-52 entitled ‘‘Resignation of Attorney,’’ provides
in relevant part: ‘‘(a) The superior court may, under the procedure provided
herein, permit the resignation of an attorney whose conduct is the subject
of investigation by a grievance panel, a reviewing committee or the statewide
grievance committee or against whom a presentment for misconduct under
Section 2-47 is pending.
‘‘(b) Such resignation shall be in writing signed by the attorney, and filed
. . . with the clerk of the superior court in the judicial district in which the
attorney resides . . . . Such resignation shall not become effective until
accepted by the court after a hearing following a report by the statewide
grievance committee, whether or not the attorney seeking to resign shall,
in the resignation, waive the privilege of applying for readmission to the
bar at any future time.’’
10
The defendant also seeks to strengthen his argument by referring to
the 2013 amendment to § 2-52, specifically the addition of Practice Book
(2013) § 2-52 (e), which provides in relevant part: ‘‘Acceptance by the court
of an attorney’s resignation from the bar without the waiver of the right to
apply for readmission to the bar at any time in the future shall not be a bar
to any other disciplinary proceedings based on conduct occurring before
or after the acceptance of the attorney’s resignation.’’
In response to this argument, the plaintiff contends that the additional
language does not change the court’s ability to impose sanctions on an
attorney who has resigned from the bar in 2012. The plaintiff draws our
attention to the official commentary to Practice Book (2013) § 2-52 (e),
which provides in relevant part: ‘‘The amendments . . . require the court
to make a finding of misconduct before it can accept the resignation. This
amendment is necessary to assure that lawyers who resign and waive here
in Connecticut will be subject to a finding of misconduct, which will be
useful to disciplinary authorities in other jurisdictions where the attorney
is admitted or may seek admission. Currently, some states do not consider
a resignation and waiver without a finding of misconduct as the imposition
of discipline. As a result, attorneys who have resigned and waived here in
the face of allegations of very serious misconduct have been allowed to
retain their licenses in other states, such as New York.’’
11
During argument to the trial court on April 29, 2013, counsel for the
defendant stated: ‘‘[The defendant] would like to be able to call himself a
lawyer at some point before he dies . . . .’’
12
The defendant’s jurisdictional argument appears rooted in his dissatis-
faction with the court’s prohibiting him from applying for readmission to
the bar for a period of twelve years. The defendant seems to argue that he
exercised the option to resign from the bar and that is discipline enough.
The record suggests that the defendant first was willing to resign from the
bar with the option to apply for readmission after five years. After the
plaintiff opposed the brevity of five years and argued for a period of twelve
years before the defendant could apply for readmission, the defendant with-
drew his offer to resign and submitted a letter of resignation from the bar
without conditions. The defendant also had been arrested and charged with
larceny in the first degree with respect to the misappropriation of the funds
of a second client. Following his resignation from the bar, in addition to
claiming that the court lacked jurisdiction over him to impose discipline,
the defendant asked, due to his age, that the court order that he be permitted
to apply for readmission to the bar after five years. The defendant’s real
concern therefore appears to have been, not the court’s jurisdiction, but
the length of the discipline the court could impose.
13
The American Bar Association has promulgated standards for the impo-
sition of sanctions. See Burton v. Mottolese, supra, 267 Conn. 55. ‘‘[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 aggravat-
ing or mitigating factors. A.B.A Standards for Imposing Lawyer Sanctions
(1986) standard 3.0, p. 25 . . . .’’ Burton v. Mottolese, supra, 55.
The aggravating factors include: ‘‘(a) prior disciplinary offenses; (b) dis-
honest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary agency; (f) submis-
sion of false evidence, false statements, or other deceptive practices during
the disciplinary process; (g) refusal to acknowledge wrongful nature of
conduct; (h) vulnerability of victim; (i) substantial experience in the practice
of law; [and] (j) indifference to making restitution.’’ (Internal quotation
marks omitted.) Id.
The mitigating 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 restitution 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 disciplinary proceedings; (j) interim rehabilitation;
(k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remote-
ness of prior offenses.’’ (Internal quotation marks omitted.) Id., 55–56.
14
At the time of oral argument in this court, counsel for the defendant
represented that the defendant was incarcerated. The defendant pleaded
guilty to larceny in the first degree in violation of General Statutes § 53a-
122 (a) (2), and was sentenced to a term of eight years imprisonment,
execution suspended after two years, and five years of probation. This court
may take judicial notice of a case involving the same parties. See, e.g., State
v. Bunkley, 202 Conn. 629, 648, 522 A.2d 795 (1987).
15
The defendant has asked this court to consider his representation that
he practiced law for fifty years without discipline and was an attorney trial
referee. His plea is unavailing and unwarranted in that it is he who chose
to take his clients’ funds near the end of his legal career, which resulted in
ending his professional life in disrepute. Moreover, substantial legal experi-
ence is an aggravating, not a mitigating, factor to be considered. See footnote
13 of this opinion.