Mills v. Statewide Grievance Committee ( 2024 )

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2 ,0 0 Conn. App. 1Mills v. Statewide Grievance Committee
JOHN W. MILLS v. STATEWIDE
GRIEVANCE COMMITTEE
(AC 46606)
Seeley, Westbrook and Sheldon, Js.
Syllabus
The plaintiff attorney appealed from the judgment of the trial court dismiss-
ing his appeal from the decision of the defendant finding that he violated
the Rules of Professional Conduct by failing to act competently in his repre-
sentation of a client and ordering a sanction. He claimed, inter alia, that
the trial court improperly dismissed his appeal because the record did not
provide clear and convincing evidence that he acted incompetently. Held:
The trial court properly determined that clear and convincing evidence
supported the defendant’s finding that the plaintiff had violated rule 1.1 of
the Rules of Professional Conduct when he acted incompetently in filing a
complaint for a client without naming that client’s business as a party.
This court declined to review the plaintiff’s claim that the defendant abused
its discretion by ordering him to complete three hours of continuing legal
education, as the plaintiff raised this claim for the first time on appeal and
failed to assert any arguments or facts demonstrating exceptional circum-
stances that would justify review of his unpreserved claim.
Argued September 6—officially released October 8, 2024
Procedural History
Appeal from the decision of the defendant finding that
the plaintiff’s conduct violated the Rules of Professional
Conduct and ordering a sanction, brought to the Supe-
rior Court in the judicial district of Hartford and tried
to the court, Cobb, J.; judgment dismissing the appeal,
from which the plaintiff appealed to this court.
Affirmed.
Suzanne B. Sutton, for the appellant (plaintiff).
Brian B. Staines, chief disciplinary counsel, for the
appellee (defendant).
Opinion
WESTBROOK, J. The plaintiff attorney, John W. Mills,
appeals from the judgment of the trial court dismissing
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Mills v. Statewide Grievance Committee
his appeal from the decision of the defendant, the State-
wide Grievance Committee (committee). The commit-
tee found that the plaintiff acted incompetently in viola-
tion of rule 1.1 of the Rules of Professional Conduct
by failing to name his client’s business as a party to
her lawsuit and by failing to provide proof of the client’s
individual damages. The plaintiff claims on appeal that
the trial court improperly dismissed his appeal because
(1) the record does not provide clear and convincing
evidence that he acted incompetently in violation of
rule 1.1, and (2) the committee abused its discretion
by ordering him to complete three hours of continuing
legal education. We affirm the judgment of the trial
court.
The record reveals the following relevant facts as
found by a reviewing committee of the Statewide Griev-
ance Committee (reviewing committee). The plaintiff
is an attorney licensed to practice law in Connecticut.
Cristy Lombardi retained the plaintiff to represent her
and her business in an action against her accountant’s
estate. Pursuant to that representation, the plaintiff filed
a complaint on behalf of Lombardi in her individual
capacity. The complaint did not name Lombardi’s busi-
ness as a party to the action. After a trial on the merits,
the court, Abrams, J., issued a memorandum of deci-
sion stating: ‘‘The claims regarding the damage to [Lom-
bardi’s] financial situation fail for a lack of proof. The
court declines to award damages regarding the proven
claims related to economic damages suffered by [Lom-
bardi’s] business because her business is not a party
to the suit.’’ Lombardi subsequently filed a grievance
complaint against the plaintiff with the committee.
On November 4, 2020, the New Haven Judicial District
Grievance Panel found probable cause that the plaintiff
had violated rule 1.1 of the Rules of Professional Con-
duct by failing to act competently in his representation
of Lombardi. The reviewing committee subsequently
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4 ,0 0 Conn. App. 1Mills v. Statewide Grievance Committee
conducted a hearing on the matter. In its March 25, 2022
decision, the reviewing committee found the following
facts by clear and convincing evidence: ‘‘The [plaintiff]
failed to name [Lombardi’s] business, Endless Journeys,
as a [party] in the Superior Court case against the estate.
The [plaintiff] was aware that [Lombardi’s] business
had incurred financial damages, as he had represented
exactly that in correspondence to various individuals
on at least two occasions and prior to [Lombardi’s]
matter going to trial. Additionally, the evidence at trial
referenced [Internal Revenue Service] documents
addressed to [Lombardi’s] business. The decision by
the court, while it awarded $5000 in noneconomic dam-
ages to [Lombardi], declined to award other damages
on the basis that there was no proof [Lombardi] individ-
ually sustained damages. As the decision indicated, the
proof provided was as to [Lombardi’s] business only,
and the business was not a party to the matter.’’
The reviewing committee found that ‘‘[t]he [plain-
tiff’s] conduct in failing to name the business as a party
to the Superior Court matter, as well as failing to provide
proof that would have substantiated [Lombardi’s] claim
of damages in her individual capacity, is a clear violation
of rule 1.1 of the Rules of Professional Conduct.’’ The
reviewing committee ordered the plaintiff ‘‘to take, at
his own expense, three . . . credit hours of continuing
legal education . . . in legal ethics within nine . . .
months of the issuance of this decision.’’ Pursuant to
Practice Book § 2-35 (k),1 the plaintiff requested review
of the reviewing committee’s decision. The committee
thereafter issued a decision affirming the decision of
the reviewing committee.
Practice Book § 2-35 (k) provides in relevant part that, ‘‘[w]ithin thirty
1
days of the issuance to the parties of the final decision by the reviewing
committee, the respondent may submit to the Statewide Grievance Commit-
tee a request for review of the decision. . . .’’
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Mills v. Statewide Grievance Committee
Pursuant to Practice Book § 2-38,2 the plaintiff appealed
from the committee’s determination to the Superior
Court. In its April 27, 2023 memorandum of decision,
the court, Cobb, J., found that clear and convincing
evidence supported the reviewing committee’s findings
and conclusion that the plaintiff violated rule 1.1 of the
Rules of Professional Conduct. The court dismissed the
plaintiff’s appeal. This appeal followed.
I
We first address the plaintiff’s claim that the trial
court improperly dismissed his appeal because the
reviewing committee did not have clear and convincing
evidence that he violated rule 1.1 of the Rules of Profes-
sional Conduct. Specifically, the plaintiff argues that
(1) his failure to name Lombardi’s business as a party
to her litigation does not constitute incompetence and
(2) he could not have acted incompetently because
another attorney in his office was responsible for trying
the case. We disagree.
The reviewing committee’s conclusion that the plain-
tiff acted incompetently is a factual finding. See Cohen
v. Statewide Grievance Committee, 339 Conn. 503, 520,
261 A.3d 722 (2021) (‘‘[t]he reviewing committee’s con-
clusion that the plaintiff made a ‘knowingly false state-
ment’ is a factual finding’’). ‘‘Factual findings of the
reviewing
committee are reviewed under the clearly erroneous
standard.’’ Id. ‘‘Although the [S]tatewide [G]rievance
[C]ommittee is not an administrative agency . . . the
court’s review of its conclusions is similar to the review
afforded to an administrative agency decision.’’ (Cita-
tion omitted.) Weiss v. Statewide Grievance Commit-
tee, 227 Conn. 802, 811, 633 A.2d 282 (1993). ‘‘The burden
2
Practice Book § 2-38 (a) provides in relevant part that ‘‘[a] respondent
may appeal to the Superior Court a decision by the Statewide Grievance
Committee or a reviewing committee imposing sanctions or conditions
against the respondent . . . .’’
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6 ,0 0 Conn. App. 1Mills v. Statewide Grievance Committee
is on the [S]tatewide [G]rievance [C]ommittee to estab-
lish the occurrence of an ethics violation by clear and
convincing proof.’’ (Internal quotation marks omitted.)
Somers v. Statewide Grievance Committee, 245 Conn.
277, 290, 715 A.2d 712 (1998).
‘‘Upon appeal, the court shall not substitute its judg-
ment for that of the Statewide Grievance Committee
or reviewing committee as to the weight of the evidence
on questions of fact. The court shall affirm the decision
of the committee unless the court finds that substantial
rights of the [plaintiff] have been prejudiced because
the committee’s findings, inferences, conclusions, or
decisions are: (1) in violation of constitutional provi-
sions, rules of practice or statutory provisions; (2) in
excess of the authority of the committee; (3) made upon
unlawful procedure; (4) affected by other error of law;
(5) clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or (6)
arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discre-
tion.’’ Practice Book § 2-38 (f). Stated succinctly, in
reviewing a decision of the committee to sanction the
plaintiff, ‘‘our role is limited to reviewing the record to
determine if the facts as found are supported by the
evidence contained within the record and whether the
conclusions that follow are legally and logically cor-
rect.’’ (Internal quotation marks omitted.) Somers v.
Statewide Grievance Committee, supra, 245 Conn. 290.
Rule 1.1 of the Rules of Professional Conduct pro-
vides that ‘‘[a] lawyer shall provide competent represen-
tation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.’’ Commen-
tary to the rule explains that ‘‘[c]ompetent handling of
a particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and
use of methods and procedures meeting the standards
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Mills v. Statewide Grievance Committee
of competent practitioners. It also includes adequate
preparation.’’ Rules of Professional Conduct 1.1, com-
mentary.
Here, the reliable, probative, and substantial evidence
in the record provides clear and convincing evidence
that the plaintiff acted incompetently in violation of
rule 1.1 of the Rules of Professional Conduct. Lombardi
retained the plaintiff to represent both her and her
business, which is a limited liability company. The plain-
tiff, however, failed to inquire into the legal status of
Lombardi’s business and, instead, assumed that Lom-
bardi was doing business as a trade name, and, there-
fore, he did not include the business as a party to the
litigation.
‘‘[A] fictitious or assumed business name, a trade
name, is not a legal entity; rather, it is merely a descrip-
tion of the person or corporation doing business under
that name.’’ America’s Wholesale Lender v. Pagano, 87
Conn. App. 474, 477, 866 A.2d 698 (2005). A limited
liability company, however, ‘‘is a distinct legal entity
whose existence is separate from its members. . . .
[It] has the power to sue or to be sued in its own name
. . . or may be a party to an action brought in its name
by a member or manager. . . . A member or manager,
however, may not sue in an individual capacity to
recover for an injury based on a wrong to the limited
liability company.’’ (Emphasis in original; internal quo-
tation marks omitted.) Bernblum v. Grove Collabora-
tive, LLC, 211 Conn. App. 742, 756, 274 A.3d 165, cert.
denied, 343 Conn. 925, 275 A.3d 626 (2022). The
reviewing committee found that, although ‘‘[v]arious
documents and letters from the [Internal Revenue Ser-
vice] that were submitted into evidence were addressed
to Lombardi Roberts Travel, Inc., d/b/a Endless Jour-
neys,’’ only ‘‘[t]wo documents in evidence . . . refer-
enced [Lombardi] in her individual capacity,’’ thereby
indicating that Lombardi’s business was a separate legal
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8 ,0 0 Conn. App. 1Mills v. Statewide Grievance Committee
entity. Thus, because the plaintiff failed to name Lom-
bardi’s business as a party, the court that heard the
underlying civil action, which found that the business
sustained $2369.22 in economic damages, was unable
to award those damages to Lombardi in her individual
capacity.
The plaintiff does not dispute these facts. Rather, he
argues that rule 1.1 of the Rules of Professional Conduct
did not impose a duty to inquire about the legal status
of Lombardi’s business and that he ‘‘competently filed
the complaint upon information known at the time of
filing.’’ The plaintiff, however, represented Lombardi’s
business and, at the time he filed the complaint, was
aware that Lombardi’s business had incurred financial
damage. Evidence in the record shows that, before the
plaintiff filed the complaint, he sent correspondence
stating that the Internal Revenue Service had levied
and withdrawn money from Lombardi’s business bank
account and that both Lombardi and her business had
incurred damages. Moreover, he wrote in the complaint
that the Internal Revenue Service levied Lombardi’s
personal and business bank accounts as a result of her
failure to file income tax returns and that Lombardi
was entitled to recover economic damages. The plaintiff
therefore had a duty to determine the business’ legal
status and the implications of that status on Lombardi’s
ability to recover economic damages.
Had the plaintiff adequately prepared for litigation,
as required by rule 1.1 of the Rules of Professional
Conduct, he would have learned that the business is
an entity that had to be named as a party for the court
to award the economic damages sought. The fact that
another attorney, rather than the plaintiff, represented
Lombardi and her business at trial does not absolve
the plaintiff of his earlier incompetence in filing the
complaint without adequate preparation. On the basis
of our review of the record, we conclude that the record
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Mills v. Statewide Grievance Committee
fully supports the reviewing committee’s finding that,
by clear and convincing evidence, the plaintiff had vio-
lated rule 1.1.
II
The plaintiff next claims that the trial court improp-
erly dismissed his appeal because the committee
abused its discretion by ordering him to complete three
hours of continuing legal education. He argues that the
court should have (1) made specific findings regarding
aggravating and mitigating factors under the American
Bar Association’s Standards for Imposing Lawyer Sanc-
tions (ABA standards)3 and (2) concluded that no sanc-
tion was appropriate. The committee, however, con-
tends that this claim is not properly preserved for
review because the plaintiff did not raise it before the
3
The plaintiff argues that the trial court should have applied ABA stan-
dards 3.0, 9.22, and 9.32. Standard 3.0 provides: ‘‘In imposing a sanction
after a finding of lawyer misconduct, a court should consider the following
factors: (a) the duty violated; (b) the lawyer’s mental state; (c) the potential
or actual injury caused by the lawyer’s misconduct; and (d) the existence
of aggravating or mitigating factors.’’ A.B.A., Compendium of Professional
Responsibility: Rules and Standards (2017 Ed.), p. 455, standard 3.0. Standard
9.22 provides the following aggravating factors: ‘‘(a) prior disciplinary
offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d)
multiple offenses; (e) bad faith obstruction of the disciplinary proceeding
by intentionally failing to comply with rules or orders of the disciplinary
agency; (f) submission of false evidence, false statements, or other deceptive
practices during the disciplinary process; (g) refusal to acknowledge wrong-
ful nature of conduct; (h) vulnerability of victim; (i) substantial experience
in the practice of law; (j) indifference to making restitution; (k) illegal
conduct, including that involving the use of controlled substances.’’ Id., p.
463, standard 9.22. Standard 9.32 provides the following mitigating factors:
‘‘(a) absence of a prior disciplinary record; (b) absence of a dishonest or
selfish motive; (c) personal or emotional problems; (d) timely good faith
effort to make 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 reputa-
tion; (h) physical disability; (i) mental disability or chemical dependency
including alcoholism or drug abuse . . . (j) delay in disciplinary proceed-
ings; (k) imposition of other penalties or sanctions; (l) remorse; (m) remote-
ness of prior offenses.’’ Id., p. 464, standard 9.32.
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10 ,0 0 Conn. App. 1Mills v. Statewide Grievance Committee
trial court. We agree with the committee and decline
to review the merits of this claim.
Practice Book § 60-5 provides that this ‘‘court shall
not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial.’’
‘‘Only in the most exceptional circumstances will this
court consider a claim that was not raised [before the
trial court]. . . . Such exceptional circumstances may
occur where a new and unforeseen constitutional right
has arisen between the time of trial and appeal or where
the record supports a claim that a litigant has been
deprived of a fundamental constitutional right and a
fair trial. . . . An exception may also be made where
consideration of the question is in the interest of public
welfare or of justice between the parties.’’ (Internal
quotation marks omitted.) Statewide Grievance Com-
mittee v. Egbarin, 61 Conn. App. 445, 452, 767 A.2d
732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).
The record reveals that the plaintiff did not raise
before the trial court the issue of whether the commit-
tee’s sanction was proper. Neither the plaintiff’s com-
plaint nor his written brief in support of his appeal to
the trial court raises this issue. His brief states: ‘‘[The
plaintiff] submits this brief in support of his appeal to
the Superior Court of the decision . . . of the
[reviewing committee] . . . which was affirmed by the
[committee] . . . to the extent that the decision con-
cluded that the [plaintiff] engaged in unethical conduct
in violation of rule 1.1 of the Rules of Professional
Conduct.’’ At the January 24, 2023 hearing before the
trial court, the plaintiff similarly argued that the
reviewing committee’s finding that he violated rule 1.1
was not supported by the record. He did not, however,
argue that the committee’s order to complete three
hours of continuing legal education was an improper
sanction. Moreover, the trial court, in its memorandum
of decision, stated that ‘‘the plaintiff argues only that
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Mills v. Statewide Grievance Committee
the reviewing committee’s decision was clearly errone-
ous in view of the reliable, probative, and substantial
evidence on the whole record.’’ The trial court
addressed the committee’s order only to the extent
that it stated that the ‘‘reviewing committee, therefore,
correctly concluded that the plaintiff’s conduct violated
rule 1.1 and ordered a modest penalty, requiring him
to undergo three hours of continuing legal education.’’
On the basis of our review of the record, it is clear
that the plaintiff is raising this claim for the first time
in this appeal. The plaintiff, however, fails to assert any
arguments or facts demonstrating exceptional circum-
stances that would justify review of this unpreserved
claim. Accordingly, we decline to review the merits
of this claim. See Statewide Grievance Committee v.
Egbarin, supra, 61 Conn. App. 452 (declining to reach
merits of claim that was not raised on appeal to trial
court).
The trial court properly determined that the commit-
tee had clear and convincing evidence that the plaintiff
acted incompetently in violation of rule 1.1 of the Rules
of Professional Conduct.
The judgment is affirmed.
In this opinion the other judges concurred.