DocketNumber: AC 22762
Citation Numbers: 76 Conn. App. 454
Judges: Dupont
Filed Date: 4/29/2003
Status: Precedential
Modified Date: 9/8/2022
Opinion
The defendant, Richard W. Gifford, appeals from the judgment of the trial court suspending him from the practice of law for a period of one year. On appeal, he claims that (1) the court lacked subject matter jurisdiction, (2) his procedural due process rights were violated and (3) the court improperly concluded that he had violated rules 1.3, 1.4 and 1.5 of the Rules of Professional Conduct.
In June, 1993, the defendant filed an action on behalf of Weichman in the United States District Court for the District of Connecticut at Bridgeport. Thereafter, in December, 1993, the defendant attended Travelers’ deposition of Weichman. The defendant did not file a trial memorandum as ordered by the District Court and did not respond to Travelers’ motion to dismiss, which was based on the defendant’s failure to comply with the order. Thus, on June 15, 1994, the District Court granted Travelers’ motion and dismissed the case.
Throughout this period, from June, 1993, until the case was dismissed one year later, the defendant did not inform Weichman of the developments in, or status of, her case, which she repeatedly inquired about through telephone calls and letters. After five years of waiting to hear from the defendant, Weichman filed a complaint with the plaintiff, the statewide grievance committee (grievance committee), in April, 1999. In accordance with Practice Book § 2-32, the grievance committee forwarded the complaint to the defendant for his response. The defendant never responded. On July 25, 2000, the grievance committee presented the defendant for misconduct not occurring in the presence of the court.
The presentment essentially contained three charges: The failure to communicate with a client and to repre
Subsequently, on April 18,2001, the court held a hearing on the presentment. The defendant was not present at the hearing and had no notice that a hearing would take place on that day.
Following the hearing, by letter dated September 6, 2001, the grievance committee’s attorney inquired with the court as to the status of the grievance against the
Thereafter, notice of a status conference and a second evidentiary hearing was sent to both parties. At the November 8, 2001, status conference, the defendant waived his right to cross-examine Weichman.
I
JURISDICTION
The defendant’s first claim on appeal is that the court did not have subject matter jurisdiction. He argues that because Weichman’s case was in federal court, the federal court had exclusive jurisdiction over any miscon
The resolution of the defendant’s first claim requires an interpretation of rule 8.5 of the Rules of Professional Conduct, which provides: “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.”
In rendering our interpretation of rule 8.5, we note that “the rules regulating attorney grievance procedures exist within the broader framework of the relationship between attorneys and the judiciary. The practice of law is ... a profession the main purpose of which is to aid in the doing of justice .... 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. . . . This unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline.” (Emphasis added; internal quotation marks omitted.) Doe v. Statewide Grievance Committee, 240 Conn. 671, 677, 694 A.2d 1218 (1997); see also Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 237-38, 558 A.2d 986 (1989).
Although we could find no Connecticut appellate case interpreting rule 8.5, the broad supervisory role of the judiciary in governing attorney conduct causes us to conclude that the plain language of the rule subjects the defendant, a licensed Connecticut attorney, to discipline by Connecticut courts for his actions in federal District Court.
We therefore conclude that the court had subject matter jurisdiction of the defendant’s presentment.
II
NOTICE
The defendant next claims that his procedural due process rights were violated because the court heard testimony of the complaining witness at the hearing held April 18, 2001, without notice to, or the presence of, the defendant. The grievance committee argues that because the defendant did not preserve this due process claim, we should not afford it review. Alternatively, the grievance committee argues that the court’s holding of a second hearing on November 16, 2001, and the defendant’s waiver of his right to cross-examine the
An unpreserved claim is reviewable under Golding if the claim is constitutional in nature and if there is an adequate record for review. State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). Here, the record is adequate for review, and the claim is a constitutional one. It is undisputed that the defendant had no notice of the hearing held on April 18, 2001.
Attorney disciplinary proceedings are adversary and quasi-criminal in nature, and, as such, the subject attorneys are entitled to due process of law. Statewide Grievance Committee v. Botwick, 226 Conn. 299, 306, 627 A.2d 901 (1993). “A license to practice law is a property interest that cannot be suspended without due process.” Id. Procedural due process is a required constitutional right adhering to those attorneys who are subject to disciplinary action so that they are not unjustly deprived of their reputations or livelihoods. Id., 307. A defendant attorney is entitled to notice of the charges and a fair hearing. Kucej v. Statewide Grievance Committee, 239 Conn. 449, 463, 686 A.2d 110 (1996), cert. denied, 520 U.S. 1276, 117 S. Ct. 2457, 138 L. Ed. 2d 214 (1997).
The evidence presented at the April 18, 2001 hearing in the absence of the defendant was the testimony of the complaining witness and the grievance committee’s exhibits. After learning of the hearing and the evidence presented, the defendant did not object to any of the exhibits or to the testimony taken in his absence. In fact, at the November 8, 2001 status conference and the subsequent November 16, 2001 hearing, the defendant specifically declined to conduct a cross-examination of the complaining witness. The defendant was given an opportunity at the second evidentiary hearing to offer any evidence he saw fit. He was given an opportunity to brief the issues and, in fact, did submit a trial brief. The court specifically stated in its memorandum of decision that it considered the evidence from both evidentiary hearings. Therefore, after review, we conclude that the defendant was not deprived of procedural due process.
Ill
RULES OF PROFESSIONAL CONDUCT
The defendant’s final claims on appeal relate to the court’s conclusions that he violated rules 1.3, 1.4 (a) and (b), and 1.5 of the Rules of Professional Conduct. Basically, the findings concern (1) the defendant’s failure to communicate with his client and to represent her diligently, and (2) the defendant’s failure to provide a written fee agreement in a contingency fee case.
The defendant argues that the facts as found by the court do not support a conclusion that he violated any
With respect to the failure to communicate or to represent his client diligently, the defendant argues that because he believed Weichman’s claim was frivolous, he was excused from continuing to work on her case. The defendant argues that in the course of a deposition of his client, he discovered that her testimony was inconsistent with the allegations she had made before the commission on human rights and opportunities. As a result, the defendant did not believe her and discontinued any further work on her case.
The grievance committee argues that regardless of whether the defendant’s beliefs were justified, he still was required to abide by the Rules of Professional Conduct until the attorney-client relationship was terminated and, thus, that the court properly concluded that he had violated each of the relevant rules. We agree with the grievance committee.
Rule 1.3 requires that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The commentary to this rule provides in relevant part: “Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. ...” (Emphasis added.) Thus, the court correctly concluded that the defendant had violated this rule when, after hearing Weichman’s deposition testimony, he completely aban
Additionally, because the defendant had a duty to carry the case through to a conclusion, unless the relationship was terminated, he violated rule 1.4 (a) in failing to communicate with Weichman regarding the status of her case or to respond to her requests for information, and rule 1.4 (b) in failing to explain his concerns with her case and to give her an opportunity to make decisions regarding her representation.
The defendant also argues that rule 11 (b) of the Federal Rules of Civil Procedure
In its memorandum of decision, the court specifically credited Weichman’s testimony that the agreement between her and the defendant was a contingency agreement and that she never had received a written fee agreement. The defendant does not deny these facts, although he argues that Weichman’s testimony did not establish the terms of the agreement. There is no exception within the rule, and the defendant does not cite any law or decision that requires an agreement to be in writing only when the attorney collects or bills a fee. At the time any contingency fee arrangement is initially discussed, it is not then known whether the contingency will occur. A plaintiffs cause may result in a judgment for the defendant, without any payment for legal services ever becoming due. If rule 1.5 (c) applied only when the fee became due, the rule would have no purpose. We conclude that the court correctly concluded that the defendant’s failure to provide a written agreement to his client was a violation of rule 1.5.
In this opinion the other judges concurred.
The court also found that the defendant had violated Practice Book § 2-32 (a) (1) and rule 8.4 (4) of the Rules of Professional Conduct by his failure to answer the grievance complaint. The defendant does not challenge these findings on appeal.
The grievance committee filed an amended complaint on August 10, 2000, and orally amended the complaint on November 16, 2001.
At this time, a case management conference was scheduled for October 6, 2000.
The defendant claimed that the substantive allegations of the presentment arose solely from his representation in federal court and, therefore, only that court could discipline him. In a well reasoned decision, the court held on November 27,2000, that rule 8.5 of the Rules of Professional Conduct specifically gives the state courts of Connecticut jurisdiction over misconduct committed in federal court by an attorney licensed in Connecticut.
Although the defendant had filed responsive pleadings in the case, he did not file an appearance and therefore did not receive notice of the hearing from the court clerk’s office. The grievance committee’s attorney and a court clerk indicated that they had not orally notified the defendant of the hearing.
There is no transcript of the November 8, 2001 status conference. The November 16, 2001 hearing transcript makes clear, however, that the defendant initially waived the right to cross-examine Weichman at the conference.
The defendant moved for a stay of the suspension order on February 13, 2002, because the automatic stay provisions of Practice Book § 61-11 do not apply to attorney grievance actions. The stay was denied, and this court denied relief on March 26, 2002. Although the defendant will have served his one year suspension by the time this opinion is published, the appeal is not rendered moot because of the collateral consequences involved in suspension actions. See Statewide Grievance Committee v. Whitney, 227 Conn. 829, 837-38 n.13, 633 A.2d 296 (1993).
The defendant cites several cases for the proposition that a federal court has exclusive jurisdiction over the actions of attorneys in its court. Contrary to the defendant’s assertions, we read these cases to stand for the proposition that “[t]he two judicial systems of courts, the state judicatures and the
The record indicates that according to the clerical routine, notice is sent to those parties entering an appearance. Because the defendant did not file an appearance, he did not receive notice of the April 18, 2001 hearing. For purposes of this review, we do not consider whether the various pleadings filed by the defendant constituted an appearance. See Practice Book § 3-7 (a).
Rule 11 of the Federal Rules of Civil Procedure provides in relevant part: “(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery .... (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible or the violation. . . .”
We note that the defendant never received any indication that rule 11 sanctions were being considered.
The grievance committee alleged that the defendant had violated rules 1.5 (b) or (c). Because the court specifically found that Weichman and the defendant had a contingency agreement, only subsection (c) applies.
Rule 1.5 (c) provides in relevant part: “Upon conclusion of a contingent, fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”