Professional Responsibility Review 2009
| Publication year | 2021 |
| Pages | 227 |
84 CBJ 227. PROFESSIONAL RESPONSIBILITY REVIEW 2009
Volume 84, No. 3, Pg. 227
September 2010
Connecticut professionalism and ethics law develops in four general areas: case law; attorney regulatory decisions and advisory opinions; bar associations' formal and informal opinions; and changes to the rules of ethics. This article discusses recent developments in three of those areas of law in Connecticut because there were no significant changes to the ethics rules in 2009. The Case Law Developments are relatively insignificant, but a few cases decided by the Connecticut Appellate Court and the Superior Court are discussed. The Statewide Grievance Committee section provides a statistical analysis of the published disciplinary decisions, as well as a discussion of the common professional pitfalls. For example, trends in the profession have remained relatively static in that communications and diligence are the front-runners of attorney disciplinary matters. The Ethics Opinions Summaries section highlights the five Informal Opinions issued by the Connecticut Bar Standing Committee on Professional Ethics. Finally in the section entitled Looking Forward from 2009, this article addresses the impact that competition, the internet, and the pace of the practice have brought about, including outsourcing of legal support, unbundling of legal services, borderless and international legal practices, cloud computing and virtual law practices. Each of these changes challenges the traditional law practice model.
A. On Appeal
In 2009, the Supreme Court did not issue any noteworthy decisions addressing issues of professionalism and ethics while the Appellate Court issued just three decisions in these areas. In Peatie v. Wal-Mart Stores,(fn1) legal counsel came dangerously close to a violation of Rule 8.2 by raising an unsub- stantiated claim of judicial bias.(fn2) Juxtaposed to Peatie was Goulet v. Zoning Board of Appeals of Cheshire,(fn3) where the Appellate Court commended counsel for adhering to the duty of candor pursuant to Rule 3.3.(fn4) In the reply brief, legal counsel for the appellant had taken a position based on a version of a zoning regulation not applicable to the case.(fn5) After oral argument, counsel moved for permission to supplement its appendix with the correct regulation which, in fact, was counter to the position set forth in the reply brief.(fn6) This case serves as a prime example of a lawyer acknowledging his duty of candor to the court and addressing the error appropriately. Not only did the attorney bring the error to the court's attention, he did so where the error worked to his detriment.
Although the unauthorized practice of law is discussed generally, infra, in the section entitled Looking Forward from 2009, the Appellate Court, in Ellis v. Cohen,(fn7) construed General Statutes Section 51-88,(fn8) the governing statute on the unauthorized practice of law.(fn9) In a wrongful death action, the estate was represented by three successive attorneys until the co-executor, a non-lawyer, sought to enter a pro se appearance in his fiduciary capacity. The Appellate Court concluded that a fiduciary-in this case, the co-executor-does not act in "his own cause" as required under Section 51-88.(fn10) As a result, the Court held that a pro se appearance by a fiduciary for an estate constituted the unauthorized practice of law.(fn11)
B. Superior Court Cases
The relevant Superior Court decisions in 2009 addressed sanctions against legal counsel, motions to disqualify, claims of obstruction of evidence, the authority of the probate court to discipline legal counsel, and due process in disciplinary matters, all of which are frequently raised in the trial court.
The imposition of civil sanctions and a motion to disqualify an attorney arose in Faile v. Zarich.(fn12) The plaintiffs alleged that defense counsel's conduct at depositions violated a prior order of the court, the rules of practice, and the Rules of Professional Conduct, including Rules 3.4(1), (3), (4), (6), and 8.4(4).(fn13) The court concluded that defense counsel's unlawful obstruction of the plaintiff's access to evidence was a violation of the Rule 3.4(1) and (3).(fn14) The court found that defense counsel knowingly violated a clear order and Practice Book Section 13-30(fn15) based upon her repeated conduct.(fn16) While not addressed in the decision, it is a well established principle of law in Connecticut that a court order must be complied with until it is successfully challenged.(fn17) The court denied a motion to disqualify the same defense counsel because "defense counsel's overzealous advocacy should not cost her clients their choice of counsel."(fn18) The court, however, imposed monetary sanctions, ordering defense counsel, and not the client, to pay the sanction.(fn19)
Three months later, in Faile v. Zarich,(fn20) in a motion for reargument/reconsideration, defense counsel challenged the trial court's earlier finding of misconduct. Although the court dismissed each claim regarding the rule violations,(fn21) the discussion regarding due process is remarkable. Essentially, due process requires notice and a meaningful opportunity to be heard.(fn22) The court concluded that defense counsel's due process rights had been protected and that she had notice of the issue because the defense counsel had personally presented arguments to the court in opposition to the claims of impropriety made by the plaintiff.(fn23)
The motion to disqualify continues to be a frequently used pleading in the trial court.(fn24) In Neumann v. Tuccio(fn25) the court addressed Rule 3.7(fn26) in holding the trial lawyer, but not the law firm, was disqualified. The trial court found no conflicts as to the law firm under Rules 1.7,(fn27) 1.9,(fn28) or 3.7(b).(fn29)
The Superior Court, in Sherlock-White v. Probate Appeal,(fn30) ruled on a novel question in Connecticut regarding the authority of the probate court to discipline an attorney. Procedural nuances aside,(fn31) the court held that the probate court likely had the authority to discipline an attorney.(fn32) Applying the rationale of Fairfield County Bar v. Taylor, which held that only the Superior Court has the power to admit attorneys to the practice of law and hence the power of "total suspension or displacement,"(fn33) the court stated "[a]ny other court than the Superior Court may fine an attorney for transgressing its rules and doubtless has the power to forbid him from appearing before it."(fn34) The Superior Court further held that an attorney subject to sanction or discipline by the probate court must be accorded due process.(fn35)
The question for the court in Chief Disciplinary Counsel v. Cohen(fn36) was: what process was due? A three member reviewing committee was scheduled to hear the disciplinary case.(fn37) One of the three members, an attorney, was ill and unable to attend the hearing.(fn38) The parties waived her appearance, requiring the remaining two members, an attorney and a lay person, to render a decision.(fn39) The two members, however, could not reach a decision.(fn40) With notice and no objection by the parties, the non-appearing committee member reviewed the record and transcripts of the hearing.(fn41) In a two to one decision, the committee ordered the Respondent be presented to the Superior Court for discipline.(fn42)
The lawyer filed a motion to dismiss, alleging that he was deprived of due process because the deciding vote was cast by the absentee member who was unable to assess the credibility of the witnesses.(fn43) The court rejected the due process claim, following Lewis v. Statewide Grievance Committee.(fn44) In Lewis, the Supreme Court specifically stated that even if the plaintiff's credibility had been at issue, "due process requires no more than the presence of two of the three reviewing committee members" at the hearing.(fn45)
The presentment in Disciplinary Counsel v. Smigelski(fn46) arose after a finding that the attorney violated Rule of Professional Conduct 1.5 by charging an unreasonable fee, and Rule 1.15(b)(fn47) by distributing funds to himself from the proceeds of the sale of estate assets and refusing to refund the funds when agents of the estate made a demand.(fn48) its finding that the applicant's presentation "underscored that [he] lacks an understanding of the severity, or indeed, the existence of the violations which led to his disbarment."(fn50)
Once suspended or disbarred, former lawyers who seek reinstatement must demonstrate a "present fitness to practice." In Statewide Grievance Committee v. Friedland,(fn49) the Superior Court denied an application for readmission based, in part, on
Any person may file a grievance complaint against an attor-ney.(fn51) The complaint is generally referred to a grievance panel, which, upon consideration of the complaint and the attorney's response to that complaint, may either dismiss the matter or make a finding that probable cause exists that the attorney is guilty of misconduct.(fn52) In the event of a probable cause determination, the matter is scheduled for a public hearing before a reviewing committee.(fn53) The reviewing committee consists of at least three members of the statewide grievance committee.(fn54) The committee either makes a finding of misconduct or dismisses the matter. If there is misconduct, the committee may issue sanctions or recommend presentment.(fn55) The committee's decisions are published on the Connecticut Judicial Branch website.(fn56) The following discussion is derived from a review of the committee's published decisions.
A. Statistical Analysis
In 2009, there were fifty-five reported grievance...
To continue reading
Request your trial