Professional Responsibility Review 2013
| Citation | Vol. 88 Pg. 73 |
| Pages | 73 |
| Publication year | 2021 |
Kimberly A. Knox and Brendon P. Levesque [*]
"The greatest inequality is to try to make unequal things equal"
Aristotle may or may not have said this, but he surely would have concerning the disparity in sanctions handed down this year. As discussed in more detail below, there needs to be more uniformity in the imposition of sanctions, for if there is not, then the goals of attorney discipline—to educate the lawyer and protect the public—will continue to falter. That being said, like last year there were no landmark cases in Connecticut. It was just another average year in the land of steady habits.
I. Statewide Grievance Committee
A. Statistical Analysis[1]
In 2013 there were 132 decisions issued by reviewing committees of the Statewide Grievance Committee. The decisions stem from either full hearings on the merits or hearings after a conditional admission of misconduct pursuant to Section 2-82 of the Practice Book. Sixty-seven (51%) of the matters were dismissed after a hearing and will not be discussed further. Some form of discipline was imposed in the other sixty-three decisions (49%) that the authors reviewed.[2] Fifty-four percent of the written decisions finding misconduct were after a public hearing on the merits. The other forty-six percent were approved Section 2-82 dispositions, essentially the "settlement" of the grievance process.
-
Discipline Overall
2-82 Dispositions
On the Merits
Presentment
31/63
12/29
19/34
Reprimand + Conditions
4/63
2/29
2/34
Reprimand Only
15/63
7/29
8/34
Conditions Only
13/63
8/29
5/34
Of the sixty-three decisions imposing sanctions, thirty-one resulted in presentments, nineteen resulted in reprimands, and seventeen resulted in some type of conditions.[3] Only four of these decisions resulted in multiple sanctions, in each case a reprimand and condition.
In 2013, nineteen of the thirty-four decisions on the merits resulted in presentments to the Superior Court. Ten resulted in reprimands, including two which also imposed conditions. And the lesser sanction of participation in CLEs was handed out in five other cases.
Of the twenty-nine Section 2-82 matters, twelve resulted in presentments. Nine resulted in reprimands, including two which also imposed conditions. And the lesser sanction of restitution or participation in CLEs was handed out in eight other cases.
B. Interesting Developments
The proper use of an IOLTA account remains an issue. This year, one treatise[4] and the Statewide Grievance Committee have apparently taken the position that a lawyer cannot write a check to a creditor out of an IOLTA account. For the sake of this discussion it is presumed that the money in question has become the property of the lawyer. Although it may be a best practice to transfer the money to the law firm operating account prior to a disbursement, the authors cannot identify any express language in the Rules that requires this conduct. In the authors' opinion, an issue arises only when the money has been in an IOLTA for an unreasonable amount of time, thus raising the specter of a commingling of funds in violation of the Rules.
Another interesting development, one not fully discoverable from the raw number of violations, is the discrepancy between the thirty-eight initial findings of probable cause for Rule 1.3 (Diligence) versus the eighteen actual violations. Thus, only forty-seven percent of probable cause findings resulted in a violation, by far the lowest percentage for any Rule with more than ten findings of initial probable cause. This is perhaps more interesting because Rule 1.3 is frequently paired with Rule 1.4 (Communications) but in forty-six probable cause findings for Rule 1.4 there were thirty-three actual violations, or seventy-two percent.
In the authors' opinion, this disparity between probable cause findings and actual violations is evidence that the system is working. The local panels apply a fairly low standard. The panels need to determine whether there is probable cause that a violation exists.[5] Probable cause has been defined as "a bond fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it."[6] Contrast that with the clear and convincing standard that must be met to find a violation of a Rule:
[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution.... [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.[7]
If both standards are applied correctly, then the local panels should be allowing complaints to proceed that meet the lower burden of proof but which will later be dismissed under the higher burden. It appears that this is happening most often in the context of Rule 1.3, which makes sense given the uniquely wide range of 1.3 complaints, spanning the spectrum from frivolous to meritorious.
The Rule with the second greatest disparity between probable cause findings and actual violations was Rule 1.1, which had fifteen findings of initial probable cause and eight violations, fifty-three percent. By contrast, Rule 8.1 had twenty-three findings of initial probable cause that resulted in twenty violations, or eighty-seven percent. That extremely high percentage proves the authors' point made every year that the failure to file a response or to comply with a lawful request for information will almost guarantee some form of discipline.
Finally, one issue that continues to be of concern is the lack of consistency in the imposition of discipline. This issue is addressed in more detail below but the authors strongly believe that consistency in the imposition of discipline is essential to fulfilling the purpose of protecting the public and educating members of the bar. The system is less effective when one lawyer is suspended for a year for using client's funds to pay a utility bill while another lawyer is reprimanded when the amount of missing client's funds is almost $400,000. At a time when lawyers are not considered to be bastions of trust and integrity, anything that can be done to deter bad behavior should be done well and that means with consistency and predictability.
C. Recurring Professional Issues
In 2013, the following Rules had the highest number of violations: Rule 8.4 (Misconduct) with thirty-seven violations; Rule 1.4 (Communications) with thirty-three violations; Rule 8.1 (Bar Admission and Disciplinary Matters, failing to timely respond) with twenty violations; Rule 1.3 (Diligence) with eighteen violations; and Rule 1.15 (Safekeeping Property) with sixteen violations.
In 2012, the top violations were similar: Rules 8.4, 1.15, 8.1, 1.3, and 1.4. After a two-year spike, there was but one violation of Rule 5.5 in 2013. While there is no empirical data, the decline in UPL claims may stem from the reduction of lawyers participating in debt negotiation and debt consolidation with out-of-state law firms, absent a license from the state department of banking.
1 Rule 8.4 Misconduct
Rule 8.4 violations accounted for twenty percent of all violations in 2013. In one case, an attorney involved in a fee dispute with his client sent an email to the client informing her that he would not appear before the Connecticut Statewide Grievance Committee. The email stated: "[w]hat I will not do is continue to subject myself to the utterly corrupt CT Statewide Grievance Committee."[8] The behavior constituted a violation of Rule 8.4(4) (conduct prejudicial to the administration of justice) and the year's only violation of Rule 8.2(a) (statement made with reckless disregard concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer).[9]
In another case, an attorney failed to provide proper notice of a claim and as a result the client was unable to pursue that claim.[10] Unsurprisingly, the client brought a malpractice action where the client obtained a judgment. The attorney made no attempt to pay on the judgment and ignored post-judgment interrogatories. A copy of the complaint was sent to the attorney's current address by registered mail but was returned unclaimed. It was then sent by regular mail and not returned. The failure to honor a judgment and failure to respond to post-judgment interrogatories constituted a violation of Rule 8.4(4). For failing to respond to the grievance complaint, the attorney was also held to have violated Section 2-32(a)(1) of the Practice Book.
The contrast between the two cases highlights two distinct approaches to Rule 8.4. The authors remain of the opinion that Rule 8.4 is used both too frequently and sometimes improperly. The Committee has discretion to consider the severity of the underlying violation in the absence of a separate violation of Rule 8.4. If there is a clear violation of a specifically enumerated Rule, Rule 8.4 should not be used in the other Rule's stead.
For example, the first attorney's statement that the Statewide Grievance Committee was "utterly corrupt" is a violation of Rule 8.2(a). The addition of a second violation of Rule 8.4(4) for conduct prejudicial to the administration of justice is a way to increase the disciplinary possibilities for the same act. But with the second attorney...
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