Professional Responsibility Review 2017
| Citation | Vol. 92 Pg. 110 |
| Pages | 110 |
| Publication year | 2021 |
By Brendon P. Levesque [*] and Hon. Kimberly A. Knox [**]
As to the public opinion of lawyers, Abraham Lincoln said it best when he said,
There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief---resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.[1]
The authors' review of all the ethics materials for 2017 revealed a few bright spots, notably in the decisions of the Connecticut Supreme and Appellate Courts. Statistically, however, 2017 did not do much to improve the "vague popular belief that lawyers are necessarily dishonest."[2] There were more violations of ethics rules concerning the safekeeping of client's money and failing to obey the rules governing the attorney disciplinary process than there have been in years. Violations of these rules, even by a few lawyers, are troubling and will continue to taint the reputation that lawyers are privileged to enjoy.
In 2017, there was an increase in the number of presentments. There were also a disconcerting number of lawyers who failed to respond to lawful requests for information, failed to respond to grievance complaints, or failed to attend their disciplinary hearings.
I. Case Law Developments
A. Connecticut Supreme and Appellate Courts
In 2017, the Connecticut Supreme Court decided three important ethics cases. The first case upholds a statute of limitations for disciplinary actions. In Disciplinary Counsel v. Elder,[3] a grievance complaint was filed against the defendant-attorney in 2014 for conduct that had occurred in 2004. The Statewide Grievance Committee ("SGC") found that the defendant had violated certain ethical rules for his past conduct.[4] A presentment was brought in the superior court, and the defendant filed a motion to dismiss. The court denied the motion holding that the six-year limitation period in Practice Book § 2-32(a)(2)(E) was discretionary.[5] On appeal, the Supreme Court reversed and held that the six-year limitation period set forth in Practice Book § 2-32(a)(2)(E) is mandatory.[6] The Court reasoned that it could not find a reason for an express period of limitation, which bar counsel and the SGC could have unfettered discretion to ignore.[7]
In the second case, Horner v. Bagnell,[8] the Court clarified an important nuance in rule 1.5(e). The parties were former partners in a law firm partnership.[9] There was a dispute over the entitlement to fees in three contingency fee cases and two hourly fee cases that the defendant continued to work on after the partnership wound up.[10] The plaintiff brought a breach of contract action for the fees on an unjust enrichment theory and the defendant countered that rule 1.5(e) did not permit the division of the fees.[11] The trial court rejected this contention because the fees were based on pre-dissolution time, which was not subject to the rule.[12]
The defendant appealed, claiming that dividing the contingency fees originating with a subsequently dissolved law firm is impermissible under rule 1.5(e).[13] The Court disagreed based on the commentary to rule 1.5(e), which provides that the rule "does not prohibit or regulate divisions of fees to be received in the future for work done when lawyers were previously associated in a law firm."[14] Thus, the award of damages for unjust enrichment was not barred as a matter of law.[15]
Finally, the Supreme Court decided a case where Attorney Rozbicki levelled accusations of judicial bias, prejudice, and impartiality against two judges of the superior court in various motions, memoranda, and even at oral argument in two matters relating to his alleged improper use of an estate he was administering.[16] The SGC ordered a presentment.[17] In the superior court, the Respondent argued that collateral estoppel and res judicata barred the presentment because the conduct underlying the presentment occurred in the presence of two judges and their decisions not to take further action absolved him of any unethical conduct.[18] The superior court rejected his argument and the Supreme Court affirmed.[19]
This case is interesting when considered along with Practice Book § 2-45, "Cause Occurring in the Presence of the Court." The section states, "if attorney misconduct occurs in the actual presence of the court, the statewide grievance committee and the grievance panels shall defer to the court if the court chooses to exercise its jurisdiction."[20]The question is: if the court witnesses the conduct and chooses not to report the conduct, silence is an exercise of jurisdiction?
The Appellate Court decided three cases that offer significant guidance to lawyers. In In re Ceana R.,[21] the Appellate Court held that the filing of a grievance against appointed counsel is a de facto termination of the attorney-client relationship. In Ceana R., the defendant-father was accused of abuse and neglect of his children.[22] He was appointed seriatim not one, not two, not three, but four attorneys to represent him over the course of six months.[23] The trial court warned him that if he had another falling out with the fourth attorney, he would waive his right to appointed counsel and if there was a legitimate grievance, the father should first file it with the court so the court could determine whether new counsel should be appointed.[24] The father filed a grievance against his fourth attorney without consulting the court and his appointed attorney filed a motion to withdraw.[25] The court granted the motion and found that the defendant effectively waived his right to court appointed counsel.[26] In affirming, the Appellate Court held the DeLeo framework of a client "tak[ing] a concrete step...[to] intentionally...adopt[] a clearly adversarial relationship toward the attorney" was instructive despite the fact that Ceana R. did not involve the continuous representation doctrine.[27] In re Ceana R. will be useful to attorneys seeking to withdraw from contentious client relationships, especially where grievances are filed or threatened.
While not matters of first impression, two other cases provided good examples of what not to do as a lawyer. Both of these cases involved bad behavior as opposed to innocent mistakes or oversight. And while mistakes and oversights can also lead to discipline, bad behavior coupled with an ethical violation almost always leads to more serious sanctions.
In Disciplinary Counsel v. Sporn,[28] an immigration attorney was the subject of three grievances that led to a presentment. The first grievance was filed by a Danish citizen who paid Attorney Sporn $1,365 for a green card application.[29]The work on the application was never done.[30] The client did not become a permanent resident.[31] The second and third grievances concerned brothers-in-law from Albania who were denied political asylum.[32] Each brother paid Attorney Sporn $2,500 to represent him.[33] The work was never done and the brothers were detained by the U.S. Immigration and Customs Enforcement agency ("ICE") for more than one year.[34] In all three grievances, there was no written fee agreement and the fees were not deposited in an IOLTA.[35]
After a presentment, the matter was tried to the court over three days.[36] Attorney Sporn sought to present expert testimony regarding the practice of immigration law.[37] The court did not allow the testimony.[38] The superior court found that Attorney Sporn violated rules 1.1, 1.3, 1.4, 1.5(b), 1.15(d) and (i), and Practice Book § 2-27.[39] The court considered the ABA's Standards for Imposing Lawyer Sanctions and suspended Attorney Sporn for two years.[40]
On appeal, the Appellate Court concluded that the two year suspension was neither manifestly unjust nor an abuse of discretion.[41] The Appellate Court relied heavily on three of the trial court's findings: first, that the misconduct in this case was an established pattern;[42] second, that other serious sanctions had been imposed on the Respondent "to little or no effect;"[43] and third, that the Respondent was "arguably well aware that she was not diligently pursuing her clients' cases or apprising them as to the status of those cases."[44]
Attorney Sporn argued that the expert testimony was necessary to establish that the harm to her clients was either nonexistent or was inevitable.[45] Even though the Appellate Court concluded that some of the trial court's findings as to harm were unfounded, the Appellate Court held that the denial of expert testimony was not an abuse of discretion.[46]
In Picard v. Guilford House, LLC,[47] the plaintiffs attorney deposed a witness in Maine. The attorney scheduled the deposition to end at an unusually early hour without notifying opposing counsel until the deposition had begun, conducted unfocused examination that was not leading to relevant information, failed to seek explanations for objections, and was rude.[48] What's more, the plaintiffs attorney secretly recorded the deposition on her cell phone.[49] This recording included off-the-record conversations between the deposed witness and the lead attorney for the defendant.[50]This was only discovered after the defendant's counsel filed a motion to disqualify the plaintiffs counsel and for sanctions in the amount of attorney's fees.[51]
The superior court ordered all counsel to...
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