Argued
February 6, 2019
Procedural
History
Appeal
from the reprimand issued by the defendant's reviewing
committee for the plaintiff's alleged violation of the
Rules of Professional Conduct, brought to the Superior Court
in the judicial district of Hartford and tried to the court,
Robaina, J.; judgment dismissing the appeal, from
which the plaintiff appealed to this court.
Affirmed.
Debra
Cohen, self-represented, the appellant (plaintiff).
Brian
B. Staines, chief disciplinary counsel, for the appellee
(defendant).
Alvord, Sheldon and Bear, Js.
OPINION
ALVORD, J.
The
plaintiff, Debra Cohen, an attorney, appeals from the
judgment of the trial court dismissing her appeal from the
reprimand imposed by the defendant, the Statewide Grievance
Committee, for her violation of rules 3.3 (a) (1) and 8.4 (3)
of the Rules of Professional Conduct.[1] On appeal, the plaintiff
claims that (1) disciplinary counsel violated her due process
rights by refusing to conduct an investigation into the
allegations of misconduct against her, (2) disciplinary
counsel violated her due process rights by failing to produce
any witnesses other than the plaintiff at her hearing before
the reviewing committee, (3) the court improperly inferred
the existence of an attorney-client relationship between the
plaintiff and the Probate Court, (4) the court improperly
expanded the application of rule 3.3 to an attorney
functioning in a fiduciary role, and (5) the court improperly
upheld the reviewing committee's determination that an
entry in the amended final account filed by the plaintiff on
June 24, 2013, constituted a knowingly false statement to the
Probate Court in violation of rule 3.3 (a) (1) and was
dishonest in violation of rule 8.4 (3). We affirm the
judgment of the trial court.
The
following facts and procedural history are relevant to our
resolution of the plaintiff's claims. The plaintiff was
hired as a staff attorney for the Office of the Probate Court
Administrator on November 14, 2005. As an employee, her
duties included court visits and assessments of the probate
courts, including audits of random files, to determine
whether the required accountings were timely filed and in
compliance with applicable law and procedures. The plaintiff
also provided support and legal advice to the Probate Court
judges and their staff regarding probate matters and required
filings.
At the
time the plaintiff was hired by the Office of the Probate
Court Administrator in 2005, she was serving as a
court-appointed trustee for the sole beneficiary of the
estate of John DeRosa in the North Central Probate Court
(Probate Court).[2] On April 25, 2012, the plaintiff filed a
proposed periodic accounting and an affidavit of fees in the
DeRosa matter. On May 1, 2012, the chief clerk of the Probate
Court sent an e-mail to Attorney Thomas E. Gaffey, chief
counsel for the Office of the Probate Court Administrator,
inquiring whether an employee of his office was precluded
from serving as a fiduciary for an estate or a trust.
Attorney Gaffey responded that there was no specific policy
or regulation prohibiting employees from serving in a
fiduciary capacity.[3] On May 18, 2012, the plaintiff filed a
motion to resign as the fiduciary in the DeRosa estate with
the Probate Court. Following a hearing before the Probate
Court on May 23, 2012, the Probate Court judge, Timothy R.E.
Keeney, issued an order requiring, inter alia, the filing of
a final account[4] upon the resolution of any interest and
penalties due in connection with state and federal tax
filings. Judge Keeney further noted that he would consider
the plaintiff's motion to resign at the time that the
final account was filed.
On
April 15, 2013, the plaintiff retained Attorney Timothy Daley
to represent her in the Probate Court proceedings. By letter
dated April 15, 2013, Attorney Daley submitted a proposed
final accounting for the DeRosa matter, which included
proposed fiduciary fees for the plaintiff's services.
Additionally, Attorney Daley noted the fact that the
plaintiff had mistakenly failed to file income tax returns
for the trust, which caused the trust to incur tax penalties
in the amount of $5531.84. He stated that the plaintiff
acknowledged that she had failed to file the returns on
behalf of the trust in a timely manner, but that
‘‘the [f]iduciary has credit[ed] and paid back
the penalties incurred by the [t]rust as set forth in the
[d]ebit section of the [f]inal [a]ccounting.''
A
hearing on the final account was held before the Probate
Court on May 15, 2013. At that hearing, the plaintiff filed
an amended final account that showed a reimbursement to the
estate of $5531.84 for the income tax interest and penalties,
and a request for fiduciary fees in the amount of $5980 for
the period of January 1, 2012, to April 22, 2013. Following
the hearing, Attorney Gaffey instructed the plaintiff that
she was not to request or charge fiduciary fees in any
Probate Court matter for the time period that she had been
employed by the Office of Probate Court
Administrator.[5] Accordingly, on May 24, 2013, the
plaintiff e-mailed the following message to the chief clerk
of the Probate Court: ‘‘I am informing the
Probate Court that I intend to file an amendment to the final
account. I ask . . . the Court not to make a ruling on the
account until the amendment is received. The amendment will
make no entry for the payment of fees for the fiduciary and
will set aside a reserve for the payment of state and federal
income taxes and the cost for preparing the final income tax
returns. . . .''
On June
1, 2013, the plaintiff filed an amended final account for the
period of January 1, 2012, to May 31, 2013. The June 1, 2013
amended final account decreased the fiduciary's
contribution to reimburse the estate for income tax interest
and penalties to $4283.74, and explained the reduction in
footnotes 1 and 2 of the accounting. The plaintiff noted that
the Connecticut Department of Revenue Services had
‘‘granted amnesty to [the] [e]state for the
2000-2007 tax years [and] the value of the tax pardoned . . .
is $1248.10.'' As represented in her May 24, 2013
e-mail to the Probate Court, the plaintiff did not include an
entry for fiduciary fees in the June 1, 2013 amended final
account.
By
letter dated June 5, 2013, Judge Keeney returned the
plaintiff's June 1, 2013 amended final account. He
explained in a letter that there were ‘‘several
outstanding concerns, '' the primary concern being
the reduction of the fiduciary's credit to the estate
from $5531.84 to $4283.74. Judge Keeney stated:
‘‘From what has been submitted, it appears that
the [Connecticut Department of Revenue Services] action is a
reduction of tax obligation. Why does the accounting ask for
the interest and penalties to be reduced by $1248.10 for the
[s]tate for tax years 2000-2007 if there was no tax due for
these years?'' In a separate paragraph, Judge Keeney
‘‘duly noted'' that the fiduciary fees
totaling $5980 ‘‘have now been waived.''
Because the plaintiff claims that the court's letter was
not clear and that she was confused as to the reason for the
return of the June 1, 2013 amended final account, the entire
contents of Judge Keeney's June 5, 2013 letter to the
plaintiff is reproduced in footnote 6 of this
opinion.[6] On the same day, June 5, 2013, Judge
Keeney ordered and decreed: ‘‘Said accountings
cannot be approved as submitted. It is, therefore, ORDERED
that this hearing be adjourned until further order of the
Court, AND that the fiduciary file an amended account
forthwith correcting the errors and/or
deficiencies.'' (Emphasis in original.)
On June
24, 2013, the plaintiff filed an amended final account for
the period of January 1, 2012, to June 24, 2013. This latest
accounting reflected a contribution by the fiduciary to the
estate in the amount of $5531.84 for the income tax interest
and penalties. The June 24, 2013 amended final account also
included, however, an entry for fiduciary fees in a
corresponding amount of $5531.84.[7] On July 19, 2013, the chief
clerk of the Probate Court sent an e-mail to the plaintiff
advising her that the court had not yet set a hearing on the
June 24, 2013 amended final account because ‘‘the
Judge still has some questions/concerns.''
Thereafter, the plaintiff revised the accounting to remove
the entry for fiduciary fees, and the Probate Court approved
the estate's final account on September 5, 2013.
On
October 31, 2013, the Office of the Probate Court
Administrator placed the plaintiff on administrative leave
without pay pending a disciplinary hearing before a three
judge board to determine whether the recommendation of the
Probate Court Administrator to terminate the plaintiff's
employment should be adopted. Following a hearing, the board
issued its ruling on October 6, 2014, in which it found by
clear and convincing evidence that the plaintiff's
actions warranted serious discipline, and the board agreed
that the plaintiff's termination from employment was an
appropriate sanction.
On
January 2, 2015, Patricia A. King, who was chief disciplinary
counsel at the time, filed a grievance complaint against the
plaintiff with the defendant. The complaint was referred to a
grievance panel for the Hartford and New Britain judicial
districts, which found probable cause that the plaintiff had
violated rule 1.7 (a) (2) of the Rules of Professional
Conduct.[8] A hearing was scheduled before a three
person reviewing committee on July 9, 2015. On June 25, 2015,
the Office of Disciplinary Counsel filed
‘‘Additional Allegations of
Misconduct''[9] pursuant to Practice Book § 2-35
(d).[10] The additional allegations all were
directed to the plaintiff's conduct in the DeRosa matter.
Disciplinary counsel alleged that the plaintiff had
‘‘committed professional misconduct in violation
of [r]ules 3.3 and 8.4 (3) [of the Rules of Professional
Conduct] by her refusal to adhere to Probate Court requests
and orders in the [DeRosa] case, '' and attached
seventeen documents in support of the additional allegations.
Practice
Book § 2-35 (f) provides that a respondent to a
grievance complaint is ‘‘entitled to a period of
not less than thirty days before being required to appear at
a hearing to defend against any additional charges of
misconduct.'' Accordingly, the plaintiff's
hearing before the reviewing committee was continued from
July 9, 2015, to September 10, 2015. The reviewing committee
conducted the hearing on September 10, 2015, and issued its
decision on November 13, 2015.
In its
decision, the reviewing committee found the following facts
by clear and convincing evidence: (1) On May 23, 2012, Judge
Keeney ordered the plaintiff to file a final accounting in
the DeRosa matter upon the resolution of the interest and
penalties owed in connection with the federal and state tax
filings; (2) at a hearing before the Probate Court on March
7, 2013, ‘‘it was agreed that the [plaintiff]
would reimburse the estate for the interest and penalties
assessed due to the [plaintiff's] failure to file state
and federal income taxes for the years 2000 to
2010''; (3) Attorney Daley, on behalf of the
plaintiff, filed a final account on April 15, 2013,
requesting approval of the plaintiff's fiduciary fees
and, in an accompanying letter, acknowledged that the
plaintiff's failure to timely file tax returns caused the
estate to incur interest and penalties in the amount
of$5531.84; (4) the April 15, 2013 final account filed by
Attorney Daley showed a $5531.84 reimbursement to the estate
by the plaintiff; (5) at a hearing held before the Probate
Court on May 15, 2013, the plaintiff filed an amended final
account, showing a reimbursement to the estate in the amount
of $5531.84 for the interest and penalties due to the late
tax filings and a charge to the estate in the amount of $5980
for fiduciary fees; (6) following the hearing on May 15,
2013, Attorney Gaffey directed the plaintiff not to request
or charge any fiduciary fees for the time that she was
employed by the Office of Probate Court Administrator; (7) on
May 24, 2013, the plaintiff sent an e-mail to the chief clerk
of the Probate Court stating that she would be filing an
amended final accounting that would not request any fiduciary
fees; (8) on June 1, 2013, the plaintiff filed an amended
final account that reduced the plaintiff's contribution
to the estate for income tax interest and penalties to
$4283.74; (9) as represented in her May 24, 2013 e-mail to
the Probate Court, the June 1, 2013 amended final account did
not claim any fiduciary fees; (10) Judge Keeney returned the
June 1, 2013 amended final account to the plaintiff by letter
dated June 5, 2013, instructing her to amend the accounting
to reflect a $5531.84 contribution by her to the estate for
the income tax interest and penalties; (11) in Judge
Keeney's June 5, 2013 letter to the plaintiff, he noted
that the plaintiff had waived fiduciary fees in the June 1,
2013 amended final account; (12) on June 24, 2013, the
plaintiff filed an amended final account that reflected a
contribution of $5531.84 by her to the estate as directed by
the court, but which included claimed fiduciary fees in a
corresponding amount of $5531.84; (13) on July 19, 2013, the
chief clerk of the Probate Court advised the plaintiff that
the June 24, 2013 accounting had not been scheduled for a
hearing because the judge had some questions and concerns;
(14) the plaintiff thereafter revised the final accounting to
remove the claim for fiduciary fees, which the Probate Court
approved on September 5, 2013; and (15) on October 6, 2014,
the plaintiff was terminated from her position as staff
attorney with the Office of Probate Court Administrator
following a disciplinary hearing before a three judge board.
The
reviewing committee further noted in its decision that the
plaintiff ‘‘maintained that she was confused and
made a mistake when she included a reimbursement for
fiduciary fees in the June 24, 2013 [a]mended [f]inal
[a]ccount. The [plaintiff] contended that all the accountings
that she filed were proposed accountings subject to Probate
Court approval and, therefore, could not be deemed
misleading.''
On the
basis of the reviewing committee's factual findings, it
found by clear and convincing evidence that the plaintiff had
‘‘engaged in unethical conduct.'' The
reviewing committee concluded: ‘‘It is clear to
this reviewing committee that the [plaintiff] was attempting
to off-set the amount she owed to the estate for the income
tax interest and penalties with her fiduciary fees. The
[plaintiff] maintained that the request for fiduciary fees
was a mistake. This reviewing committee does not find the
[plaintiff's] statement credible, considering the fact
that the amount of the fiduciary fees requested equaled the
amount of interest and penalties owed to the estate by the
[plaintiff]. Furthermore, the [plaintiff] is an experienced
Probate Court attorney who clearly understood the directives
of Judge Keeney. We find the [plaintiff's] actions were
knowing, deliberate and contrary to her representation to the
court in her May 24, 2013 e-mail and June 1, 2013 accounting.
Accordingly, we conclude that the [a]mended [f]inal [a]ccount
filed by the [plaintiff] on June 24, 2013, constituted a
knowingly false statement to the Probate Court, in violation
of [r]ule 3.3 (a) (1) of the Rules of Professional Conduct
and was dishonest, in violation of [r]ule 8.4 (3) of the
Rules of Professional Conduct.''[11] After
concluding that the plaintiff had violated rules 3.3 (a) (1)
and 8.4 (3), the reviewing committee reprimanded the
plaintiff and imposed sanctions.
Upon
the plaintiff's request for review pursuant to Practice
Book § 2-35 (k), [12] the defendant affirmed the decision
of the reviewing committee at a meeting held on January 21,
2016. After addressing the plaintiff's arguments set
forth in her request to review, the defendant concluded that
‘‘the reviewing committee's findings that the
[plaintiff] violated [r]ules 3.3 (a) (1) and 8.4 (3) of the
Rules of Professional Conduct are supported by clear and
convincing evidence and . . . the [plaintiff's] violation
of these [r]ules warrants a reprimand and an order that the
[plaintiff] attend a continuing legal education course in
legal ethics.''
Pursuant
to Practice Book § 2-38, [13] the plaintiff filed an appeal
with the Superior Court. In its September 7, 2017 memorandum
of decision, the court made the following determination:
‘‘The court does not find the decisions of the
reviewing committee or the Statewide Grievance Committee to
be clearly erroneous. There is ample support in the record to
justify the findings of the [reviewing] committee that the
submission of the accountings constituted a false statement
to a tribunal. The [reviewing] committee was within its power
to reject [the plaintiff's] assertion that the filing of
the accountings was a mistake. Not coincidentally, the same
assertion was made and rejected . . . in the proceeding
before the . . . three judge panel of Superior Court judges..
. . The court also finds that the finding of a violation of
rule 8.4 [of the Rules of Professional Conduct] is justified
by the record, and is not clearly erroneous.''
(Internal quotation marks omitted.) The court then reviewed
the reprimand imposed and found that ‘‘the
reprimand falls within proper guidelines.''
Accordingly, the court dismissed the plaintiff's appeal.
From that judgment, the plaintiff now appeals to this court.
Before
considering the plaintiff's claims, we first address the
standard of review applicable to grievance appeals.
‘‘[T]he clearly erroneous standard . . . is the
preferable standard of review in attorney grievance appeals.
. . . The clearly erroneous standard of review provides that
[a] court's determination is clearly erroneous only in
cases in which the record contains no evidence to support it,
or in cases in which ...