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Cohen v. Statewide Grievance Committee

Court of Appeals of Connecticut

May 7, 2019

DEBRA COHEN
v.
STATEWIDE GRIEVANCE COMMITTEE

          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 ...


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