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In re Miller

United States District Court, D. Connecticut

May 10, 2019

IN RE JOSEPHINE SMALLS MILLER

          ORDER

          Stefan R. Underhill, United States District Judge.

         The Grievance Committee of the United States District Court for the District of Connecticut (“Grievance Committee”) has brought this presentment action to obtain reciprocal discipline against Attorney Josephine Smalls Miller (“Miller”) for violations of the Rules of Professional Conduct (“RPC”). I held a hearing on April 11, 2019 and took the matter under advisement. For the reasons stated below, I grant reciprocal discipline against Miller and deny Miller's Motion to Dismiss.

         I. Background

         On March 6, 2018, the Connecticut Office Chief Disciplinary Counsel (“OCDC”) filed an amended presentment action against Miller in the Superior Court of Connecticut, Judicial District of Danbury. See Office of Chief Disciplinary Counsel v. Josephine Smalls Miller, DBD-CV17-6022075-S (Conn. Super Ct.), Memorandum of Decision (“Mem. of Decision”) at 1. The Connecticut Superior Court found that Miller violated rules 1.15(a)(5), 1.15(c), 1.3, 1.4 (a)(5), 1.4 (b), 3.2, 5.5, 8.1 (2), and 8.4 (4) of the RPC. See id. at 38-40.

         The facts giving rise to this action are set forth at length in the trial court's Memorandum of Decision. In brief summary, the ODCD's amended presentment alleged four counts of misconduct against Miller. Court One alleged that Miller violated RPC 1.15(a)(5) (safekeeping of property), 1.15(c) (safekeeping property) and 8.1(2) (bar admission and disciplinary matters), in connection to Miller's deposit of $200, 000 of non-client funds into her IOLTA account and her failure to respond to OCDC's request for IOLTA records during an investigation by the Statewide Grievance Committee.[1] Id. at 4-5. The trial court found by clear and convincing evidence that Miller exercised possession and control over the funds “evidenced by [Miller] issuing two separate $10, 000 checks out of [her IOLTA account] as donations to her church.” Id. at 8. Although the court found that Miller had no intent “to deceive anyone or deprive anyone of funds, ” the court concluded that the funds had no connection to Miller's representation of a client in violation of the RPC. Id. at 8-9.

         Count Two alleged that Miller violated RPC 1.3 (diligence), 3.2 (expediting litigation), and 8.4 (4) (misconduct) after Miller repeatedly missed deadlines, canceled scheduled events with little or no notice to opposing counsel or the court, and failed to appear for motion hearings in several state matters. See Id. at 10. The court found that Miller's “multiple failures to appear for scheduled court matters . . . reveal a pattern of both negligence and intentional avoidance of such matters, often to the detriment of her clients.” Id. at 15.

         Count Three alleged that Miller violated RPC 1.4 (a)(1)-(5) and 1.4 (b) (client communications) while representing a client before the Connecticut Appellate Court under an order of suspension. Id. at 17. The court found that Miller executed a retainer agreement with a client in a parental rights dispute, while under a six-month suspension issued by the Connecticut Appellate Court for filing frivolous appeals and failing to meet deadlines. See id. at 18-19. Although Miller was aware of her suspension, the retainer agreement failed to advise Miller's client about her limitations to practice before the Appellate Court. Miller alleged that she orally advised the client of her suspension, but the trial court found that any “oral advisement was completely inconsistent with the express terms of the retainer letter which made no reference whatsoever as to any limitations placed upon her by the Appellate Court. Such conflicting information made it impossible for [Miller's client] to make an informed decision regarding [Miller's] representation.”[2] Id. at 22.

         Count Four alleged that Miller violated RPC 5.5 (unauthorized practice of law) when she provided legal services while under suspension by the Connecticut Appellate Court. Id. at 23- 24. Miller acknowledged that she had not been reinstated by the Appellate Court when she drafted legal documents for a client. Id. at 24. Accordingly, the trial court found by clear and convincing evidence that Miller violated RPC 5.5 by engaging in the unauthorized practice of law. Id. After reviewing the evidence in the record, the trial court suspended Miller from the practice of law in Connecticut for one year. Id. at 38-39.

         Consequently, on November 28, 2018, this Court received a Notice of Reciprocal Discipline. Doc. No. 1. The Grievance Committee filed a Presentment for Discipline on February 7, 2019, requesting that I also impose a one-year suspension. Doc. No. 4. On February 11, 2019, I issued an Order to Show Cause (doc. no. 5) to which Miller responded by filing a Motion to Dismiss the Presentment (doc. no. 9).

         In her Motion, Miller does not refute the underlying allegations of misconduct. Instead, she raises four constitutional challenges to the imposition of reciprocal discipline: (1) reciprocal discipline is unwarranted because Miller was deprived of adequate due process at the state presentment hearing, (2) reciprocal discipline is unwarranted because Miller has a viable claim of discrimination and retaliation, (3) imposing reciprocal discipline would preclude Miller from presenting evidence of racial disparities in the treatment of attorneys by the Statewide Grievance Committee, and (4) reciprocal discipline would lead to disparate treatment as other similarly situated white attorneys have received more lenient treatment.

         In opposition (doc. no. 13), the Grievance Committee argues that Miller fails to demonstrate by clear and convincing evidence that reciprocal discipline should not be imposed. In addition, the Grievance Committee contends that Miller's constitutional arguments are beyond the scope of this proceeding.

         II. Standard of Review

         Local Rule 83.2(f)(2) governs when reciprocal discipline should be imposed in the District of Connecticut. See In re Williams, 978 F.Supp.2d 123, 123-24 (D. Conn. 2012). Under Local Rule 83.2(f)(2), when the Grievance Committee petitions for the imposition of reciprocal discipline via a presentment action, the identical discipline must be imposed unless it clearly appears on the face of the record in the prior disciplinary proceeding:

a. That the procedure was so lacking in notice or opportunity to be heard as to constitute a ...

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