Opinion
No. FST CV 08 4014502
December 16, 2009
CORRECTED MEMORANDUM OF DECISION RE MOTION TO DISMISS (108.00)
The original memorandum of decision, issued November 4, 2009 omitted a line of text at the top of page 3 and the first two lines of note 2.
I. Background
This case arises from a grievance complaint filed against Attorney Gary Cohen by a former client, Zimmerman. The critical events took place in May 2001, primarily in Chicago, Illinois, where Cohen and his client Zimmerman met with Zimmerman's wife, her attorney and two mediators for several days to mediate and negotiate a hotly disputed divorce. The final result was a Marital Settlement Agreement which eventually disposed of pending and competing divorce actions in Connecticut and Nevada. It was alleged and testified to by Zimmerman that Cohen threatened to leave the Chicago proceedings unless he was paid an additional $300,000 above his regular fee, and that the $300,000 fee, which was set forth in the Marital Settlement Agreement, was wrongly described therein as for tax advice and counseling. Cohen in his testimony, strongly disputed Zimmerman's testimony on these and other points.
A reviewing committee of the Statewide Grievance Committee, after two days of hearings, found by clear and convincing evidence that Cohen had violated Rules 1.5(a) and 4.1 of the Rules of Professional Conduct. The reviewing committee's majority decision summarized its findings as follows:
Rule 1.5(a) states in part: "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses."
Rule 4.1 states: "In the course of representing a client a lawyer shall not knowingly: (1) make a false statement of material fact or law to a third person . . ."
A majority of this reviewing committee finds, by clear and convincing evidence, that the Respondent engaged in unethical conduct. It is clear that the $300,000 paid to the Respondent, as set forth in paragraph 5.2 of the Marital Settlement Agreement, was treated, by the Complainant and the Respondent as well as others cognizant of it, as a "bonus" or "premium" fee paid to the Respondent beyond his hourly rate. While such a bonus or premium fee is problematic in itself, compounding the situation herein is the fact that this fee was sought in midst of a mediation seeking to settle the underlying matter for which the Complainant retained the Respondent. The Respondent thereby impermissible allowed this fee to be inserted into the negotiations. He placed the Complainant in the untenable situation of having to choose between paying a bonus fee or placing at risk the overall settlement, which was otherwise favorable to him. In so doing, the Respondent unconscionably used a favorable settlement offer as leverage to force his client to pay a bonus which, in effect, tripled the hourly fee the Respondent had set forth in his fee agreement. Under the circumstances of this case, the $300,000 fee was inherently unreasonable, and clearly in violation of Rule 1.5(a) of the Rules of Professional Conduct. It is also clear that this fee had little, if anything, to do with providing tax planning or counseling, as claimed in Section 5.2 of the Marital Settlement Agreement, particularly in light of the Respondent's May 24, 2001 letter in which he confirmed he was not providing tax advice in connection with the consequences of the settlement agreement. This was a false statement of material fact or law in violation of Rule 4.1 of the Rules of Professional Conduct.
This decision was affirmed by the full Statewide Grievance Committee which directed the Chief Disciplinary Counsel to file a presentment against Cohen in Superior Court.
The presentment was filed in July 2008, and Cohen subsequently moved to dismiss the presentment. After extensive briefing the motion was heard in July 2009. In July 2009, the presentment was amended with the consent of Cohen, to add two additional counts. The motion to dismiss is not directed at those two counts.
II. Facts
In March 2006, the Stamford-Norwalk Judicial District Grievance Panel dismissed certain elements of Zimmerman's grievance, but found probable cause that there was a violation of Rules 1.5(a) and 4.1 of the Rules of Professional Conduct. Pursuant to Practice Book § 2-35(c) a reviewing committee of three members, including two attorneys, was established by the Statewide Grievance Committee with an evidentiary hearing scheduled for October 12, 2006. On that day one of the reviewing committee members (Attorney Stingle) was ill and did not attend; both parties waived her appearance, and it was announced that the decision after the hearing would be rendered by the remaining two members.
Practice Book § 2-35(c) states in pertinent part: "At least two of the same members of a reviewing committee shall be physically present at all hearings held by such reviewing committee. Unless waived by the disciplinary counsel and the respondent, the remaining member of the reviewing committee shall obtain and review the transcript of each such hearing and shall participate in the Committee's determination."
The last of two days of hearings took place on January 4, 2007 and briefs were filed several months later. In August 2007, the parties were notified that the two members of the reviewing committee were not able to agree on a decision and the Statewide Committee advised the parties that, pursuant to Statewide Grievance Committee Rule of Procedure 7.F that Attorney Stingle would participate by review of the full record, including the transcript and vote to break the tie. Neither party objected to that procedure. In January 2008, the reviewing committee issued its two-to-one decision that Cohen be presented to the Superior Court for discipline. The reviewing committee decision was approved by the full Statewide Grievance Committee over the objection of Cohen which included an objection to the inclusion of Stingle who had not been present for the testimony.
(3) Rule 7.F states: "All determinations of a reviewing committee shall be by an absolute majority vote and two members shall constitute a quorum. In the event of a tie vote, a member of the Statewide Grievance Committee shall be designated to review the entire record of the complaint and cast the deciding vote."
III. Discussion
The gist of Cohen's motion to dismiss is that he was deprived of due process when the presentment before the court was based on the vote of a reviewing committee member who was not present at the hearing and therefore was purportedly unable to assess the credibility of witnesses.
Cohen correctly points out that an attorney subject to discipline is entitled to due process. In In Re Ruffalo, 390 U.S. 544, 551 (1968); Statewide Grievance Committee v. Botwick, 226 Conn. 299, 306 (1993). The question before this court is what process was due under the circumstances of this case. Cohen relies heavily on the case of Petition of Grimm, 138 N.H. 42, 635 A.2d 456 (1993). In that case the New Hampshire Supreme Court dealt with a psychologist's appeal of the revocation of his license by the State Board of Examiners of Psychologists. Noting the general rule in administrative proceedings is that a board may act on the written record of testimony not personally seen or heard, the New Hampshire Supreme Court stated that the general rule gives way to an exception when the board makes factual determinations, and the record does not provide a reasonable basis for evaluating the testimony in question. Petition of Grimm, supra, 138 N.H. 46-47. The case involved alleged sexual contact between the psychologist and a patient, the complainant. During eight days of hearings before the board of five members, less than five members were present during the direct and cross examination of Dr. Grimm and the complainant, and only two members were present for all of the cross examination of the complainant. Id., 47. Finding that the decision and order of the board rested on its conclusion that the complainant's testimony was more credible than Dr. Grimm's, the New Hampshire Supreme Court held that "due process requires all panel members deciding the case to be in attendance for all of the parties' testimony, plus any other testimony on the issue of credibility in order to effectively assess the issue of credibility," and vacated the board's decision. Id.
A more pertinent case for this Connecticut court is Lewis v. Statewide Grievance Committee, 235 Conn. 693 (1996) in which the Connecticut Supreme Court took a significantly different stand than its New Hampshire counterpart. Lewis involved a determination by a reviewing committee of the Statewide Grievance Committee that probable cause existed that an attorney had violated Rule 1.6 (regarding confidentiality of client information). The reviewing committee initially consisted of two attorneys and one lay member. The lay member attended none of the three hearing days and resigned from the committee. Because the two remaining members were split on the decision, the Statewide Committee pursuant to its Rule 7.F referred the entire record to another layperson who, after reviewing the record, voted with one attorney member for a reprimand.
The Connecticut Supreme Court stated that the attorney's due process rights were not violated even though the layperson had not personally attended the hearings. Id., 707. The court said the principle of members of an administrative body voting after reading the record was well recognized. Id. [citing Pet v. Department of Health Services, 228 Conn. 651, 672 (1994).] In responding to an argument that credibility was a central issue in the reviewing committee's decision, the court said:
The trial court correctly observed, however, that most of the relevant facts were undisputed and credibility was not a major factor in the reviewing committee's decision. Furthermore, even if the plaintiff's credibility had been at issue, due process requires no more than the presence of two of the three reviewing committee members at the grievance hearings when, as in the present circumstances, the third member read the full record and transcript, and all proceedings were conducted in full compliance with the applicable procedural rules.
Id., 708 Justice Berdon, in a concurring opinion, sharply criticized the opinion of the court stating "[i]f a witness' credibility may have any impact upon the outcome of a case, the trier of fact must determine that individual's credibility in a proper manner through personal observation of the witness." Id., 708.
In the memorandum in support of the motion to dismiss, Cohen's counsel attempt both to distinguish and criticize the Lewis decision. It is contended that, unlike this case, Lewis noted that "most" of the relevant facts were not disputed, and credibility was not a "major factor." Further, it is argued that the Connecticut Supreme Court failed to take into account decisions from other state and federal courts holding that due process requires credibility decisions based on seeing and hearing the testimony at issue. E.g. Petition of Grimm, supra; United States v. Mejia, 69 F.3d 309 (9th Cir. 1995).
Unquestionably there are other jurisdictions where courts have decided that, under certain circumstances, a trier of fact must be present at the testimony in order to make credibility determinations. The three federal court of appeals decisions discussed at length by the defendant all involved criminal defendants. See United States v. Mejia, supra; Cullen v. United States, 194 F.3d 401 (2d Cir. 1999); Hill v. Beyer, 62 F.3d 474 (3d Cir. 1995). It is well recognized that in the criminal law context, where a life or a term of imprisonment may be at stake, due process requires heightened protections. However, federal courts of appeal have also rejected the claim that attorney discipline proceedings are required to provide the full panoply of federal constitutional protections that apply to a criminal prosecution. Matter of Jacobs, 44 F.3d 84, 89 (2d Cir. 1994), cert. denied, 516 U.S. 817 (1993) (calling such an assertion "groundless"); see also Charges of Unprofessional Conduct Against 99-37 v. Stuart, 249 F.3d 821 (8th Cir. 2001) (attorney disciplinary proceedings require notice and an opportunity to be heard, but they do not require all the constitutional protection provided in criminal prosecutions). Therefore, this court rejects the proposition that holdings in federal criminal proceedings have any bearing on whether Lewis should be followed. Similarly, the fact that the New Hampshire Supreme Court and some other state courts have held, under certain circumstances, that credibility determinations must be made by those present when the testimony was given are not particularly persuasive evidence to this court that it should not follow Lewis. None of the state court cases cited by Cohen dealt with attorney discipline proceedings, and Cohen makes no persuasive argument why this court should follow Petition of Grimm, supra, and other cases rather than a decision of its own Supreme Court.
The court is not persuaded that Lewis is distinguishable based on the facts of this case. Cohen contends that almost the entire finding is based on the reviewing committee's acceptance of Zimmerman's testimony about events that allegedly transpired over the very different testimony offered by Cohen. He argues that his testimony and that of Zimmerman were markedly different as to what was said in Chicago about the $300,000 fee, whether there were threats to terminate the representation and on other critical subjects. In contrast, it is argued that there were practically no credibility issues to be resolved in Lewis. The court agrees there are more issues of credibility in this case, but notes that Lewis only found that "most" facts were undisputed and that credibility was not "a major" factor. Thus, Lewis cannot be distinguished on the ground that it was a case with no factual or credibility issues. Beyond that, however, the Lewis court specifically stated that even if plaintiff's credibility had been at issue "due process requires no more than the presence of two of the three reviewing committee members" at the hearings. That language, dealing with precisely the issue before this court, refutes the argument that Lewis is distinguishable.
Cohen did not argue, either in his moving papers or in a reply memorandum, that the language in Lewis referred to in the preceding paragraph was dicta. However, perhaps emboldened by an inquiry from the court, and a response by Disciplinary Counsel at oral argument to the effect that the language might be dicta, (see Transcript July 16, 2009, 43-44) Cohen's counsel subsequently argued that the language was dicta and should be disregarded. Defendant's Supplemental Memorandum, July 28, 2009 (Dkt. Entry 116.00); Letter, October 6, 2009. In their October submission Cohen's attorneys quote from a recent Connecticut Supreme Court case footnote which in turn quotes from Black's Law Dictionary that "[d]icta are opinions of a court which do not embody the resolution or determination of the specific case . . . [and] . . . are individual views of the authors of the opinion and are not binding in subsequent cases as legal precedent." Honulik v. Greenwich, 293 Conn. 641, 645 n. 5 (2009).
At the outset, this court is not convinced that the language of Lewis quoted above is dicta. The precise holding of Lewis is "due process requires no more than the presence of two of the three reviewing committee members at the grievance hearings when, as in the present circumstances, the third member read the full record and transcript. That holding has precedential value applicable to this case, because as noted above, the Lewis court found that some facts in that case were disputed and credibility issues were not non-existent.
While a closer question, the clause "even if the plaintiff's credibility had been at issue" is arguably not dicta because it extends the court's holding to emphasize that credibility issues, or the lack thereof, were not determinative factors in the court's consideration of what process was due Attorney Lewis. This seems to be an essential point of the decision because it appears not to be clear from the record whether the not "major" credibility issues related to the testimony of Attorney Lewis (the plaintiff). As the Appellate Court very recently stated, " it is not dictum when a court [of appeal] intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of the controversy . . . rather, such action constituted an act of the court which it will thereafter recognize as a binding decision." Red II, LLC v. Conservation Commission, 117 Conn.App. 630, 647 n. 9 (2009) [quoting Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn.App. 432, 435, cert. denied, 250 Conn. 919 (1999)] (emphasis added by the Appellate Court).
If this court is incorrect, and the relevant portions of the Lewis decision are non-binding dicta, the court still considers the case authoritative and persuasive enough to be followed. It is, after all, the considered position of four justices of the Connecticut Supreme Court articulated and maintained in the face of strong criticism from Justice Berdon who made essentially the same arguments being advanced in this case by Cohen. Dicta is not required to be ignored. Indeed, in its recent decision in Honulik v. Greenwich, supra, cited by the defendant, the Connecticut Supreme Court stated it used dicta in construing provisions of the state constitution. Id., 293 Conn. 648. In Sovereign Bank v. Licata, 116 Conn.App. 483 (2009) the Appellate Court, relying in part on Connecticut Supreme Court dicta, recently held that a claim for negligent misrepresentation sounds in tort and is not barred by the statute of frauds. Over half a century ago, the United States Supreme Court declined to overrule dicta of Chief Justice Marshall in Hepburn Dundas v. Ellzey, 2 Cranch 445 (1804) (stating that the District of Columbia was not a state for diversity purposes). National Insurance Co. v. Tidewater Co., 337 U.S. 582 (1949). The court therefore concludes that it should follow the determination of the Connecticut Supreme Court in Lewis.
IV. Conclusion
For the reasons stated above, the motion to dismiss is denied.