Opinion
No. DBD CV03-0351055-S
July 2, 2008
MEMORANDUM OF DECISION I FACTUAL PROCEDURAL BACKGROUND
On December 23, 2003 the Statewide Grievance Committee (plaintiff) filed a presentment complaint against attorney Nancy Burton (defendant) pursuant to Practice Book § 2-47 alleging that she had been guilty of misconduct involving her character, integrity, and professional standing and that such conduct was in violation of § 8.2(a) and § 8.4(4) of the Rules of Professional Conduct. The basis of the presentment is a letter dated December 12, 1995 that the plaintiff wrote to the Honorable Ellen A. Peters, then Chief Justice of the Connecticut Supreme Court, claiming that the Honorable Howard J. Moraghan, the Honorable Edward F. Stodolink and the Honorable Socrates Mihalakos had, "while assigned to the Superior Court for the Judicial District of Danbury, participated in civil actions . . . in a manner presenting the stark appearance of judicial corruption."
In support of her claim, the defendant wrote that Judge Moraghan had "rendered a clearly erroneous decision to go to the financial rescue of a party to litigation, which party was known to him personally as a friend." As to Judge Stodolink, she claimed "[t]hat a prospective jury assembled before presiding Judge Stodolink in a related proceeding contained a cluster of individuals including the wife of the plaintiff in the litigation, the mother of the probate judge for whom the plaintiff party had served as fund-raiser, a close relative of the clerk of the court, Therese A. Servas, an acknowledged friend of the plaintiffs (sic), and a nursemaid of the plaintiff's attorney's family — wildly out of proportion to the number of close associates to a party one would expect to exist statistically in the jury array." With regard to Judge Mihalakos, she claimed "[t]hat in a related proceeding, Judge Mihalakos refused to conduct a pretrial conference, although assigned to do so, unless the defendant, myself, agreed to pay the plaintiffs, the friends of Judge Moraghan, a sum of money. The jury trial was aborted by settlement. The settlement provided that I would not sue the plaintiffs, the friends of Judge Moraghan, if they withdrew their action against me. Money was not a settlement term."
She further stated as to all three judges that "I am certain that a full and fair investigation of the conduct in question would reveal" such conduct and that "I have witnesses, documentation and transcripts to establish beyond any doubt the truth of the above. The truth so established would clearly constitute `conduct prejudicial to the impartial and effective administration of justice which brings the judicial office in disrepute' within the meaning of Conn. Gen. Stat. § 51-51j." (Plaintiff's Exhibit 1.)
The relevant portion of that statute reads as follows: "The Supreme Court may remove or suspend any judge or family support magistrate for any period upon recommendation of the Judicial Review Council, established under section 51-51k, or on its own motion. Upon receipt of such recommendation or on its own motion, the Supreme Court shall make an investigation of the conduct complained of and hold a hearing thereon, unless such an investigation and hearing has been held by the Judicial Review Council."
The plaintiff alleged in its presentment complaint that the defendant did not produce witnesses, documentation and transcripts that would support the accusations contained in her December 12, 1995 letter; that the statements made by the plaintiff in her letter that Judges Moraghan, Stodolink and Mihalakos manifested the "stark appearance of judicial corruption" with the examples cited for each judge concerned their integrity, were false, and that such conduct and accusations violated Rules 8.2(a) and 8.4(4) of the Rules of Professional Conduct. (Plaintiff's Presentment of Attorney for Misconduct, ¶¶ 7-14.)
Prior to the hearing on the complaint, the issue of subject matter jurisdiction had been raised by the court, sua sponte, and after consideration ordered that the presentment be dismissed based on the fact that at the time of the filing of the presentment the defendant had previously been disbarred by the court in the matter of Sullivan v. Monroe, Superior Court, judicial district of Fairfield, Docket No. 00 370545 (November 2, 2001, Mottolese, J., (That disbarment was upheld on appeal in the matter of Burton v. Mottolese, 267 Conn. 1, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004)). Following the order of dismissal based on lack of subject matter jurisdiction, the matter was appealed to both our Appellate and Supreme Courts. Ultimately, the ruling of the trial court was overturned and the matter remanded for a hearing on the presentment complaint. For a detailed procedural and factual history of this matter reference is made to Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2007) as well as Burton v. Statewide Grievance Committee, 60 Conn.App. 698, 760 A.2d 1027 (2000).
See Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 532-33, 871 A2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2007).
At the heart of this case is whether the allegations and/or statements contained in the letter of December 12, 1995 written by the defendant and sent to the Supreme Court constituted a violation of § 8.2(a) and § 8.4(4) of the Rules of Professional Conduct. Following the remand from the Supreme Court, this court commenced the hearing of the presentment complaint on March 25, 2008 and held hearings over eight full or partial dates.
During the course of the proceedings the defendant repeatedly referred to the document as a "petition" submitted to the Supreme Court pursuant to General Statutes 51-51j. However, the statute uses no such language and the court here will refer to it throughout this decision as a "letter."
Rule 8.2(a) of the Rules of Professional Conduct provides: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office."
Rule 8.4 of the Rules of Professional Conduct provides in relevant part: "It is professional misconduct for a lawyer to: . . . (4) Engage in conduct that is prejudicial to the administration of justice." The commentary to Rule 8.4 explains that "false statements by a lawyer can unfairly undermine public confidence in the administration of justice . . ."
In addition, the hearing was suspended and continued on two occasions at the request of the defendant to allow her to attend to personal matters. A third request was denied. The defendant was also allowed to present witnesses out of order so as to assist her in the presentation of her defense. During the hearing the court considered the testimony offered by both parties, as well as 65 exhibits of which 58 were offered by the defendant. The bulk of the proceeding was conducted for the consideration of the procedural motions of the parties including motions to quash subpoenas issued by the defendant seeking to compel the testimony of four current or former superior court judges. Beyond those motions, the defendant made a voluminous number of written or oral motions including 15 motions for mistrial (1 written, 14 oral), 5 motions to dismiss (4 written, 1 oral), 2 motions to disqualify (1 written, 1 oral) and sundry other motions.
II LAW
In considering the issues set forth in the presentment the court begins by noting that out courts possess "the requisite authority to adjudicate disciplinary matters involving attorneys. See Massameno v. Statewide Grievance Committee, 234 Conn. 539, 553-54, 663 A.2d 317 (1995). (`The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar . . . The judiciary has the power to admit attorneys to practice and to disbar them . . . to fix the qualifications of those to be admitted . . . and to define what constitutes the practice of law . . . In the exercise of its disciplinary power, the Superior Court has adopted the Code of Professional Responsibility.' [Citations omitted; internal quotation marks omitted.])." Statewide Grievance Committee v. Burton, 282 Conn. 1, 7-8, 917 A.2d 966 (2007). "It is fundamental that [t]he Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar." (Internal quotation marks omitted.) O'Brien v. Superior Court, 105 Conn.App. 774, 783, 939 A.2d 1223, cert. denied, 287 Conn. 901, 947 A.2d 342 (2008).
Further, there are statutory provisions and rules of practice applicable to review claims of attorney misconduct. General Statutes § 51-80 provides in relevant part: "The Superior Court may admit and cause to be sworn as attorneys such persons as are qualified therefor, in accordance with the rules established by the judges of the Superior Court . . ." General Statutes § 51-84(a) provides in relevant part "Attorneys admitted by the Superior Court . . . shall be subject to the rules and orders of the courts before which they act." Practice Book § 2-47(a) provides in relevant part: "Presentment of attorneys for misconduct . . . shall be made by written complaint of the statewide disciplinary counsel . . ."
The defendant testified that a review of her conduct was prompted by letters written by Judge Moraghan and Judge Milalakos to the Statewide Grievance Committee relative to the statements made by the defendant in her December 12, 1995 letter. However, it is clear that the complainant in this matter is the Statewide Grievance Committee and not the judges individually. Contrary to the repeated assertions of the defendant, it is the letter of December 12, 1995 that forms the basis of the presentment rather than any letters from Judges Moraghan and Mihalakos.
Attorney "[d]isciplinary proceedings are for the purpose of preservting the courts from the official ministration of persons unfit to practice in them." (Internal quotation marks omitted.) Ex parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 27 L.Ed. 552 (1883); Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989), aff'd, 219 Conn. 473, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). An attorney "as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited." In re Peck, 88 Conn. 447, 450, 91 A.2d 274 (1914). Therefore, "[i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." (Internal quotation marks omitted.) Statewide Grievance Committee v. Botwick, 226 Conn. 299, 307, 627 A.2d 901, (1993). As "an officer of the court . . . [d]isciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers . . . of the court . . . An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system." (Internal quotation marks omitted.) Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 232, 890 A.2d 509, cert. denied, 127 S.Ct. 157, 166 L.Ed 2d 39 (2006); Rules of Professional Conduct, preamble.
"Because a license to practice law is a vested property interest and disciplinary proceedings are adversary proceedings of a quasi-criminal nature, an attorney subject to discipline is entitled to due process of law . . . To satisfy the requirements of due process, attorneys subject to disciplinary action must receive notice of the charges against them. In the context of attorney misconduct proceedings, this court previously has stated that notice must be sufficiently intelligible and informing to advise the . . . attorney of the accusation or accusations made against [her], to the end that . . . [she] may prepare to meet the charges against [her] . . . If this condition is satisfied, so that the accused is fully and fairly apprised of the charge or charges made, the complaint is sufficient to give [her] an opportunity to be fully and fairly heard . . . This court also has explained that a hearing such as this is not the trial of a criminal or civil action or suit, but an investigation by the court into the conduct of one of its own officers, and that, therefore, while the complaint should be sufficiently informing to advise the . . . attorney of the charges made against [her], it is not required that it be marked by the same precision of statement, or conformity to the recognized formalities or technicalities of pleadings, as are expected in complaints in civil or criminal actions." (Citations omitted; internal quotation marks omitted.) Burton v. Mottolese, supra, 267 Conn. 19-21.
As to the standard of proof "`in a matter involving attorney discipline, no sanction may be imposed unless a violation of the Rules of Professional Conduct has been established by clear and convincing evidence.' State v. Perez, 276 Conn. 285, 307, 885 A.2d 178 (2005). `[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.' (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, 245 Conn. 277, 290-91, 715 A.2d 712 (1998)." O'Brien v. Superior Court, supra, 105 Conn.App. 784. Procedurally, "the committee bears the initial burden of evidence to prove the ethics violation by clear and convincing evidence . . . When the committee presents sufficient evidence to meet the burden, the burden of evidence shifts to the alleged violator . . . [A]fter the committee carries its burden, [t]he plaintiff [in this case the defendant] must . . . provide evidence of an objective, reasonable belief that his statements were true." (Citation omitted; internal quotation marks omitted.) Notopoulos v. Statewide Grievance Committee, supra, 277 Conn. 224 n. 7; Burton v. Mottolese, supra, 267 Conn. 49-52.
III DISCUSSION
In the presentation of its case, the plaintiff submitted into evidence the December 12, 1995 letter which the defendant acknowledged she authored and sent to the Supreme Court. The plaintiff called the defendant as its only witness to testify regarding the letter and the factual basis for the statements contained in it. During the course of her direct examination, the defendant admitted authoring the letter and forwarding it to the Supreme Court. Plaintiff's counsel thoroughly inquired of the defendant regarding the specific factual underpinnings of her allegations as to Judges Moraghan, Mihalakos and Stodolink. As to Judge Moraghan, the defendant testified that she based her allegations on her having had ten years of appearances before him, her appearances before other judges, her own observations and research, conversations with and observations of other attorneys, having seen Gary Michael and a "host of others," a transcript of a court proceeding as well as "other factors." She further stated that she believed it was well known in the courthouse that Gary Michael's brother was a friend of Judge Moraghan. From her direct testimony it was clear that she had no evidence or personal knowledge of her claim of the existence of such a friendship but rather believed that an investigation would establish it.
The only other evidence offered by the plaintiff were Plaintiff's Exhibits 3, 4 and 5 relative to prior disciplinary actions involving the defendant. The defendant had objected to the admission of these exhibits claiming that the certified copies offered did not accurately reflect the disciplinary actions taken against her. In admitting the exhibits, the court noted that any evidence of a prior disciplinary history would be used only for the purpose of considering aggravating/mitigating factors under the ABA Standards for Imposing Lawyer Sanctions (to be discussed further below) in the event that the court should find that the imposition of discipline was appropriate in the instant matter. Moreover, to the extent there may have been any deficiencies or discrepancies in the exhibits versus the actual actions taken or discipline imposed against the defendant, the court took judicial notice of the formal rulings or actions of the appropriate disciplinary panel or committee in the specific matters referenced which were: Grievance Complaint #90-0113, Voog v. Burton; Grievance Complaint #97-0368, Moraghan v. Burton; Grievance Complaint #98-0368, Fairfield Judicial District Grievance Panel v. Burton; see also, Sullivan v. Monroe, supra. Further, when asked directly by the court as to whether the reprimand and disbarment orders referenced in paragraphs 2 through 6 of the presentment complaint had in fact been issued against her, she admitted that they had.
Gary Michael was a litigant in a matter heard by Judge Moraghan, Michael v. Burton, Superior Court, judicial district of Danbury, Docket No 88-0295948.
As to Judge Stodolink, her direct testimony revealed that although she claimed that there were four people in a jury array connected in some way to the Michael family involved in the matter before Judge Moraghan, and that this number was "wildly out of proportion to the number of close associates to a party one would expect to exist statistically in the jury array, she was unsure of the number of people (total) that were in the array that morning. She stated her allegations were supported by the fact that "everyone she talked to" about it thought it was not proper and that there was "much more behind this." Further, she was relying on her ten years of being in the court, had become aware of the nature of juries "in this courthouse" and that she had never heard of a situation like this before. When asked directly whether Judge Stodolink was responsible for the assembling of the jury array, she acknowledged that he was not but that her request for a full and fair investigation into the stark appearance of judicial corruption would discover and reveal the basis of her allegations.
As to Judge Mihalakos, her direct testimony under the questioning of plaintiff's counsel revealed that the "related proceeding" in which Judge Mihalakos refused to conduct a pretrial conference unless she agreed to pay a sum of money to "the plaintiffs, the friends of Judge Moraghan," involved the matter of Michael v. Burton, Superior Court, judicial district of Danbury, Docket No. CV 88 0295848. She testified that Judge Moraghan "apparently" assigned the case to Judge Mihalakos for pretrial, that she had a transcript of the pretrial proceeding and that this in part is what prompted her to write to the Supreme Court for an investigation. Curiously, the plaintiff further claimed that her letter of December 12, 1995 made no allegation as to Judge Mihalakos telling her to pay the plaintiff in the Michael v. Burton matter, a sum of money or that there would be no pretrial, nor was there any allegation that the plaintiffs were "the friends of Judge Moraghan." Rather, in her view, the letter was simply a summary request for an investigation into the "culture of the courthouse." This testimony clearly and completely contradicted the plain reading of the specific statements contained in the letter.
This transcript was marked for identification (Plaintiff's 2) during direct examination but not made a full exhibit until offered by the defendant during the presentation of her defense through her own testimony. (Defendant's Exhibit K.)
As noted above, the burden rested upon the plaintiff to establish by clear and convincing evidence the allegations of the presentment complaint. Based upon the testimony and evidence submitted by the plaintiff, the court finds the following facts. That the defendant authored and submitted the letter of December 12, 1995 and that a reading of the plain language of that letter accused Judges Moraghan, Mihalakos and Stodolink of the stark appearance of judicial corruption. The accusations contained in the letter were not qualified or conditioned in any way upon the completion of an investigation to be conducted by the Supreme Court. Further, that the Supreme Court had declined to conduct such an investigation. The court finds that despite being presented with every opportunity under direct examination by the plaintiff to fully state those facts which supported her claim that the named judges had "participated in civil actions . . . in a manner presenting the stark appearance of judicial corruption," the defendant failed to present any credible testimony to substantiate the allegations contained in the letter. The defendant's responses to specific and direct inquiries by both the plaintiff's counsel and the court were almost always evasive, verbose and non-responsive to the questions posed.
This was established by the defendant's testimony under direct examination by the plaintiff. Documentary evidence of the Supreme Court's declination was later submitted by the defendant through Defendant's Exhibit C.
When repeatedly asked to provide specifics as to her allegations of corruption, the defendant's most frequent responses were that she had asked for a full and fair investigation, that the conduct of the judges was part of the "culture of the courthouse," and that they were based on her observations of the courthouse and judges over ten years and beyond.
Upon the conclusion of the direct examination by the plaintiff, the defendant, acting pro se, affirmatively waived any opportunity to conduct a "cross-examination" though the court made clear it would allow her to proceed to present evidence in such a context provided that she did not present argument and limited herself to factual statements based on the questions posed to her on direct examination. Thereafter, she elected to move to have the case dismissed based on the failure of the plaintiff to establish its case by clear and convincing evidence. The motion was denied in that the court was of the opinion the plaintiff had placed before it through the December 12, 1995 letter and the direct questioning of the defendant (which failed to elicit any credible substantiation of the defendant's allegations) clear and convincing evidence that the claims made in the letter were known by the defendant at that time to be false or made with a reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge in violation of § 8.2(a) and § 8.4(4) of the Rules of Professional Conduct. Having done so the burden then shifted to the defendant to provide evidence that she had an objective, reasonable belief that her statements were true at the time she made them. Notopoulos v. Statewide Grievance Committee, supra, 277 Conn. 224 n. 7; Burton v. Mottolese, supra, 267 Conn. 49-52.
When provided with the opportunity to present direct evidence in her defense of the presentment complaint, the defendant initially attempted to call as witnesses Judges Moraghan, Mihalakos, Stodolink and Mottolese as well as a former judge, Robert Fuller. However, following service of subpoenas on Judges Moraghan, Stodolink and Mottolese, as well as Robert Fuller, the attorney general's office appeared on their behalf and moved to quash them on the ground of judicial immunity. At the hearing on the motions, the court allowed the defendant to make an offer of proof as to the anticipated testimony of each. Following the offers of proof made by the defendant, the court found that the anticipated testimony of Judges Moraghan, Stodolink, Mottolese and former judge Robert Fuller would not be sufficient to abrogate the principles of judicial immunity as she had failed to show there was a compelling need for them to testify as to observable facts in order for justice to be done. Gold v. Warden, 222 Conn. 312, 320, 610 A.2d. 1153 (1992); State v. Fuller, 56 Conn.App 592, 623, 744 A.2d 931, cert. denied, 952 Conn. 249, 748 A.2d 298 (2000). In making its ruling quashing the subpoenas, this court noted that the defendant had the right to present witnesses but such a right had to be balanced against any validly exercised claims of judicial immunity. Moreover, contrary to her assertion that the named judges were the complainants in this matter and she therefore had an absolute right to confront them, it was in fact the Statewide Grievance Committee which was the complainant. As specifically stated in Practice Book § 2-47(a) "[p]resentment of attorneys for misconduct . . . shall be made by written complaint of the disciplinary counsel . . ." See also, Statewide Grievance Committee v. Burton, supra, 282 Conn. 8. Hence, it was the plaintiff, as an arm of the court, which was the complainant and not the judges individually.
However, as part of the hearings on the motions to quash, and to ensure the defendant could maximize her ability to defend herself given the seriousness of the proceedings and claims against her, the court directed the attorney general to produce a copy of transcripts which it indicated it had in its possession in which Judges Moraghan and Mihalakos had given testimony in other proceedings relative to this matter and potentially related matters. Those transcripts were made court exhibits 1, 2 and 3 and consisted respectively of a December 23, 1997 deposition of Judge Moraghan in a federal district court action Monsky v. Moraghan, as well as July 11, 2001 and September 12, 2001 transcripts of hearings before the Statewide Grievance Committee on the same matter now before the court in which both Judges Moraghan and Mihalakos testified. A review of the deposition transcript reveals that the defendant had fully explored those areas of inquiry which she now contends are relevant to this proceeding. As to the transcripts of the Statewide Grievance Committee proceedings, she was given considerable leeway by the committee in the September 12, 2001 hearing to conduct inquiry into areas she believed were relevant to the charges against her. In fact, a review of the transcript of that proceeding reveals an unmistakable level of exasperation expressed by the committee at the range and length of questioning conducted by the defendant of Judges Moraghan and Mihalakos. Through these exhibits, and given the scope and breadth of the inquiry allowed of both Judges Moraghan and Mihalakos therein, the defendant's ability and interest in defending herself against the charges now pending were protected and advanced despite the inability to physically produce either as a witness. Statewide Grievance Committee v. Johnson, 108 Conn.App. 74, 946 A.2d 1256 (2008) (where defendant had a full and fair opportunity to, and did, cross-examine a complainant at a hearing before a reviewing committee, and where complainant was unavailable for trial on the presentment, the admission of complainant's prior testimony did not deprive defendant of due process).
The matter now pending before the court is a de novo proceeding relative to the same allegations previously brought by the Statewide Grievance Committee. As part of the current action, the defendant applied for a subpoena as a pro se defendant under Practice Book § 7-19 to compel Judge Moraghan to testify and bring his copy of the deposition in the matter of Monsky v. Maraghan, United States District Court, Docket No. 3:97CV01616 (D.Conn. April 19, 1999). A review of the 1997 deposition provided by the attorney general (Court Exhibit 1) revealed that the defendant Nancy Burton was the attorney for Barbara Monsky, the plaintiff in the federal action, and that she had noticed and conducted the deposition of Judge Moraghan. When asked by the court if she had not first reviewed her own files to see if she had a copy of the deposition that would have been provided to her by the court monitor, she indicated she was unable to locate it and later argued that it was "fate" that she didn't have it. When asked if she had ever made a request by phone or letter for a copy of the deposition from the court monitor who was present at the deposition, she indicated that she had not as it was easier for her to avail herself of her procedural right to make the application for a subpoena through the clerk's office.
As to Judge Mihalakos, it should be noted that the defendant also sought to subpoena him to this proceeding but that she could not effectuate service upon him. Because of her inability to make service, the defendant asked for continuances of this hearing to allow her the opportunity to do so. The multiple requests for continuances for this purpose were denied, although as noted above, the hearing was continued on two other occasions at her request which effectively extended the period of time during she could have had the subpoena served.
As part of her defense, the defendant submitted 58 exhibits which she believed to be relevant to the proceeding. Most of the exhibits were admitted without objection from the plaintiff. A review of those exhibits found most to be of little relevance to the allegations of the December 12, 1995 letter and those that did have some relevance carried little weight. In addition to these exhibits, the defendant did elect to avail herself of the opportunity to present her own testimony in support of her defense. From that testimony it ultimately became clear that the "litigation" referred to in the letter relative to Judge Moraghan's "clearly erroneous decision" was the matter of Burton v. Redding Planning Commission, Superior Court, judicial district of Danbury, Docket No. 311070. In considering the defendant's defense, the court took judicial notice of that matter and Michael v. Burton, supra.
For example the defendant entered into evidence numerous copies of pleadings, court orders, reported cases, memoranda of law, memoranda of decision, subpoenas, definitions of words, newspaper articles, and even a book entitled " The Remarkable Huntingtons, Chronicle of a Marriage."
During the trial the defendant pointed to various events or circumstances as support for her allegations. For example, she testified that a ceremony and reception given for the unveiling of a portrait of Judge Moraghan at the courthouse was evidence of corruption in that individuals who worked in the courthouse, the attorneys who practiced before him, and even litigants or relatives thereof may have solicited or contributed money for the creation of the portrait. (Defendant's Exhibit J.) As additional proof she noted that Judge Moraghan had in the past yelled at her, testified under oath in a legal proceeding that he disliked her, that she "presumed" other attorneys would talk to him about her to her detriment; that a motion to transfer a case out of the district had been denied by Judge Moraghan after the ceremony for the unveiling of the portrait, and, that while he was assigned as a criminal judge he had sat in the gallery observing a civil trial of her client.
She also testified that it was Judge Moraghan who assigned Judge Mihalakos the pretrial matter she complained of and that Judge Mihalakos had a mean attitude. Further, that she had seen a note in a file by Judge Mihalakos that this was a "Burton" matter, implying that he made special notations of such matters, but that she could no longer find the note. Moreover, that when she went to other courts, those judges would surprisingly know about her files.
In offering testimony about the jury array with which Judge Stodolink was involved, she noted that she had done three other jury trials and none had an array with so many individuals with some connection to a party to the case She indicated that every encounter she ever had with Judge Stodolink was negative including a case where her client had dismissed her and another attorney had taken over the case and only the other attorney had received an award of attorneys fees.
In general she noted that as to all three judges there were "strange rulings" coming down unlike those in a "normal" courthouse.
The defendant further testified that she issued a second letter to Chief Justice Peters on January 16, 1996 which expounded on her allegations contained in the original letter and again asked for an investigation. (Defendant's Exhibit 1.) She contended that this letter was supported by additional documentation. However, by letter of February 5, 1996, the Chief Justice declined to do so. (Defendant's Exhibit C.)
The Chief Justice did refer the December 12, 1995 letter to the Judicial Review Council which found there was no probable cause to support the allegations. (Defendant's Exhibits B and X.)
The only other witness presented by the defendant to support her allegations was the chief clerk of the Danbury Judicial District, Therese Servas. While subpoenaed to present a number of files to which the defendant was either a counsel of record or a party, or which involved one of the judges named in her letter, she was also examined as to her relationship with the judges and some of the litigants involved. Attorney Servas credibly testified that she had no personal (as opposed to professional) involvement with the matters of Burton v. Recycling Planning Commission or Michael v. Burton. Nor did she have any personal involvement with the jury array with which Judge Stodolink was involved. The defendant made much of the marriage ceremony of attorney Servas presided over by Judge Moraghan in 1982 yet there was no testimony or evidence elicited manifesting such conduct as corruption on the part of Judge Moraghan.
In comparing the defendant's testimony to the allegations of her December 12, 1995 letter, the court finds it significant that despite the severity of the offenses in the eyes of the defendant, she made no reference to them in that letter. Further, there was no supporting documentation produced at trial to establish that as of the date she issued the letter, she had "witnesses, documentation and transcripts to establish beyond any doubt the truth of the above."
For example, a review of the transcript submitted at trial relative to the pretrial conference before Judge Mihalakos in the matter of Michael v. Burton reveals absolutely no legitimate or reasonable basis to support the allegations contained in her letter. See Defendant's Exhibit K. The same is true regarding the transcripts submitted in support of the allegations against Judge Stodolink (see Defendant's Exhibits L and M) and Judge Moraghan (see Defendant's Exhibits N, O and Z).
Like most of the exhibits submitted by the defendant, her direct testimony, along with her examination of attorney Servas, unfortunately often had little if any bearing on the direct issue before the court. While some portions of the defendant's testimony may have been supported by the exhibits, because the testimony itself was not relevant, it failed to suggest that the defendant had an objective, reasonable belief that her allegations were true. In fact, a significant portion of the testimony she elected to give was relative to her work in the matter of Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 942 A.2d 345 (2008) involving nuclear power and regulatory issues which had no direct bearing on her letter of December 12, 1995. However, she did use her work in that matter to address her ability to present evidence in a suspension or disbarment proceeding pursuant to General Statutes § 51-94 as to her general character, reputation, integrity and professional standing. To that end the defendant called three witnesses on her behalf. The first, Gail Merrill, was a psychotherapist who had known the defendant since approximately 2000 or 2001. Ms. Merrill testified that the defendant had knowledge of the legal process and that she had given advice and counsel in addressing concerns about the operation of the Millstone nuclear power plant to the New York attorney general's office. The second, Ms. Lucy Lee Grimes Evans, a Harvard graduate who had worked in teaching, publishing, commercial banking and as a political columnist, testified that she had known the defendant since 2004 or 2005 and that she admired her dedication in trying to shut down the Millstone plant or get it to follow safety regulations. She described the defendant as amazingly dedicated, energetic and professional in her dealings with the attorney general's office and others and that she was a "valuable public servant." She also noted that in 2006 the defendant had been selected to run in the general election as the Green Party candidate for the office of attorney general. Lastly, the defendant called Mitsy Bowman, a former librarian who had first met the defendant in 1997 and described her as "reliable," "honest," and the "most self-sacrificing friend alive." She further described her as a good attorney who had courage and ability, was a "heroine," and that a statue should be put up for her. Each of the three witnesses expressed great admiration for her work in the context of the political and legal fight against the operation of the Millstone nuclear power plant.
"In any proceeding for the suspension, displacement or removal of an attorney-at-law or to investigate the character, integrity or professional standing of such attorney, evidence tending to show the general character, reputation and professional standing of such attorney shall be admissible." General Statutes § 51-94.
The defendant presented uncontroverted testimony that prior to and at the time of this hearing she was still admitted as a member of the bar of the State of New York and as a member of the federal bar for the District of Connecticut.
It is unclear how the defendant would have executed the duties of the office of attorney general if elected as at that time she was still subject to the order of disbarment entered in the matter of Sullivan v. Monroe. General Statutes § 3-124 states that "[t]he Attorney General shall be . . . an attorney at law of at least ten years' active practice at the bar of this state . . ."
As noted above, the court found that the plaintiff had carried its initial burden of proving by clear and convincing evidence that the conduct of the defendant, as embodied by the December 12, 1995 letter and the testimony elicited through her examination by the plaintiff, violated the Rules of Professional Conduct § 8.2(a) in that she had made a statement that she knew to be false or had made it with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. She had also committed professional misconduct under § 8.4(4) by engaging in conduct prejudicial to the administration of justice. From a review of the testimony and evidence put forth by the defendant in defense of the presentment complaint, the court finds that she failed to produce any credible testimony to support her contention that the contents of her letter of December 12, 1995 were based upon an objective, reasonable belief that her statements were true. Notopoulos v. Statewide Grievance Committee, supra, 277 Conn. 224 n. 7; Burton v. Mottolese, supra, 267 Conn. 49-52. Having considered all of the relevant and credible evidence offered by either party, the court finds the plaintiff has sustained its burden of proof as there is a reasonable belief that the facts asserted in the complaint are highly probably true as the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. O'Brien v. Superior Court, supra, 105 Conn.App. 784.
The defendant has also claimed that her letter was constitutionally protected speech. However, imposition of discipline for speech critical of a judge or court in violation of the Rules of Professional Conduct does not amount to a constitutional violation. Notopoulos v. Statewide Grievance Committee, supra, 227 Conn. 232-37.
In reaching this conclusion the court notes the defendant's letter of December 12, 1995 and the follow-up letter of January 16, 1996 were based on her fervent belief of the righteousness and accuracy of her allegations and that she fancied herself a "whistleblower" or protector of the court. Yet her citation of wrongdoing on the part of the named judges often consisted of simply referring to the rulings or results of other cases or proceedings which were adverse to her or her clients. The defendant claimed that such rulings were evidence of bias, prejudgment and corruption. In effect, the defendant wanted this court to sit as an appellate court over motions considered and rulings issued up to twenty years ago. This, of course, the court cannot and will not do. Despite the intensity of her belief that wrongdoing had been done, repeated requests by both the court and plaintiff's counsel to provide specifics to support her claims in the December 12, 1995 letter were met with an unmitigated ability of the defendant to avoid doing so. The consistency of her inability to directly address any questions put to her from any source, even on the simplest of matters, led the court to place little credibility in her testimony. Consistent with her view of adverse rulings in prior proceedings, the defendant clearly considered any adverse rulings in the instant proceeding to be a concerted effort by the court to undermine the righteousness of her position. The defendant also repeatedly insisted the words "stark appearance of judicial corruption" did not mean that she had alleged "judicial corruption." Rather, to her, it simply meant she had asked for an investigation of judicial corruption. The defendant's position in this respect would have the court suspend its understanding of the English language and the plain meaning of the terms admittedly authored by her. "It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001). To the extent that the court may consider the defendant's argument as one that there was no intent to violate the Rules of Professional Conduct, our courts have noted that § 8.4(4) and other rules do not contain a requirement of intent. O'Brien v. Superior Court, supra, 105 Conn.App. 803 (DiPentima, J., concurring in part, dissenting in part); Ansell v. Statewide Grievance Committee, 87 Conn.App. 376, 388, 865 A.2d 1215 (2005). Nonetheless, the defendant's repeated assertions that the wording of the letter was being misread by the court and by the judges who were the subject of the letter is an affront to the court. By taking a position so contrary to the plain meaning of the letter which she authored, the defendant presented a defense that had no legitimate basis and unduly burdened the court by extending the trial well beyond the appropriate boundaries of both time and reason. Because she consistently failed to directly address the inquiries of the court and counsel, gave non-responsive or evasive answers, filed multiple dilatory oral and written motions, submitted various exhibits which had little to no bearing on the matter being heard, and requested numerous continuances without just cause, the defendant's conduct squandered so much of the court's limited resources that it is compelled to make reference to it herein.
For example, when asked about her prior disciplinary history as alleged in the presentment complaint, which included reprimands and her disbarment, she indicated that she was unsure of the outcome of those matters as she did not have records in front of her. Later in the proceedings she admitted that the reprimands and disbarment had been ordered. However, following that acknowledgment and well into the proceedings, she filed a written answer to the complaint wherein she denied the allegations relative to the prior disciplinary history. When confronted by the court regarding the direct contradiction between her oral acknowledgment to the court and her written answer, she modified her answer to leave the plaintiff to its proof as to the bulk of the allegations, deny portions thereof, or to state that she could not admit or deny. (Defendant's Amended Answer to Presentment #182.00.)
At one point during the proceedings, the defendant offered into evidence several exhibits and represented that the plaintiff's counsel had agreed upon them and had no objection to their admission. Upon the court's inquiry of the plaintiff's counsel if what the defendant stated about the plaintiff's position was "true," the defendant immediately moved for a mistrial claiming the court was biased against her because it had never inquired of her whether any statement plaintiff's counsel had made was true.
From this proceeding it has become clear to the court that the defendant's perception of the nature of her obligations under § 8.2(a) and § 8.4(4) is so far askew from any reasonable interpretation of those sections that her participation as a member of the bar of this state cannot be found to be anything other than a clear and immediate threat to the public's confidence in the judiciary, and ultimately, its independence. No greater damage can be done to the judiciary than to undermine the public's confidence that it will judge matters fairly. There is no question that the defendant sees a nefarious shadow in the corner of every act, comment, or adverse ruling in any judicial matter in which she is involved and even those in which she is not. Simple rulings based on the law, the Code of Evidence and procedural formalities followed by the court are evidence to the defendant of the conspiratorial nature of the judiciary as it seethes and plots against her to either extract revenge for her pursuit of meritorious actions or to prevent her from achieving the goals of vindicating the actions of both herself and her clients. It is hard to imagine a larger misuse of time and limited judicial resources than that foisted upon the court by the defendant both through her past actions as well as her defense in this case. Her lack of respect for authority, legal precedent, and virtually every single member of the judiciary whom she has come before is an absolute and severe violation of the Rules of Professional Conduct. The defendant's inability to grasp the most basic tenets of her position within the legal community and the obligations concomitant with them shows she is unfit to practice law before the courts of this state.
Adverse rulings by themselves do not constitute bias. State v. Fullwood, 194 Conn. 573, 582, 484 A.2d 435 (1984).
The court has reviewed all of the claims raised by the defendant in her brief. Those with merit have been addressed herein. The balance of the claims raised are totally without merit. In fact, the brief itself violated the strongly emphasized instructions of the court given to the parties at the conclusion of the trial that any post-trial brief was not to exceed 35 pages in length. Although originally due by May 30, 2008, the defendant was granted a two-week continuance of the deadline to file it. The brief submitted by her consists of 34 pages of text, an "Appendix A" which is a 3-page transcript of a portion of attorney Servas' testimony and last, but certainly not least, "Appendix B" described by the defendant as "a synopsis of the pertinent facts established at trial" consisting of 17 additional pages — with each of the 17 pages numbered page "35." The defendant's gall in submitting such a document to the court in direct contravention of its orders only underscores her blatant disregard for both the court's authority and the obligations of her position.
IV DISCIPLINE
Given her violation of the Rules of Professional Conduct, the court must now turn to the issue of what discipline to impose upon the defendant. As noted previously, discipline or sanctions are not intended to punish the defendant, but rather to safeguard the courts and the public from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. To this end, our Supreme Court has approved the use of the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards). Burton v. Mottolese, supra, 267 Conn. 55 n. 50; Statewide Grievance Committee v. Spirer, 247 Conn. 762, 782 n. 13, 725 A.2d 948 (1999). The Standards provide that, after a finding of misconduct, a court should consider: "(1) the nature of the duty violated; (2) the attorney's mental state; (3) the potential or actual injury stemming from the attorney's misconduct; and (4) the existence of aggravating or mitigating factors." A.B.A., Standards for Imposing Lawyer Sanctions (1986) standard 3.0; see also Burton v. Mottolese, supra, 267 Conn. 55-56. The Standards list the following as aggravating factors: "(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution and (k) illegal conduct, including that involving the use of controlled substances." Id., standard 9.22. The Standards list the following as mitigating factors: "(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct: (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; 6) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses." Id., standard 9.32. The court will attempt to address each of the variables set forth in those standards.
As to the nature of the duty violated, the court finds that the defendant has committed acts of misconduct which violate her duty to the public, the legal system and the profession. The statements contained in her December 12, 1995 letter were known to her to be false or, at the very least, were made with a reckless disregard as to their truth regarding the qualifications or integrity of the named judges. Moreover, such conduct and statements could only unfairly undermine public confidence in the administration of justice. As to her mental state, the court finds the defendant's actions to not only be intentional and willful, but also, made with a full knowledge of the consequences of such accusations. Such misconduct causes serious tangible and intangible harm to not only the named jurists, but also to the public's confidence in the bar as well as to the integrity of the civil justice system as a whole. Although there is no issue in this matter relative to monetary restitution as with some presentment complaints, the potential and real loss in this case is far more valuable than any defalcation or misappropriation of funds. The loss of public confidence in the legal system and specifically its judges, cannot be easily replenished. Once lost, there is no "public confidence security fund" to which application can be made for restitution to make the system and its judges whole again. The damage is both real and incalculable. This is particularly true given that once confronted with such accusations, judges have limited, if any, ability to publicly respond to attacks on their integrity.
The court further finds that there are both aggravating and mitigating factors to be considered. As to the aggravating factors, the court notes that the defendant has been repeatedly disciplined before including prior violations of § 8.2(a) and § 8.4(4). She clearly has a selfish motive in making the allegations contained in her letter as during the trial she railed against the disciplinary proceedings of the past and the present stating that "this travesty needs to stop." Had the statement been directed to the impact on the judicial system and the legal profession as opposed to herself, it would have been the single most accurate statement propounded by her during the course of the proceedings. There is little doubt that she has engaged in a pattern of misconduct given her disciplinary history and the frequent allegations that jurists are both gender biased and biased in general. As to the factor regarding multiple offenses, she has committed numerous disciplinary offenses as already described above. The defendant engaged in a bad faith attempt to obstruct the disciplinary proceedings by filing dilatory motions and making untimely and unjustified requests for continuances. (See footnote 5 above.) Tellingly, upon the commencement of the second day of the proceedings, the defendant filed a motion for leave to move for judicial disqualification on the ground that the court was biased. As to the unjustified requests for continuances, the court notes that she made multiple requests for the court to continue the matter to allow her time to effectuate service of a subpoena on Judge Mihalakos as his whereabouts were unknown. The defendant even went so far as to file a motion asking the court to convene an immediate hearing to have the court ascertain the physical whereabouts of Judges Mihalakos and Moraghan. She argued that the denial of such requests and motion was a violation of due process although no viable precedent, rule or law was cited by the defendant in support of her position.
Prior offenses are relevant to the consideration of discipline. Burton v. Mottolese, supra. In the defendant's case they include: (1) Michael v. Burton, Superior Court, judicial district of Danbury, Docket No CV88 295948 (1989), (Mottolese, J.) reprimand for unfounded, outrageous allegations of misconduct by Judge Howard Moraghan and other court personnel . . . (2) Voog v. Burton, Grievance Complaint #90 0113 (1991) reprimand for violation of rule 3.4(a), (c) and (f) of the Rules of Professional Conduct. (3) Fairfield Grievance Panel v. Burton, Grievance Complaint #96 0024 (1997) reprimand for violation of rules 8.2(a) and 8.4(d). This reprimand was affirmed by Judge McWeeny. Burton v. Statewide Grievance Committee, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV97-057337 (September 24, 1998), reversed on procedural grounds in Burton v. Statewide Grievance Committee, 60 Conn.App. 698, 760 A.2d 1027 (2000). The matter now before the court was the same matter considered therein. (4) Moraghan v. Burton, Grievance Complaint #97-0338 (2000) reprimand for violation of rule 8.2(a). The "subsequent appeal of [the] reprimand was dismissed by both the trial court and the Appellate Court. The defendant's petition for certification to the Supreme Court was denied." Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 538, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2006). (5) Fairfield Judicial District Grievance Panel v. Burton, Grievance Complaint #98-0368 reprimand for violation of rule 3.1. "[T]he defendant's appeal from this reprimand was subsequently dismissed by both the trial court and [the Appellate Court]." Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 538, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2006). (6) Bartel v. Renard, United States District Court for the Southern District of New York, Docket No. 96 CIV-6463 (JSM) (S.D.N.Y. October 27, 1999), Order of Honorable John S. Martin, Jr., Joint and several award of attorneys fees of $41,335.03 for obstruction of court order and wilful-wanton misconduct. (7) Bartel v. Renard, United States District Court, Docket No. 96 CV 6463 (JSM) (S.D.N.Y. December 16, 1999), Order of Honorable John S. Martin, Jr., Contempt of court order joint and several award of $5,050. (8) Monsky v. Moraghan, United States Court of Appeals, Docket No. 99-7822 (2d Cir. 2000), summary order. Show cause order for sanctions of $5,000 and double costs for blatantly frivolous appeal. (9) Burton v. Moraghan, Docket No. CV No. 3:98 CV 1490 (AHN) September 6, 2000. United States Magistrate Judge Holly B. Fitzsimmons, award of attorneys fees and expenses $5,200 for violation of court order; confirmed by the court, Nevas, J. The defendant has also been sanctioned in other cases. See In re Egri, United States Court of Appeals, Docket Nos. 02-7227, 02-7653, 02-7703, 02-7751, 02-9020 (2d Cir. July 1, 2003) (affirming District Court's sanction of $171,546.80 for violating permanent injunction); Burton v. Statewide Grievance Committee, 48 Conn.Sup. 94, 103, 830 A.2d 1205 (2002) (reprimand for bringing "charges against judges with reckless abandon, thereby undermining public confidence in the administration of justice"), aff'd, 79 Conn.App. 364, 365, 829 A.2d 927, cert. denied, 267 Conn. 903, 838 A.2d 209 (2003). Sullivan v. Monroe, supra, (disbarment for a period of five years). Upheld on appeal in Burton v. Mottolese, supra.
See footnotes 22 and 23 above. It should also be noted that even where the testimony and transcripts in evidence regarding Judge Moraghan revealed that he harbored dislike for her and had yelled at her, that does not equate to judicial corruption. There was no credible evidence before the court that he had rendered any decision or acted in his capacity as a judge in any way which would give credence to a charge of the "stark appearance of judicial corruption." In fact, to the contrary, there was evidence that there was a point reached where after alleging bias and challenging his ability to fairly preside over matters involving the defendant or her clients, Judge Moraghan exercised his discretion to recuse himself from hearing any such matters so as to assure a fair hearing.
The motion for leave was granted. It was not until the last day of the trial that the defendant filed the actual motion for disqualification. That motion was denied.
As to the factor of false evidence, false statements, or other deceptive practices during the disciplinary process, the court has already noted the baseless claims of gender bias, bias in general, and prejudgment as well as her repeated evasive and equivocal answers to even the simplest of questions which was done in an attempt to either mislead or derail the court in its obligation to investigate her fitness to practice law.
From her conduct and statements during the trial it was clear that the defendant would not even acknowledge the possibility that her conduct and the allegations contained in the December 12, 1995 letter may have been wrongful and beyond the limits set forth in the Rules of Professional Conduct. in comments almost identical to those in her proceedings before Judge Mottolese in Sullivan v. Monroe, the defendant accused each participant involved in this trial of some misconduct. As to the plaintiff and its counsel, she accused them of engaging in a pattern of abuse against her for many years. She also accused the court of bias and prejudgment only hours after the trial had commenced, before any testimony on the matter had been heard and despite the fact the undersigned had never previously presided over a court proceeding involving the defendant. Moreover, her description of the past and present disciplinary proceedings against her as a "travesty" was directed to the plaintiff, its counsel and the court.
The court has already addressed above how the legal system as well as the individual judges named are victims of the conduct of the defendant and the vulnerability of both. As noted by Judge Mottolese in his dealings with the defendant, "[t]he system suffers immeasurable harm when its constituent members are treated with open and aggressive disdain by an attorney who practices within it." Sullivan v. Monroe, supra, Superior Court, judicial district of Fairfield, Docket No. 00 370545 (November 2, 2001, Mottolese, J.).
As to her experience in the law, the court notes that the defendant was not a neophyte to the profession at the time she wrote the letter. She was admitted as a member of the bar of the state of Connecticut on December 19, 1985. She also testified that she was not only a member of the bar of this state but also of that of the state of New York and of the federal bar for the District of Connecticut. Hence, inexperience cannot be a justification or explanation for her conduct.
The last aggravating factors regarding indifference to making restitution and illegal conduct are irrelevant to the issue before the court as there is no allegation regarding defamation, misappropriation or mismanagement of funds, nor is there any allegation of illegal conduct on her part.
The court now turns to a review of the record to determine if there are any mitigating factors as to the defendant's conduct. As described above, the defendant presented three witnesses pursuant to General Statutes § 51-94 as evidence of her general character, reputation and professional standing. Because the defendant has been disbarred for the last several years there is an impediment to making a finding that she has a good reputation as an attorney in her community. However, the court can extrapolate the comments of the witnesses on her behalf relative to her dealings with the New York attorney general's office (presumably acting as a member of the New York bar) and her work prior to her disbarment on nuclear power and regulatory issues into making a finding that she did maintain a good reputation in this regard. The court also notes that two of the prior disciplinary actions taken against the defendant were more than four years before the acts complained of and are therefore somewhat remote in time.
Having considered both the aggravating and mitigating factors under the A.B.A. Standards, the court finds that though mitigating factors do exist, they do not come close to outweighing the aggravating factors present. Her prior disciplinary history for actions as a member of the bar of this state, and notably her prior violations of § 8.2(a) and § 8.4(4) which are the sections she is alleged to have violated through the conduct complained of in this matter, leads the court to find that discipline is appropriate in this matter. The court recognizes that the defendant has previously been disbarred for a period of five years. Under that order of disbarment she will be eligible to apply for readmission in March 2009 which would be the earliest date she could apply provided she has met all of the conditions set forth therein. In order to protect the court, the legal profession and the public against future actions by the defendant, the court orders the following:
In Sullivan v. Monroe the court ordered that: "Nancy Burton be disbarred from the practice of law in this state and that she be prohibited from applying for readmission for a period of five years. Any application for readmission shall comply with the provisions of Practice Book § 2-53 and in addition shall comply with the following:
1. Successful completion of a course in Connecticut civil practice and procedure at an accredited law school.
2. Successful completion of a course in professional responsibility and legal/ethics at an accredited law school.
3. Pass the multi-state examination in professional responsibility administered under the auspices of the Connecticut Bar Examining Committee.
4. Demonstrate to the satisfaction of the reinstatement panel appointed pursuant to Practice Book § 2-53 that the applicant has achieved such a degree of rehabilitation as to encourage a belief that (a) she will conduct her professional life with due respect for the Connecticut judiciary and the judicial process which she has been sworn to uphold, (b) she is prepared to accept responsibility for her actions and will refrain from blaming judges and others for any adverse result which she may suffer in a particular case, (c) she will be truthful in all of her dealings with the court."
See also Burton v. Mottolese, supra.
First, that the defendant shall be disbarred from the practice of law in this state and shall be prohibited from applying for readmission for five years. The five-year period of disbarment shall commence upon the date she qualifies for readmission to the bar in the matter of Sullivan v. Monroe. Such qualification is distinguished from her eligibility for readmission as the defendant must apply for reinstatement and qualify for readmission by having met all of the conditions set by the court in that matter. Only upon a finding pursuant to Practice Book § 2-53 that she has successfully completed all of the conditions relative to that matter will the five-year period of disbarment in this matter commence.
Second, during the pendency of any appeal from this decision, should the defendant be granted readmission to the bar following the end of the period of disbarment in Sullivan v. Monroe, the defendant may not file with the court any complaints, pleadings, or actions of any other kind without the prior permission of the court, or in the alternative, must do so with another member of the bar acting as co-counsel who a) is in good standing with the Statewide Grievance Committee, b) has no history of disciplinary action having been taken against him or her, c) provides proof of having taken six hours of continuing legal education classes in ethics, and d) has at least ten years of experience in litigation.
Third, the defendant shall successfully complete with a grade of B or better a course in Connecticut civil practice and procedure at an accredited law school.
Fourth, the defendant shall successfully complete with a grade of B or better a course in professional responsibility and legal ethics at an accredited law school.
Fifth, the defendant shall pass the multi-state examination in professional responsibility administered by the Connecticut Bar Examining Committee.
Sixth, the defendant shall successfully complete with a grade of B or better a course in evidence at an accredited law school.
Seventh, the defendant shall undergo a general mental health evaluation by a licensed professional within thirty days of her application for readmission to the bar and append a written report from such professional to the application.
Eighth, the defendant is fined $100 for each violation of § 8.2(a) and § 8.4(4) as to each of the three judges named in the December 12, 1995 letter. The total fine is $600 and shall be remitted to the court within thirty days of the date of this decision.
General Statutes § 51-84:
(a) Attorneys admitted by the Superior Court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act.
(b) Any such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.
Ninth, upon compliance with the first eight conditions, the defendant may make application for readmission pursuant to Practice Book § 2-53. Upon receipt of such application by the court, it shall be referred to the standing committee on recommendations for admission. As part of its investigation, that committee shall conduct an oral interview of the defendant and also seek the recommendation of the office of the chief disciplinary counsel. The defendant shall demonstrate in that interview, to the satisfaction of the committee, that she a) achieved a degree of rehabilitation that will enable her to conduct herself in manner not likely to result in further violations of the Rules of Professional Conduct or rules of the court; b) will conduct herself professionally with due respect for the Connecticut judiciary and the judicial process; c) affirmatively accepts responsibility for her actions and publicly disavows in both oral and written form the statements contained in her letters of December 12, 1995 and January 16, 1996; d) produces written evidence that a member of the Connecticut Bar Association, admitted to practice for at least ten years and in good standing with the Statewide Grievance Committee, has agreed to act as mentor for her in the practice of law for a period of at least two years; e) will be truthful and direct in all dealings with the court whether in oral or written form; f) publicly disavows in both oral and written form any past claims of gender bias on the part of members of the judiciary; g) in no instance will blame judges or others for any adverse rulings or results which she or her clients may suffer in a particular action, subject to her right to appeal a claimed error in any such ruling or result to the appropriate forum.
The plaintiff shall file a bill of costs within thirty days of the date of this decision in accordance with Practice Book § 2-51. Such costs shall be taxed in favor of the plaintiff and against the defendant absent objection within 15 days of the date of filing.
So ordered.