Ansell v. Statewide Grievance Committee

• Decision Date: 08 February 2005
• Docket Number: No. 25255.,25255.
• Citation: 87 Conn.App. 376,865 A.2d 1215
• Court: Connecticut Court of Appeals
• Parties: Denise ANSELL v. STATEWIDE GRIEVANCE COMMITTEE.

865 A.2d 1215

87 Conn.App. 376

Denise ANSELL v. STATEWIDE GRIEVANCE COMMITTEE.

No. 25255.

Appellate Court of Connecticut.

Argued December 1, 2004.

Decided February 8, 2005.

Joseph D. Courtney, Vernon, the appellant (plaintiff).

Cathy A. Dowd, assistant bar counsel, for the appellee (defendant).

SCHALLER, DiPENTIMA and PETERS, Js.

Opinion

DiPENTIMA, J.

The plaintiff, Denise Ansell, an attorney licensed to practice of law in Connecticut, appeals from the judgment of the trial court dismissing her appeal from the reprimand issued to her by the defendant, the statewide grievance committee (committee). On appeal, Ansell claims that the court improperly concluded that (1) there was no legal significance to the fact that those judges presiding at the time of the ethics violations failed to reprimand her, (2) the evidence supported a reprimand under rule 3.4(5) of the Rules of Professional Conduct, and (3) the evidence supported a reprimand under rule 8.4(3) of the Rules of Professional Conduct. We affirm the judgment of the trial court.

This case has its origin in a contentious family case in which Ansell and the complainant, attorney Gary Traystman, represented opposing parties. During the proceedings before the trial court, Ansell's predecessor, attorney James K. Kelley, filed a motion to preclude the psychological evaluation by and testimony of Ronald D. Anderson, alleging that Traystman had improper ex parte communications with Anderson. In cross-examining Anderson at a hearing on the motion, Kelley elicited that Anderson had spoken with Traystman regarding scheduling matters only and that the substantive information allegedly provided by Traystman had in fact come directly from his clients. Ansell was thereafter retained in lieu of Kelley.

On August 15, 2001, before Hon. Robert I. Berdon, judge trial referee, Ansell raised the issue of ex parte communication between Anderson and Traystman, stating: "There was, also, a question, as I recall, with the last evaluator that brought in the case of In re David W. [254 Conn. 676, 759 A.2d 89 (2000)] because, apparently, there were communications ex parte between the evaluator and ... attorney Traystman and information provided to him. It was not communicated to counsel for [Ansell's client], as she's reflected in the file, and this was one of the issues on appeal, as well." When asked by the court what kind of information the ex parte communication had involved, Ansell was initially unable to answer. When pressed again by Traystman and the court as to the nature of the ex parte communication, Ansell stated: "I was not prepared to argue this today. If the court would like to give me a few moments, I can go through the transcripts and I'll be very happy to point out the information that attorney Kelley, I believe, brought before Judge Foley his — I believe there was a motion filed. Since I was not trial counsel, it makes it a little bit more difficult for me, and Mr. Kelley isn't here. There was a motion filed to preclude Dr. Anderson's testimony as a result of that information, and I could find that information, probably, in one of the four transcripts that I have."

On August 20, 2001, the parties appeared before Judge McLachlan for a hearing on whether Anderson's evaluation should be updated. During that hearing, Ansell again raised the issue of ex parte communications, stating: "[P]art of the appealable issues, which are preserved per Justice — per the — well, per Justice Berdon's most recent letter to [the chief clerk of the appellate courts] is that ... Anderson was subject to ex parte communication with both the guardian ad litem ... and attorney Traystman, rendering a problem." Later, the following colloquy took place between Ansell and the court:

"Ansell: But my objection to Ron Anderson was that, as I recall reading the transcript, he was given materials that were not agreed upon by all the parties to be given to him. And there were communications, admitted communications between him and attorneys Traystman and [Susan] Connolly, which were unbeknownst to other counsel, which were objected to.

"The Court: But did they have anything to do —

"Ansell: And since Judge Keller's —

"The Court: — did they have anything to do — this is not a juvenile matters proceeding — did they have anything to do with anything other than scheduling, the communications with —

"Ansell: Yes, Your Honor.

"The Court: And what —

"Ansell: That's —

"The Court: — do you claim they had to do with?

"Ansell: I don't have the transcripts in front of me, Your Honor. They're voluminous. And I'm sorry —

"The Court: Well, that's — that's not good —

"Ansell: — but I don't have them memorized.

"The Court: — that's not — that's not good enough, attorney Ansell. You think there's something in the transcript, but you can't tell me what it is. Is that what you're really telling me?

"Ansell: I just told you what it was. That they had communicated —

"The Court: No. I asked you if it had something to do with something other than scheduling. And you told me, yes.

"Ansell: Yes.

"The Court: And I said, what was it? And you told me you didn't know.

"Ansell: It had to do with information. They were giving information to ... Anderson regarding the case, the history of the case."

At the close of the hearing Judge McLachlan ordered that Anderson update the psychological evaluation.

On August 24, 2001, Traystman sent a facsimile to Ansell expressing surprise that she had represented to Judge Berdon and Judge McLachlan that he had had ex parte communications with Anderson. He requested a copy of the transcript that confirmed the communication and warned her that he would be filing a grievance against her should the transcript not confirm her claim. Ansell replied by facsimile the same day, stating that she did not believe Traystman's surprise and attaching a copy of the motion to preclude originally filed by Kelley. Traystman filed a grievance with the committee on September 10, 2001.

On September 14, 2001, the parties again appeared before Judge McLachlan, and Ansell once again raised the issue of ex parte communications, stating that she had the supporting transcript excerpts. The following exchange ensued:

"[Attorney Traystman]: Your Honor, I would love to see those transcripts of what attorney Ansell claims was the testimony that had to do with an affirmative finding that there was ex parte communication between myself and Dr. Anderson. Is she indicating to the court right now before you that she has transcripts that confirm that I had ex parte communication?

"The Court: Was that your claim?

"Ansell: No, Your Honor. I said that there was conflict between the parties regarding ex parte communication and that the claim was that that evaluation had been tainted."

Ansell proceeded to read from the transcript of the hearing where Kelley cross-examined Anderson, who testified that the only communication between him and Traystman concerned scheduling.

The court again asked Ansell what information Traystman improperly gave Anderson. Following Ansell's response, the court stated: "All right, and this is the last time I'm going to ask this question. What specific information did you claim Mr. Traystman improperly supplied to Dr. Anderson?" Ansell replied that her predecessor and client had initially claimed that background reports had been supplied, but that it had later been determined that those reports were given to Anderson directly by Traystman's clients. Thereupon, Traystman directed the court's attention to the fact that Ansell had indicated to Judge Berdon and to Judge McLachlan that her information on the ex parte communication came from the transcripts. The court replied, "And I've asked her that three times, and she has not — the only thing she has told me [was that] there was some dispute about information."

On November 5, 2001, the New London judicial district grievance panel found probable cause to believe that Ansell violated rules 3.1, 3.3(a)(1) and (4), 3.4(5) and 8.4(1) and (3). The reviewing committee conducted a hearing on January 10, 2002, at which Ansell, with counsel, and Traystman were present, and testimony was heard from Kelley, Ansell and Ansell's client in the family case. The reviewing committee issued its decision May 9, 2003, finding by clear and convincing evidence that Ansell had violated rules 3.3(a) (1), 3.4(5) and 8.4(3) and issued a reprimand accordingly. On June 2, 2003, Ansell filed a request for review, which was considered by the committee on June 19, 2003. The committee concluded that the reviewing committee correctly determined that Ansell had violated rules 3.4(5) and 8.4(3), but erred in finding she had violated rule 3.3(a)(1) and, accordingly, dismissed the finding as to that rule.

Ansell appealed from the committee's determination to the Superior Court. By memorandum of decision dated March 1, 2003, the court determined that it could not "find that the imposition of the reprimand was not supported by substantial evidence or involved a clearly erroneous application of law" and dismissed the appeal. This appeal followed.

"[I]n reviewing a decision of the `statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct.... Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence.... The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof....

"[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find...