Avcollie, Application of

• Decision Date: 14 July 1993
• Citation: 637 A.2d 409,43 Conn.Supp. 13
• Court: Connecticut Superior Court
• Parties: In re APPLICATION OF Bernard F. AVCOLLIE.

Page 409

637 A.2d 409

43 Conn.Supp. 13

In re APPLICATION OF Bernard F. AVCOLLIE.

Superior Court of Connecticut,

Judicial District of Waterbury.

July 14, 1993.

Moynahan, Ruskin & Mascolo, Waterbury, for the applicant.

PELLEGRINO, SPADA and WAGNER, Judges.

The dispositive issue before this panel, raised by an application for reinstatement to the bar, pursuant to Practice Book § 36, is whether the applicant is presently fit to exercise the privileges and functions of an attorney, as an officer of the court, and as a confidential manager of the affairs and business of others entrusted to his care. The panel answers in the negative.

In resolving this issue, the panel could reasonably and logically conclude that the reasons given by the standing committee on recommendations for admission to the Connecticut bar, (committee) to support its recommendation that the application be denied, were not without merit and substance. In re Application of Koenig, 152 Conn. 125, 204 A.2d 33 (1964); Pharr v. Standing Committee on Recommendations to the Bar, 32 Conn.Sup. 183, 346 A.2d 115 (1975).

The record discloses the following relevant facts. The applicant's wife was murdered on October 29, 1975, by strangulation; her body was discovered in the family swimming pool. On November 21, 1975, the applicant was indicted for her murder. On July 21, 1977, a jury found the applicant guilty of the crime of murder. The jury verdict was set aside and a judgment of acquittal was rendered by the trial judge. The Supreme Court reversed the trial court's judgment and reinstated the jury verdict. State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980). In a subsequent appeal of the judgment on the jury verdict, the Supreme Court found that "there was sufficient evidence to permit the jury to find the defendant guilty beyond a reasonable doubt." State v. Avcollie, 188 Conn. 626, 628, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983).

The applicant was sentenced to the state prison in Somers for a minimum term of eighteen years to life. He entered prison on June 23, 1983, and, on April 11, 1989, was released on parole. On October 5, 1987, his sentence was commuted to twelve years to life imprisonment. The applicant served approximately sixty-nine months in the state prison system.

On February 13, 1985, the applicant, in response to a presentment for disbarment, stipulated to a voluntary suspension of his right to practice law. On June 25, 1990, the applicant was disbarred, in an uncontested presentment, by the Superior Court for the judicial district of Waterbury. On May 30, 1991, the applicant filed an application for reinstatement to practice law pursuant to Practice Book § 36.

The application was referred to the committee. On September 23, 1991, a hearing was conducted. On September 22, 1992, the committee issued its report recommending that the application be denied. On January 5, 1993, Chief Justice Ellen A. Peters appointed this panel to determine whether the application should be granted. Practice Book § 36. A hearing was conducted, pursuant to the appointment, on February 18, 1993.

During 1989 and 1990, the applicant was employed in realty and car care businesses. From April, 1990, to October, 1992, the applicant was office manager for the law offices of Moynahan, Ruskin and Mascolo of Waterbury. A medical disability caused his severance from the law office. He is not presently employed.

The duty of the panel is to determine "whether the committee acted fairly and reasonably or from prejudice and ill will in its consideration of the application." In re Application of Koenig, supra, 152 Conn. at 133, 204 A.2d 33. The panel "must act in the light of the report of the committee as filed and on the full transcript of the committee's hearing; and it must determine whether the [applicant] was afforded his full rights by the committee in the investigation of his application and at the committee hearing." Pharr v. Standing Committee on Recommendations to the Bar, supra, 32 Conn.Sup. at 186, 346 A.2d 115.

"The committee should ordinarily find only the ultimate facts.... The ultimate facts are reviewable by the court to determine whether they are reasonable and proper in view of the subordinate facts found and the applicable principles of law." In re Application of Koenig, supra, 152 Conn. at 132-33, 204 A.2d 33. The panel's duty is to determine whether the committee acted fairly and reasonably or from prejudice and ill will in its consideration of the application. Id. at 133, 204 A.2d 33.

The issue raised by this application is "the present fitness of the applicant for reinstatement to again exercise the privileges and functions of an attorney ... keeping, in view of his previous misconduct, his discipline therefor and any reformation of character wrought thereby or otherwise as shown by his more recent life and conduct." In re Kone, 90 Conn. 440, 442, 97 A. 307 (1916).

Disbarments are grave and serious actions performed to protect the judicial system and the public. Disbarment is the indefinite deprivation of the privilege to practice law. The disbarred attorney is expelled from his office.

Disbarment is to protect the courts from persons unfit to practice in them; it is not a measure of punishment. The purpose of disbarment is to protect the court and the public from the misconduct of untrustworthy practitioners. In re Kone, supra; In re Application of Dimenstein, 36 Conn.Sup. 41, 44, 410 A.2d 491 (1979).

"The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court." (Internal quotation marks omitted.) In re Application of Pagano, 207 Conn. 336, 339, 541 A.2d 104 (1988).

Good moral character is a necessary and proper qualification for readmission to the bar. "An applicant for readmission to the bar must be possessed of such standards of honor and honesty and have such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law." In re Application of Koenig, supra, 152 Conn. at 132, 204 A.2d 33.

"As important as it is that an attorney be competent ... it is infinitely more so that he be upright and trustworthy." In re Peck, 88 Conn. 447, 450, 91 A.274 (1914).

"[T]he ultimate burden of proving good character rests upon the applicant." In re Application of Koenig, supra, 152 Conn. at 132, 204 A.2d 33; Pharr v. Standing Committee on Recommendations to the Bar, supra, 32 Conn.Supp. at 186, 346 A.2d 115. The argument by the applicant's attorney that disbarment once imposed should be lifted unless the opponents can show acts of immorality or untrustworthiness is misplaced.

"Good moral character is a necessary and proper qualification for admission to the bar.... Proof of this is a requirement ... and the ultimate burden of proving it may properly be placed, as it is in Connecticut, on the applicant." (Citations omitted.) In re Application of Warren, 149 Conn. 266, 274, 178 A.2d 528 (1962). "In this state, the ultimate burden of proving good character rests upon the applicant." In re Application of Koenig, supra, 152 Conn. at 132, 204 A.2d 33.

"It has been the established practice for the court to decline to hear evidence on questions entrusted to bar committees." In re Application of Koenig, supra, at 133, 204 A.2d 33. "Where ... the decision called in question is within the discretion of the committee, the court reviews the committee's decision on the record of its proceedings to determine whether it has abused its discretion. The hearing is not one de novo." In re Application of Warren, supra, 149 Conn. at 273-74, 178 A.2d 528.

At the panel hearing on February 18, 1993, the applicant was represented by counsel and requested an opportunity to present evidence. Not unmindful of the constraints attendant with these hearings, the panel, to ensure every amenity of due process, nevertheless granted the applicant's request to present evidence in support of his claim of fitness.

The testimony of the eight witnesses was cumulative and not dissimilar to the evidence presented to the committee. No discrete evidence was presented to substantiate a reformation of character otherwise decimated by the murder conviction and consequent disbarment. No specific circumstances were presented to corroborate the claim of fitness and moral trustworthiness. Two witnesses were committee members whose testimony tracked their minority reports. Three witnesses were personal friends who acknowledged having minimal contacts with the applicant since his prison release, or having met with him occasionally for lunch. The remaining two witnesses met the applicant in 1990 through their affiliation with the law office. There has been little or no contact since his departure. General testimonials, in this milieu, do not reach the requisite level of refuting reasonable inferences arising from the misconduct leading to disbarment. Where the misconduct is murder, and the period of disbarment abbreviated, substantial evidence of moral trustworthiness and fitness is required for reinstatement to the bar.

The panel recognizes that, in a formal sense, the hearing before it is nonadversarial. "There are no adversary parties [to grievance proceedings] in the technical legal sense, although our reports contain cases which, in their titles, carry as parties not only the names of the petitioners [or respondents] but those of bar examining committees and grievance committees." (Internal quotation marks omitted.) In re Application of Pagano, supra, 207 Conn. at 340, 541 A.2d 104.

The panel notes, however, that prior published grievance appeals indicate the appearances of either a state's...