O'Brien v. Superior Court, No. 26361.

• Court: Connecticut Court of Appeals
• Writing for the Court: Peters
• Citation: O'Brien v. Superior Court, 939 A.2d 1223, 105 Conn.App. 774 (Conn. App. 2008)
• Decision Date: 12 February 2008
• Docket Number: No. 26361.
• Parties: John F. O'BRIEN v. SUPERIOR COURT, Judicial, District of Hartford.

939 A.2d 1223

105 Conn.App. 774

John F. O'BRIEN v. SUPERIOR COURT, Judicial, District of Hartford.

No. 26361.

Appellate Court of Connecticut.

Argued September 19, 2007.

Decided February 12, 2008.

John F. O'Brien, pro se, the plaintiff in error.

Peregrine Zinn-Rowthorn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, Gregory T. D'Auria, associate attorney general, and Philip Miller, assistant attorney general, for the defendant in error.

DiPENTIMA, McLACHLAN and PETERS, Js.

PETERS, J.

The principal issue in this writ of error is whether the trial court properly disciplined a defense attorney who filed a postacquittal motion for a judicial inquiry into possible tampering with evidence consisting of a communication between his client and her prior counsel. The trial court faulted the attorney for persisting in his claim that the attorney-client privilege had not been waived at the criminal trial and for calling for a grand jury investigation without sufficient evidence to support a good faith belief of criminal misconduct by a governmental entity. Although we agree with the court's finding that the attorney violated rules 3.1 and 3.3 of the Rules of Professional Conduct, we do not agree with its findings that he violated rules 1.2 and 8.4. Therefore we deny the writ in part and grant it in part.

The plaintiff in error, John F. O'Brien (plaintiff), an attorney, filed a writ of error on December 23, 2003, to challenge the finding of the trial court, Miano, J., that the plaintiff had violated rules 1.2, 3.1, 3.3 and 8.4 of the Rules of Professional Conduct, and to seek review of the sanctions imposed on him.¹ The trial court maintains that, after a hearing, it properly found, by clear and convincing evidence, that the plaintiff had failed to counsel his client properly, had filed a motion for investigation without a good faith belief that a crime had been committed by a government entity, had misstated the law and had engaged in conduct prejudicial to the administration of justice. The plaintiff's writ challenges both the court's underlying findings and the propriety of the sanctions imposed on the plaintiff.

The record discloses the following relevant facts and procedural history. From June 25 to July 9, 2003, the plaintiff was trial counsel for T,² whom the state had charged with two counts of custodial interference in the first degree; see General Statutes § 53a-97;³ because of her unauthorized removal of her children from this state. T's turbulent relationship with her former spouse was a recurring theme at the trial.

During the state's cross-examination of. T on July 1, 2003, the prosecutor, assistant state's attorney David L. Zagaja, asked T if she recalled having communicated with one of her former attorneys about her "desires" in her dissolution action. T responded: "There were numerous communications. I don't know what you're referring to." The prosecutor then asked T, while reading from a document: "Do you recall telling [your attorney], `now that I have a boyfriend with more money than him at First Financial Resources in Topsfield, [Massachusetts], I want to take all his money and leave him with nothing. No house, no kids, no money, after f___ing all of Singapore.' Do you recall communicating that to [your attorney]?" T responded: "No, that was definitely not my communication to her. That—those are [my former husband's] words." The prosecutor then disclosed that he had been reading from a copy of an e-mail communication, dated January 29, 1999, between T and her former attorney in her dissolution action.

Upon reviewing the document, T confirmed that it was a communication with her former attorney, but continued to insist that she was not the declarant of the passage that the prosecutor had read aloud. She opined: "There's some piece here missing or something. I don't know why ... I don't know if [my attorney] cut in between something...." The prosecutor then offered the e-mail into evidence and provided T's attorney, the plaintiff here, with an opportunity to examine it. After the examination, the plaintiff informed the court that he had "[n]o objection" to its admission. The court then entered the document into evidence as state's exhibit eleven,

On the next day of trial, during the plaintiff's redirect examination of T, the plaintiff, for the first time, described state's exhibit eleven as a "confidential, privileged message" between T and her former attorney. Noting that the plaintiff had not protested the entry of the document into evidence on the previous day, the prosecutor immediately objected to this characterization. In response, the plaintiff withdrew the question.

T then testified that, upon looking through her records the previous evening, she had found an original copy of state's exhibit eleven. This copy, entered into evidence as defendant's exhibit F, plainly demonstrated that several lines of text were missing from the state's version of the e-mail, resulting in a gap in the communication immediately preceding the vitriolic passage that had been quoted in court the day before. T testified that exhibit F, by filling in the gap, demonstrated that she had been reciting her former husband's words to her attorney, rather than declaring them as her own position. At this juncture, no question was raised by either counsel or by the court as to who had redacted the e-mail or how it had come into the state's file.

On July 9, 2003, after T's acquittal of the criminal charges against her, she directed the plaintiff "to move the [trial] court to make an inquiry into exactly how the state's attorney came to possess the document that he introduced as Exhibit [eleven] in the trial ... and who altered it ..."⁴ The plaintiff made an oral motion for the court to apply for an investigation⁵ and then filed a written motion entitled, "Motion for the Court's Application for an Investigation." The written motion alleged that exhibit eleven was "[a] [n]ever previously disclosed by the state to the defendant or her trial counsel that the state possessed the privileged document and intended to use it against her at trial; [b] [a]bsolutely protected by the unwaived attorney-client privilege, between the defendant and her former divorce attorney ... [c] [u]nlawfully and/or unethically obtained by the state without the defendant's knowledge or consent; and [d] [a]ltered and fabricated in a substantial, material and prejudicial manner by the deletion or redaction of an entire paragraph of material text from the first page." Although the motion primarily called on the court to apply for an investigation pursuant to General Statutes § 54-47c,⁶ it also requested that the court "take any other measures it deems in accord with law and prudence to protect the integrity of the Court and the judicial process."

On July 11, 2003, the trial court conducted its first hearing on the plaintiff's motion. The court faulted the plaintiff for his failure to file affidavits in support of his motion and ordered him, and the prosecutor, to fill this procedural gap. Anticipating what these affidavits might contain, the court divided the plaintiff's motion into two specific assertions of misconduct: an alleged violation of the attorney-client privilege and a request for the court's filing of an application for an investigation under § 54-47c to inquire into possible evidence tampering. With respect to the first assertion, the plaintiff admitted that he was unprepared to argue the attorney-client privilege claim. With respect to the second, the plaintiff expressly acknowledged that an application for a § 54-47c investigation would be unwarranted if the prosecutor were to submit an affidavit demonstrating that he had received state's exhibit [eleven] in its altered state.⁷

The affidavits subsequently submitted by the prosecutor and the plaintiff disagreed about the provenance of exhibit eleven. The prosecutor's affidavit asserted that he had received exhibit eleven in its redacted version from T's former husband on June 20, 2003, and that he had represented finding the e-mail in the former marital residence after T had vacated it on May 4, 2000. The affidavits filed by the plaintiff and T denied that T had left any communication with her attorney at the family residence and surmised that someone other than her former husband had altered the e-mail. The plaintiff's affidavit also reiterated his contention that the e-mail was "privileged" and confidential.⁸

On September 17, 2003, the trial court issued its memorandum of decision denying the plaintiff's motion for an investigation. With respect to the alleged violation of the attorney-client privilege, the court ruled that, even if the contents of exhibit eleven had fallen within the privilege, the plaintiff and T had waived the privilege by failing to claim it when the e-mail was first introduced into evidence. With respect to the request for a § 54-47c investigation, the court ruled that "no valid reasons" and "no empirical facts" had been presented that would afford the court "a reasonable belief that the assistant state's attorney [or] any other attorney or member of a governmental agency either [had] violated a privilege or had knowledge of, or participated in, the purported deletion of the subject five lines from state's exhibit [eleven]."

The court then initiated the proceedings that gave rise to the present writ of error. The court stated that "inasmuch as counsel for the acquitee has made no effort to even articulate some semblance of a basis for either claim, the question then becomes one of whether counsel has made his claims in good faith and has honored his obligations to the court." The court concluded it had "reason to believe" that the plaintiff had violated rules 1.2, 3.1, 3.3 and 8.4 of the Rules of Professional Conduct and issued an order continuing the matter to provide the plaintiff an opportunity to be...