Briggs v. McWeeny

Decision Date21 May 2002
Docket Number(SC 16515).
CourtConnecticut Supreme Court
PartiesCAROLE W. BRIGGS v. HONORABLE ROBERT F. MCWEENY.

Sullivan, C. J., and Borden, Norcott, Palmer and Zarella, Js. Ralph G. Elliot, for the plaintiff in error.

Eliot D. Prescott, assistant attorney general, with whom were Jane R. Rosenberg, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the defendant in error.

Opinion

ZARELLA, J.

This case is before us on a writ of error brought by the plaintiff in error, Carole W. Briggs (plaintiff), an attorney. The plaintiff claims that the defendant in error, Honorable Robert F. McWeeny,1 improperly found, in the absence of clear and convincing evidence, that the plaintiff had violated subdivisions (1) and (6) of rule 3.42 of the Rules of Professional Conduct3 and that the trial court's imposition of a sanction upon the plaintiff violated her due process rights under the state and federal constitutions. The plaintiff seeks reversal of the trial court's findings of misconduct and the order disqualifying her from representing Amity Regional School District Number 5 (Amity) in litigation arising from a school renovation project (renovation project). We find no error.

The record discloses the following procedural history and relevant facts. In the early 1990s, Amity undertook an extensive renovation of Amity Regional Senior High School (high school) in Woodbridge and hired Atlas Construction Company (Atlas) as the general contractor for the renovation project. The renovation project was substantially completed in 1995. Thereafter, in 1997, Atlas brought an action against Amity seeking damages in excess of five million dollars. Amity, in turn, filed an action against Atlas and several other contractors that had worked on the renovation project, alleging breach of contract and negligence.4 The plaintiff represented Amity in each of those actions before the trial court, McWeeny, J.5

In 1999, Atlas served Amity with a set of interrogatories in connection with the Amity-Atlas litigation. Those interrogatories included a request to identify all reports, analyses and tests related in any way to the exterior wall system, fungus or mold at the high school. The plaintiff responded to the interrogatories and signed them without objecting to that specific request.

Thereafter, in August, 2000, Amity undertook a repair and maintenance project at the high school and awarded various service contracts in connection with the project. Amity did not award a contract for miscellaneous general carpentry services, however, owing to the fact that Amity had received no formal bids for that particular contract. Paul DiSpazio, president of DiSpazio Corporation, informed Gerry Keane, the on-site property manager at the high school,6 that he was interested in the contract. Vincent Grignano, Amity's director of financial services, awarded the contract to DiSpazio in August, 2000. Under the contract, DiSpazio was responsible for replacing sagging tiles in the high school's suspended ceiling system.

At an August 16, 2000 meeting, at which the plaintiff was present, DiSpazio sought and obtained Keane's authorization to obtain an engineering study on the ceiling problems at the high school. DiSpazio later confirmed Keane's authorization in writing. DiSpazio hired Martin Benassi, an architect, to conduct the study. In his report, Benassi noted sagging and molding ceiling tiles and the presence of water stains. Benassi attributed the conditions to the maintenance practices and humidity levels at the high school. These conclusions contradicted the opinions of Amity's expert witnesses and, thus, were harmful to Amity's claims in the Amity-Atlas litigation.

Sometime after receiving Benassi's report, DiSpazio forwarded it to Keane. At an August 29, 2000 meeting of Amity's facilities committee, Keane distributed copies of Benassi's report to committee members, the plaintiff and Eileen Miller, the plaintiff's paralegal. Miller reviewed the report and, following a discussion between the plaintiff and Miller, the plaintiff collected and retained all of the distributed copies. The plaintiff informed Keane that she was very upset about the existence of Benassi's report inasmuch as it would have a detrimental effect on Amity's position in the Amity-Atlas litigation. She also indicated that the report would have a financially adverse impact on Amity.

On September 12, 2000, the plaintiff held a meeting to discuss Benassi's report, at which Keane, DiSpazio, Miller, and Russell Faroni, chairman of Amity's facilities committee, were present. The plaintiff asked DiSpazio to withdraw the report. DiSpazio refused and essentially stated that he would not participate in a cover-up. In response to the plaintiff's question whether Benassi's report was merely a draft, DiSpazio indicated that the report was not a draft, but a final report. Thereafter, the meeting evolved into a heated exchange between the plaintiff and DiSpazio. The plaintiff instructed DiSpazio to treat their exchange as confidential, and DiSpazio told her to contact his attorney.

After the meeting, DiSpazio met with his attorney, Joseph Yamin, to discuss what had transpired. Yamin thereafter wrote a letter to Grignano, in which he stated: "This morning Mr. DiSpazio met with [the plaintiff] to discuss the [p]roject. Apparently, [the plaintiff] is upset with Mr. Benassi's report and the work being performed by DiSpazio. Obviously, Mr. Benassi has identified certain safety and aesthetic issues, which DiSpazio is addressing at the [s]chool. In no way . . . did Mr. Benassi or Mr. DiSpazio intend to address or interfere with any issues presently being litigated. Yet, similarly, DiSpazio does not intend to instruct Mr. Benassi to modify his report nor will [he] release the report to any third parties unless lawfully required to do so."

On September 14, 2000, the plaintiff spoke with Yamin by telephone and demanded that DiSpazio withdraw Benassi's report because it was inconsistent with two other expert reports in the plaintiff's possession. The plaintiff further directed DiSpazio to have Benassi draft a revised report and submit it to her for approval before submitting it to Amity. Yamin informed the plaintiff that DiSpazio would not withdraw Benassi's report.

Thereafter, in a September 20, 2000 letter addressed to DiSpazio and Yamin, the plaintiff advised DiSpazio and Yamin that Benassi's report had been disclosed anonymously to the press notwithstanding Yamin's earlier assurance that DiSpazio would not release the report unless lawfully required to do so. The plaintiff wrote: "I made it very clear in our meeting that [Benassi's report] was not to be discussed with anyone who was not at the meeting." In the letter, the plaintiff sought confirmation from Yamin that DiSpazio would act in a manner that would protect Amity's right of confidentiality. In closing, the plaintiff informed Yamin and DiSpazio that, if she did not receive the requested assurance by the end of the business day, Amity would resort to the legal process to protect its interests.

On October 11, 2000, the New Haven Register published an article in which Benassi's report was discussed. Immediately thereafter, counsel representing Atlas requested copies of the report and any correspondence between the plaintiff and the Amity school board concerning the report.7 The following day, the plaintiff responded that she would disclose "all unprivileged relevant documents . . . in a timely manner." On October 16, 2000, Atlas' counsel sought to discover Benassi's report and any related notes or correspondence by issuing a notice of deposition for October 19, 2000, to DiSpazio Corporation's records custodian. On October 18, 2000, the plaintiff moved to quash the notice of deposition and sought a protective order. The plaintiff thereafter withdrew her motions, however, after learning that DiSpazio Corporation did not possess notes of the September 12, 2000 meeting. Yamin released Benassi's report to Atlas' counsel on October 20, 2000.

At an October 30, 2000 hearing on Amity's application for a prejudgment remedy in the Amity-Atlas litigation, Atlas, among others, notified the trial court of the plaintiff's efforts to suppress and to alter Benassi's report. After learning of these allegations, the trial court scheduled a hearing on the matter. In its order regarding the hearing on the allegations of misconduct, the trial court identified subdivisions (1), (2) and (6) of rule 3.4 of the Rules of Professional Conduct as relevant to the inquiry. The order further provided that the trial court would "entertain any motions relating to th[e] proceeding, including motions for sanctions, penalty, nonsuit or other disciplinary action against Amity and/or its counsel, [the plaintiff]." Subsequent to the issuance of the foregoing order, the plaintiff disclosed Benassi's report on December 6, 2000, as part of the scheduled document production in the Amity-Atlas litigation.

The trial court held the hearing on the allegations of misconduct on December 12 and 13, 2000, and January 29, 2001. Following the hearing, at which the trial court received extensive testimonial and documentary evidence, the court issued a thorough twenty-four page memorandum of decision in which it concluded that the plaintiff had violated rule 3.4 (1) and (6) of the Rules of Professional Conduct, but that the evidence was insufficient to support a finding of a violation of rule 3.4 (2).

The trial court concluded, with respect to rule 3.4 (1), that Benassi's report was a document with potential evidentiary value because the existence of mold on the ceiling tiles and cause thereof were significant issues in the Amity-Atlas litigation. The trial court rejected the plaintiff's characterization of her efforts to have Benassi's report withdrawn as an attempt to shield Amity...

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