Brunswick v. Statewide Grievance

• Citation: 931 A.2d 319,103 Conn.App. 601
• Decision Date: 04 September 2007
• Docket Number: No. 27629.,27629.
• Court: Appellate Court of Connecticut
• Parties: Max F. BRUNSWICK v. STATEWIDE GRIEVANCE COMMITTEE.

931 A.2d 319

103 Conn.App. 601

Max F. BRUNSWICK v. STATEWIDE GRIEVANCE COMMITTEE.

No. 27629.

Appellate Court of Connecticut.

Argued December 5, 2006.

Decided September 4, 2007.

Roger J. Frechette, New Haven, for the appellant (plaintiff).

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

FLYNN, C.J., and McLACHLAN and Gruendel, Js.

GRUENDEL, J.

Rule 3.1 of the Rules of Professional Conduct requires in relevant part that attorneys in our state "shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. . . ."¹ The defendant, the statewide grievance committee, reprimanded the plaintiff attorney, Max F. Brunswick, for violating that rule in the course of his representation of a client in an arbitration proceeding. Pursuant to Practice Book § 2-38, the plaintiff filed a petition for judicial review with the Superior Court, which dismissed the appeal. The plaintiff now challenges the propriety of that determination. We affirm the judgment of the Superior Court.

The record discloses the following facts. The plaintiff is an attorney licensed to practice law in Connecticut who represented a client in an arbitration proceeding. On January 11, 2002, an award adverse to the plaintiff's client entered.² On January 15, 2002, the plaintiff filed a motion to vacate the arbitration award that alleged, inter alia, that the arbitration award was procured by corruption, fraud, undue means or evident partiality on the part of the arbitrators.³ The court, Hon. Anthony V. DeMayo, judge trial referee, held a hearing on the motion to vacate on February 4 and 6, 2002, at the conclusion of which it denied the motion and issued sanctions against the plaintiff and his client for making allegations without reasonable cause.⁴ The court thereafter referred the matter to the defendant to investigate a possible violation of the Rules of Professional Conduct.⁵

On December 2, 2003, the New Haven judicial district grievance panel filed a decision in which it found probable cause to believe that the plaintiff had violated rules 8.4(3), 3.3(a) and 3.1 of the Rules of Professional Conduct. A three person reviewing committee subsequently conducted a hearing on the matter. In its decision, the committee found the following facts by clear and convincing evidence: "The [plaintiff] offered no evidence on the allegation relating to fraud, corruption or undue influence. The [plaintiff's] only evidence of partiality on the part of the arbitrator(s) was a fee bill from the attorney for [John L. Orsini, whose demand against the plaintiff's client was being arbitrated], which reflected a conference with the arbitrator selected by [Orsini] prior to the commencement of evidence in the arbitration. Much of the hearing before Judge DeMayo concerned another issue raised by the [plaintiff] regarding the denial of a continuance request during the arbitration. The [plaintiff] never withdrew or modified any of the allegations in the motion to vacate. In response to direct inquiries from Judge DeMayo as to the evidential basis for the allegations of fraud, corruption or undue influence, the [plaintiff] only stated that he had not yet gotten to that part of the matter. At the conclusion of the hearing on the motion to vacate, Judge DeMayo denied the motion and issued sanctions against the [plaintiff] and his client for making allegations without reasonable cause in violation of Practice Book § 10-5."

The reviewing committee found by clear and convincing evidence that the plaintiff violated rule 3.1 in two ways. It stated: "The allegation of fraud, corruption or undue influence in procuring the arbitration award was clearly frivolous, as the [plaintiff] had no evidence to support the allegation. With nothing more to go on than his client's statement . . . and with no evidence to offer in court, the [plaintiff] should have withdrawn the allegation. Certainly, by the time of the hearing on the motion to vacate, the [plaintiff] knew that he had no evidence to offer, and no way to prove, the charges he had made of serious misconduct by the arbitrators since he did not have an affidavit to support the allegation. Instead of conceding this upon direct inquiry from the court, the [plaintiff] continued to maintain the allegation despite the absence of any evidence to support it." The reviewing committee further found that "the allegation of evident partiality or corruption on the part of the arbitrator(s) also violated rule 3.1. . . . The record reflects that the only evidence presented by the [plaintiff] regarding this allegation was the fee bill from [Orsini's] attorney charging for a conference with the arbitrator [Orsini] selected. We find that this evidence, in and of itself, does not support a good faith claim of partiality on the part of the arbitrator, since there was no evidence regarding the substance of this conference."

Upon the plaintiff's request for review, the defendant affirmed the decision of the reviewing committee. The defendant concurred with the reviewing committee's findings that the plaintiff's allegation relating to fraud, corruption or undue influence and his allegation of evident partiality or corruption on the part of the arbitrators constituted violations of rule 3.1. With regard to the first allegation, the defendant stated: "The evidence in the record establishes that the only evidence the [plaintiff] had . . . was his client's statement. Although the [plaintiff] initially may have had a good faith basis to make the allegation in the motion [to vacate the arbitration award], he certainly did not have a good faith basis to maintain the allegation before the court once his client refused to supply an affidavit in support of the statement." The defendant therefore concluded that the plaintiff's violations of rule 3.1 warranted a reprimand.

Pursuant to Practice Book § 2-38, the plaintiff filed a petition for judicial review with the Superior Court. In its March 22, 2006 memorandum of decision, the court found substantial evidence to support the findings of the review committee and the conclusion that the plaintiff violated rule 3.1. It therefore dismissed the plaintiff's appeal. From that judgment, the plaintiff now appeals to this court.

I STANDARD OF REVIEW

Before considering the plaintiff's particular claims, we address the standard of review applicable to such grievance appeals. The plaintiff argues that the proper standard by which to evaluate the defendant's finding that he violated rule 3.1 is the clearly erroneous standard. Conversely, the defendant maintains that the applicable standard is the substantial evidence test.⁶ A review of the case law reveals a degree of confusion as to the appropriate standard, therefore warranting closer examination.⁷

Attorney disciplinary proceedings are "for the purpose of preserving the courts from the official ministration of persons unfit to practise in them." Ex parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 27 L.Ed. 552 (1883). As our Supreme Court explained nearly one century ago, "[a]n attorney at law admitted to practice . . . 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. As important as it is that an attorney be competent to deal with the oftentimes intricate matters which may be entrusted to him, it is infinitely more so that he be upright and trustworthy." In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914).

In Connecticut, our judges possess the "inherent authority to regulate attorney conduct and to discipline the members of the bar." Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983). They "can and ought to be [held responsible] for the fitness of those who enjoy the privileges of the legal profession under their authority and sanction." In re Peck, supra, 88 Conn. at 451, 91 A. 274. Accordingly, in exercising that responsibility, our judges "have empowered the [defendant] to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct. . . . In carrying out these responsibilities, [the defendant acts] as an arm of the court." (Citation omitted; internal quotation marks omitted.) Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990). Likewise, it is the Superior Court's inherent supervisory authority over attorney conduct that vests in it jurisdiction to review an order of the defendant. Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 232, 578 A.2d 1075 (1990).

Attorney grievance proceedings are governed by the General Statutes and the rules of practice. See General Statutes § 51-90 et seq.; Practice Book § 2-29 et seq. Those provisions provide methods of procedure that complement, but do not confine, a court's inherent power to discipline its officers. Pinsky v. Statewide Grievance Committee, supra, 216 Conn. at 233, 578 A.2d 1075; In re Peck, supra, 88 Conn. at 457, 91 A. 274.

Adopted by the judges of this state, our rules of practice expressly consider the standard of review appropriate to an appeal from the decision of the defendant. They nevertheless provide little clarity to the clouded question before us. Practice Book § 2-38(f) provides: "Upon appeal, the...