Cohen v. Statewide Grievance Comm.

• Decision Date: 02 July 2021
• Docket Number: SC 20356
• Citation: 339 Conn. 503,261 A.3d 722
• Parties: Debra COHEN v. STATEWIDE GRIEVANCE COMMITTEE
• Court: Connecticut Supreme Court

339 Conn. 503

261 A.3d 722

Debra COHEN

v.STATEWIDE GRIEVANCE COMMITTEE

SC 20356

Supreme Court of Connecticut.

Argued December 7, 2020

Officially released July 2, 2021^*

Debra Cohen, self-represented, the appellant (plaintiff).

Brian B. Staines, chief disciplinary counsel, for the appellee (defendant).

McDonald, D'Auria, Mullins, Ecker and Keller, Js.

D'AURIA, J.

In this certified appeal, the plaintiff, Attorney Debra Cohen, appeals from the Appellate Court's judgment affirming the trial court's dismissal of her appeal from a reprimand the defendant, the Statewide Grievance Committee, imposed on her for violating rules 3.3 (a) (1) and 8.4 (3) of the Rules of Professional Conduct.¹ On appeal, the plaintiff claims that (1) rule 3.3 (a) (1) does not apply when, as in the present case, she was at all relevant times an attorney admitted to practice in this state but was serving as a court-appointed fiduciary, (2) the defendant incorrectly concluded that she violated rule 3.3 (a) (1) by making a "false statement," and (3) the defendant incorrectly concluded that her conduct was dishonest in violation of rule 8.4 (3). We disagree and, accordingly, affirm the judgment of the Appellate Court.

The Appellate Court's decision contains the pertinent facts and procedural history, which we summarize in relevant part. See Cohen v. Statewide Grievance Committee , 189 Conn. App. 643, 646–55, 208 A.3d 676 (2019). The plaintiff was hired as a staff attorney for the Office of the Probate Court Administrator (administrator) in 2005. Her responsibilities included auditing random Probate Court files to determine whether the required accountings complied with applicable law and procedures. At the time of her hiring, the plaintiff had been serving as a court-appointed trustee for the sole beneficiary of the estate of John DeRosa, and she continued to serve in that capacity after her employment commenced.² In 2012, a few days after the plaintiff had filed a proposed periodic accounting and affidavit of fees in the DeRosa matter, the chief clerk of the Probate Court asked the chief counsel for the administrator in an e-mail whether the administrator's attorneys were permitted to serve as court-appointed fiduciaries. Chief counsel for the administrator then instructed the plaintiff to resign as trustee in the DeRosa matter.

The plaintiff filed a motion to resign as the fiduciary in the DeRosa matter on May 18, 2012. Following a hearing, the Probate Court judge, Timothy R.E. Keeney, ordered the plaintiff to file a final accounting, noting in the order that he would consider the plaintiff's motion to resign when she filed the final accounting. The plaintiff thereafter filed an "Interim Account, for Filing Purposes Only."³ Next, the plaintiff submitted a proposed final accounting, dated April 12, 2013, through her retained counsel, Attorney Timothy A. Daley. The April 12 proposed final accounting included fiduciary fees she claimed in the amount of $5980. The same day, Attorney Daley disclosed to the Probate Court that the plaintiff had failed to file income tax returns for the trust and that, as a result, the trust had incurred tax penalties in the amount of $5531.84. Attorney Daley told the Probate Court that the proposed final accounting credited and paid back the penalties incurred as a result of the plaintiff's failure to file the required tax returns.

On May 15, 2013, during a hearing before the Probate Court, the plaintiff filed an amended final accounting, which showed a reimbursement to the estate of $5531.84 for the tax interest and penalties, and a request for fiduciary fees in the amount of $5980. Following the hearing, the chief counsel for the administrator instructed the plaintiff not to charge fiduciary fees in any Probate Court matter for the time period during which she had been employed by the administrator.

On May 24, 2013, the plaintiff e-mailed the chief clerk of the Probate Court, stating that she intended to file a second amended final accounting and that "[t]he amendment will make no entry for the payment of fees for the fiduciary and will set aside a reserve for the payment of state and federal income taxes and the cost for preparing the final income tax returns."

On June 1, 2013, the plaintiff filed an amended final accounting, which, if approved, would reduce to $4283.74 the amount she was required to reimburse the estate. The plaintiff asserted that this reduction reflected that the Department of Revenue Services "had granted amnesty to [the] [e]state for the 2000–2007 tax years [and that] the value of the tax pardoned ... is $1248.10." (Internal quotation marks omitted.) Cohen v. Statewide Grievance Committee , supra, 189 Conn. App. at 648, 208 A.3d 676. The plaintiff did not include an entry for fiduciary fees in the June 1 amended final accounting.

Judge Keeney did not accept the June 1, 2013 amended final accounting. In a June 5, 2013 letter to the plaintiff, Judge Keeney questioned why she sought to reduce the reimbursement she owed the estate, noting that the actual amount paid by the estate for interest and penalties for state and federal taxes was $5531.84, regardless of whether the tax obligation itself was later reduced. Judge Keeney's letter continued: "It is duly noted that the [f]iduciary fees per [e]xhibit A of the January 1, 2012 to April 22, 2013 [a]mended [f]inal [a]ccount[ing] totaling $5980 have now been waived in the [a]mended [f]inal [a]ccount[ing] of January 1, 2012 to May 31, 2013."

On June 24, 2013, the plaintiff filed another amended final accounting. This time, the amended final accounting listed a reimbursement to the estate in the amount of $5531.84 as well as an entry for claimed fiduciary fees in the identical amount of $5531.84. Thereafter, the chief clerk of the Probate Court e-mailed the plaintiff, explaining that no hearing had yet been set because "the [j]udge still has some questions/concerns." (Internal quotation marks omitted.) Cohen v. Statewide Grievance Committee , supra, 189 Conn. App. at 650, 208 A.3d 676. On August 6, 2013, the plaintiff filed one more amended final accounting, this time removing the claimed fiduciary fees. The Probate Court approved this final accounting on September 5, 2013.

Chief disciplinary counsel at the time, Patricia A. King, filed a grievance complaint with the defendant on January 2, 2015, alleging that the plaintiff's conduct in the DeRosa matter violated numerous provisions of the Rules of Professional Conduct.⁴ The complaint alleged specifically that the plaintiff had violated rule 8.4 (3) when she "tried to substantiate her fees in the DeRosa matter by indicating to the Probate Court that her position as attorney for the [Probate Court administrator] justified, in part, her requested fee. Moreover, [the plaintiff] billed for time spent discussing the DeRosa matter with her supervisor, who was instructing her to withdraw from the matter."

A grievance panel for the Hartford and New Britain judicial districts found probable cause that the plaintiff had violated rule 1.7 (a) (2) of the Rules of Professional Conduct, and also found that the plaintiff did not violate rules 1.11, 1.3 and 8.4 (4). The panel's determination of probable cause was silent as to rule 8.4 (3). Pursuant to Practice Book § 2-35 (d),⁵ the Office of Disciplinary Counsel then filed additional allegations of misconduct. Disciplinary counsel alleged that the plaintiff's "refusal to adhere to Probate Court requests and orders" in the DeRosa matter violated rules 3.3 and 8.4 (3). The additional allegations included seventeen attached documents in support of those allegations.

After a hearing at which the plaintiff testified, a reviewing committee of the defendant concluded that the plaintiff had violated rules 3.3 (a) (1) and rule 8.4 (3). Specifically, the reviewing committee concluded: "It is clear ... that the [plaintiff] was attempting to offset the amount she owed to the estate for the income tax interest and penalties with her fiduciary fees. The [plaintiff] maintained that the request for fiduciary fees was a mistake. This reviewing committee does not find the [plaintiff's] statement credible, considering the fact that the amount of the fiduciary fees requested equaled the amount of interest and penalties owed to the estate by the [plaintiff]. Furthermore, the [plaintiff] is an experienced Probate Court attorney who clearly understood the directives of Judge Keeney. We find [that] the [plaintiff's] actions were knowing, deliberate and contrary to her representation to the court in her May 24, 2013 e-mail and June 1, 2013 accounting. Accordingly, we conclude that the amended final account[ing] filed by the [plaintiff] on June 24, 2013, constituted a knowingly false statement to the Probate Court, in violation of rule 3.3 (a) (1) of the Rules of Professional Conduct, and was dishonest, in violation of rule 8.4 (3) of the Rules of Professional Conduct." The reviewing committee reprimanded the plaintiff and ordered her to attend a continuing legal education course in legal ethics.

The defendant upheld the reviewing committee's decision after the plaintiff filed a request for review pursuant to Practice Book § 2-35 (k).⁶ The plaintiff next appealed to the Superior Court pursuant to Practice Book § 2-38, arguing in relevant part that (1) the reviewing committee's finding that the June 24, 2013 amended final accounting "constituted a knowingly false statement" to a tribunal was clearly erroneous, (2) the record did not support the reviewing committee's finding that her conduct was dishonest in violation of rule 8.4 (3), and (3) rule 3.3 is limited to attorneys engaged in an attorney-client relationship.⁷ The court, Robaina, J ., dismissed the plaintiff's appeal, determining that the reviewing committee's decision was not clearly erroneous, the record amply supported the reviewing committee's findings of fact, and the reprimand imposed fell "within proper guidelines."

The plaintiff...