Henry v. Statewide Grievance Committee

• Decision Date: 28 October 2008
• Docket Number: No. 28916.,28916.
• Citation: 111 Conn.App. 12,957 A.2d 547
• Court: Connecticut Court of Appeals
• Parties: Robert E. HENRY v. STATEWIDE GRIEVANCE COMMITTEE.

957 A.2d 547

111 Conn.App. 12

Robert E. HENRY v. STATEWIDE GRIEVANCE COMMITTEE.

No. 28916.

Appellate Court of Connecticut.

Argued April 22, 2008.

Decided October 28, 2008.

Susan L. Miller, West Hartford, with whom, on the brief, was Teresa O'Connell, for the appellant (plaintiff).

Mark A. Dubois, chief disciplinary counsel, for the appellee (defendant).

DiPENTIMA, HARPER and LAVERY, Js.

HARPER, J.

The plaintiff, Robert E. Henry, a member of the bar of this state, appeals from the judgment of the trial court dismissing his appeal from the reprimand issued to him by the reviewing committee of the defendant, the statewide grievance committee, for violating rules 3.3(a)(1) and 8.4(4) of the Rules of Professional Conduct. The plaintiff claims that the court improperly concluded that (1) the reviewing committee did not misapply the law when it determined that he had violated rules 8.4(4) and 3.3(a)(1), (2) the defendant presented sufficient evidence of violations of rules 3.3(a)(1) and 8.4(4), and (3) the reviewing committee did not rely on irrelevant facts in reaching its conclusions. We affirm the judgment of the trial court.

The following relevant facts are largely undisputed. Nurul Huq, a mail carrier for the United States Postal Service, allegedly was attacked and injured by a dog while delivering mail in the course of his employment. Huq filed a workers' compensation claim for this work-related injury. In connection with this claim, and at the request of Huq's employer, Philip A. Micalizzi, Jr., a physician, performed an independent medical examination of Huq. Huq later filed a negligence action against the dog's owners, Joseph Collins and Judy Collins. The Collinses retained the plaintiff to represent them in that personal injury action.

On January 8, 2004, Huq authorized the plaintiff to obtain his medical records. Later that day, the plaintiff subpoenaed Micalizzi to appear at a deposition on January 22, 2004, scheduled to take place at Micalizzi's office, and to produce at the deposition his entire file concerning the treatment of Huq. The plaintiff also sent Micalizzi a letter that day advising him that in lieu of appearing at the deposition, Micalizzi could produce the requested documents prior to the deposition date.

During the next two weeks, the plaintiff contacted Micalizzi's office on a repeated basis. Although the parties dispute precisely what transpired, as a result of these contacts, the plaintiff came to believe that Micalizzi would not be producing the requested documents,¹ nor would he be attending the deposition.² Regardless, the January 22, 2004 deposition did not occur. The plaintiff thereafter informed Micalizzi that in the absence of Micalizzi's turning over the requested documents, the court would issue a capias.

On February 10, 2004, the plaintiff presented to the Superior Court an application for a capias. He also testified before the court that same day. The following colloquy ensued:

"The Court: [Y]ou had subpoenaed a doctor that didn't show up for a deposition?

"[The Plaintiff]: That is correct, Your Honor.

"The Court: Okay. You—you're asking for a capias?

"[The Plaintiff]: I am, Your Honor.

"The Court: Okay. You may proceed.

"[The Plaintiff]: Yes, Your Honor. On January 9, process was served on [Micalizzi]....

* * *

"[The Plaintiff]: In-hand service for a records deposition that was to occur on January 22. [Micalizzi] did not appear for the deposition. He did not provide the records in lieu thereof. I've had numerous telephone conversations with his office in the interim, advising him that service had been made, he had an obligation to appear or, in lieu of, I would accept the records. That has not occurred at this point." The court then issued a capias, which was executed on February 17, 2004. Micalizzi subsequently filed a complaint with the defendant, which was then referred to the local grievance panel (local panel).³

On January 31, 2006, the local panel concluded that there existed probable cause that the plaintiff had violated rules 3.3(a)(1),⁴ 4.4(a)⁵ and 8.4(4).⁶ On August 11, 2006, the reviewing committee of the defendant issued a written decision in which it found that the plaintiff had violated rules 3.3(a)(1) and 8.4(4) by clear and convincing evidence and reprimanded the plaintiff.⁷ On September 5, 2006, the plaintiff, pursuant to Practice Book § 2-35(g), requested a review of the decision by the defendant. On September 22, 2006, the defendant affirmed the decision of the reviewing committee. The plaintiff appealed to the trial court, which rejected his claims and affirmed the decision of the defendant. This appeal followed.

I

The plaintiff first claims that the court improperly determined that the reviewing committee did not misapply the law in finding that he violated rules 8.4(4) and 3.3(a)(1). We will address each component of the plaintiff's claim in turn.

Before we do so, however, we first note that "in reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct." (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, 245 Conn. 277, 290, 715 A.2d 712 (1998).

A

We first address the plaintiff's claim that the court improperly determined that the reviewing committee did not apply an improper legal standard in concluding that he had violated rule 8.4(4). In support of this claim, the plaintiff contends that the reviewing committee's decision states that "[t]he [plaintiff's] misrepresentation to the court was prejudicial to the administration of justice in violation of rule 8.4(4).... The [plaintiff's] misrepresentation led to the issuance of a capias...." The plaintiff asserts that "misrepresentation is not the standard. `Dishonesty, breach of trust, or serious interference' is the standard.... Misrepresentation is not equal to dishonesty, breach of trust, serious interference with the administration of justice, or intentional conduct."⁸ (Citations omitted.) We conclude that because the plaintiff has quoted out of context this "standard" that he believes governs the application of rule 8.4(4), his argument that the committee applied an incorrect "standard" in its analysis of rule 8.4(4) is misplaced.

A review of rule 8.4 and its commentary will serve to illuminate our conclusion. Rule 8.4 provides in relevant part that "[i]t is professional misconduct for a lawyer to ... (2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects ... (4) Engage in conduct that is prejudicial to the administration of justice ...."

The commentary to rule 8.4 then provides in relevant part: "Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category." (Emphasis added.)

It is clear to us that the aforementioned commentary section applies to circumstances in which a professional misconduct prosecution has been initiated in response to a criminal act committed by an attorney. Furthermore, rule 8.4(2), by its plain language, is the rule pursuant to which a professional misconduct prosecution would be initiated in response to a criminal act committed by an attorney. The "standard" contained in this commentary section would logically, therefore, apply to prosecutions convened pursuant to rule 8.4(2). Consequently, we conclude that the plaintiff is incorrect in his assertion that rule 8.4(4) violations must involve "dishonesty, breach of trust [or] serious interference with the administration of justice...."

B

We next turn to the plaintiff's claim that the court improperly determined that the reviewing committee did not apply an improper legal standard in concluding that he had violated rule 3.3(a)(1).

The reviewing committee, in its decision, found that "[t]he [plaintiff] knowingly made a false statement of material fact to the court in violation of rule 3.3(a)(1) by representing to the court that [Micalizzi] did not appear for the January 22, 2004 deposition. [Micalizzi] was in his office on January 22, 2004, the date and place of the scheduled deposition.... Neither the [plaintiff] nor a reporter appeared to take [Micalizzi's] deposition on January 22, 2004."

Rule 3.3(a) provides: "A lawyer shall not knowingly ... (1) [m]ake a false statement of fact or law to a tribunal...." The commentary to rule 3.3 then provides in relevant part that "an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry."

The plaintiff asserts that rule 3.3(a)(1) provides two distinct standards. He argues that the reviewing committee improperly assessed the alleged violation of rule 3.3(a)(1) pursuant to the standard contained in the rule—whether the lawyer knowingly made a false statement—as opposed to the standard contained in the commentary to the rule—whether the lawyer believed his statement to be true on the basis of a reasonably diligent inquiry. The plaintiff then contends that "since the [reviewing] committee used the incorrect standard to begin with, any legal conclusion the [reviewing] committee reache[d] cannot be supported."

The plaintiff, in making this argument, is in essence contending that the defendant, in prosecuting an alleged violation of rule 3.3(a)(1), is required to...