Marino v. Statewide Grievance Comm.
| Citation | 189 Conn.App. 7,206 A.3d 198 |
| Decision Date | 02 April 2019 |
| Docket Number | AC 40274 |
| Court | Connecticut Court of Appeals |
| Parties | Debra B. MARINO v. STATEWIDE GRIEVANCE COMMITTEE |
189 Conn.App. 7
206 A.3d 198
Debra B. MARINO
v.
STATEWIDE GRIEVANCE COMMITTEE
AC 40274
Appellate Court of Connecticut.
Argued December 4, 2018
Officially released April 2, 2019
Barbara M. Schellenberg, Orange, with whom, on the brief, was David B. Zabel, Bridgeport, for the appellant (plaintiff).
Leanne M. Larson, assistant chief disciplinary counsel, with whom, on the brief, was Beth L. Baldwin, assistant chief disciplinary counsel, for the appellee (defendant).
Alvord, Prescott and Eveleigh, Js.
ALVORD, J.
The plaintiff, Debra B. Marino, an attorney, appeals from the judgment of the trial court dismissing her appeal from the sanctions imposed by the reviewing committee of the defendant, the Statewide Grievance Committee, for violating rule 4.4 (a) of the Rules of Professional Conduct.1 The plaintiff claims that the court improperly upheld the defendant's conclusion that the motion for a capias that she filed while representing a client in a family proceeding had no substantial purpose other than to embarrass or burden the complainant, Melissa Mathison.2 We agree with the plaintiff and reverse the judgment of the trial court.
The following relevant facts largely are undisputed. The plaintiff represented the complainant's former husband, Jeffrey Samoncik, in connection with postjudment proceedings following the dissolution of the Samonciks' marriage on April 24, 2009. In September, 2013, the complainant filed a motion to modify child support. On March 15, 2015, the complainant filed a self-represented appearance in the matter. A hearing on the complainant's motion for modification was scheduled for August 4, 2015. The discovery process in connection with the complainant's motion for modification had been somewhat prolonged and engendered communications between the plaintiff and the complainant that were sometimes strained. They exchanged a series of e-mails that addressed the issue of conducting a deposition of the complainant prior to the scheduled August hearing.
The plaintiff noticed the complainant's deposition for July 7, 2015. On July 3, 2015, a marshal served a subpoena duces tecum on the complainant with respect to the noticed deposition. That same day, the complainant e-mailed the plaintiff and informed her that she would not be attending the scheduled deposition. The complainant's July 3, 2015 e-mail reads as follows:
"Please find motions that were recently filed by me.
"Please make note that I will be unable to attend a deposition on July 7. My resources are limited for child care costs.
"In regards to the deposition items, 1-8 are erroneous requests as this information has been supplied to your office on more than one occasion and there are no new documents to produce. Items 9-11 are irrelevant requests and have no bearing on this case. I will be filing an objection to your deposition.
"Have a great weekend."
A few minutes later, the plaintiff responded: "You will need to appear. I'm proceeding." The complainant immediately e-mailed the following response: "I will not be attending on the 7th. Proceed as you please."
On July 7, 2015, the plaintiff commenced the deposition for the purpose of noting on the record that the complainant had failed to appear. That same day, the plaintiff prepared and filed a "Postjudgment Motion/ Application for Capias/Civil Arrest Warrant." In her motion, the plaintiff made the representation that the complainant "was duly subpoenaed for a deposition [and] ... failed to appear for said deposition in violation of a valid subpoena duces tecum and no motion to quash or for protective order was filed." In addition to requesting that the complainant pay for the costs of the subpoena, court reporter, and counsel fees, the plaintiff moved that the complainant "be precluded
from proceeding with her motions until she appears for a deposition."
On July 6, 2015, the day before the scheduled deposition, the complainant filed a motion for a protective order, requesting that the court issue an order preventing the deposition from taking place for the following reasons: (1) the complainant was not given sufficient notice to schedule the deposition at a mutually convenient date and time; (2) the complainant was not given sufficient notice to allow her to gather the documents requested by the plaintiff; (3) the documents requested by the plaintiff already had been produced or were the subject of objections filed by the complainant; and (4) the complainant's discovery objections should be resolved by the court prior to her deposition.
The plaintiff claimed that she did not receive a copy of the complainant's motion for a protective order until July 8, 2015, which was one day after she had filed her motion for a capias. She also claimed that, historically, the complainant e-mailed her copies of the pleadings that she filed with the court, but that she did not do so with her motion for a protective order.
In response, the complainant contended that her husband, Michael Mathison, after filing the motion for a protective order at the courthouse on July 6, 2015, drove to the plaintiff's office and handed a copy of that pleading to a woman he identified as Rose Rodriguez, the plaintiff's legal assistant. Rodriguez, however, claimed she had been on vacation on the day in question. At that time, the only other person who worked in the plaintiff's office was Danielle Vailonis, and Vailonis denied ever receiving any documents from Mathison.
The court, Malone, J. , held a hearing on the plaintiff's motion for a capias, the complainant's
objection to that motion, and other outstanding motions on July 27, 2015. At the beginning of the hearing, the plaintiff stated that
the complainant's motion to modify child support was scheduled for a hearing on August 4, 2015. She represented that she needed information from the complainant in order to prepare adequately for the upcoming hearing on the complainant's motion scheduled for the following week. She claimed that she had tried to schedule the complainant's deposition twice before, unsuccessfully, and that the complainant would not provide her with alternate dates and times. The plaintiff requested that the court issue a capias and then stay its execution to afford the complainant the opportunity to appear at the plaintiff's office for a deposition two days later, Wednesday at 2 p.m. The plaintiff further stated: "If she can't do Wednesday at 2 [p.m.], I'm happy to do it at 3 [p.m.]. I'll do it at 4 [p.m.]. I'll even do it after five o'clock if that's more convenient for her but I want to take her deposition." The complainant responded that she could not attend a deposition on the proposed date because she "would have to secure child care. I don't know. I have a special needs child and it's very hard. It's very difficult for me." She did not suggest an alternate date. The court ruled: "It's no problem. Until you can agree to a notice for a deposition, the hearing next week is off."
Five days prior to the hearing before Judge Malone, the complainant filed a grievance complaint with the defendant on July 22, 2015. On September 25, 2015, the Ansonia-Milford judicial district grievance panel filed a determination that there was probable cause that the plaintiff violated rules 4.4 (a) and 8.4 (4)3 of the Rules of Professional Conduct. On February 10, 2016, a three person reviewing committee conducted a hearing on the matter. In its decision dated April 15, 2016, the reviewing committee found the following facts by clear
and convincing evidence: "The [plaintiff] represented the [c]omplainant's ex-husband in a dissolution of marriage proceeding. A judgment of dissolution entered on April 24, 2009, after an uncontested hearing. In September of 2013, the [c]omplainant filed a [postjudgment] motion to modify child support. On July 3, 2015, the [c]omplainant was served with a subpoena duces tecum for a July 7, 2015 deposition at the [plaintiff's] law office. The [c]omplainant was a pro se party at the time she was served with the subpoena. On July 3, 2015, the [c]omplainant advised the [plaintiff] that she was unable to appear for the July 7, 2015 deposition and that she would be filing an objection. The [plaintiff] declined to reschedule the deposition.
"On July 6, 2015, the [c]omplainant filed an [o]bjection and a [m]otion for [p]rotective [o]rder to prevent the deposition from taking place on July 7, 2015. The [c]omplainant did not appear at the July 7, 2015 deposition. The deposition went forward. Thereafter on that same day, the [plaintiff] filed a [m]otion for [c]apias in connection with the subpoena and the [c]omplainant's failure to appear at the deposition. The [plaintiff] did not check with the [c]ourt or the [c]ourt's docket to see whether the [c]omplainant had filed a [m]otion for [p]rotective...
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TABLE OF CASES
...(2012) 6-3 Marciano v. Kraner, 126 Conn. App. 171, cert. denied, 300 Conn. 922 (2011) 8-2:2.2 Marino v. Statewide Grievance Committee, 189 Conn. App. 7 (2019) 4-3:2 Markey v. Santangelo, 195 Conn. 76 (1985) 12-4 Marsh, Day & Calhoun v. Solomon, 204 Conn. 639 (1987) 1-8:7.8, 1-11:2, 11-4 Mar......
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2019 Appellate Review
...Conn. App. 353, 210 A.3d 586, cert, granted, 333 Conn. 914, 215 A.3d 1211 (2019). [130] 190 Conn. App. 462, 211 A.3d 122 (2019). [131] 189 Conn. App. 7, 206 A.3d 198 (2019). --------- ...
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CHAPTER 4 - 4-3 RULE 8.4: THE "CATCHALL"
...Code of Professional Conduct which prohibits the same conduct proscribed in Rule 8.4(3)).[43] Marino v. Statewide Grievance Committee, 189 Conn. App. 7, 22-23 (2019).[44] Conn. Rule Prof'l Conduct R 1.10(a) ("While lawyers are associated in a firm, none of them shall knowingly represent a c......
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CHAPTER 3 - 3-3 RESPECT FOR THE RIGHTS OF THIRD PARTIES
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