Notopoulos v. Statewide Grievance Committee, 17341.

• Decision Date: 14 February 2006
• Docket Number: No. 17341.,17341.
• Citation: 277 Conn. 218,890 A.2d 509
• Court: Connecticut Supreme Court
• Parties: Joseph J. NOTOPOULOS v. STATEWIDE GRIEVANCE COMMITTEE.

890 A.2d 509

277 Conn. 218

Joseph J. NOTOPOULOS v. STATEWIDE GRIEVANCE COMMITTEE.

No. 17341.

Supreme Court of Connecticut.

Argued October 25, 2005.

Decided February 14, 2006.

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Joseph J. Notopoulos, pro se, the appellant (plaintiff).

Christopher L. Slack, assistant bar counsel, for the appellee (defendant).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ and ZARELLA, Js.

SULLIVAN, C.J.

The plaintiff, Joseph J. Notopoulos, appeals following our grant of certification to appeal from the judgment of the Appellate Court affirming the trial court's judgment in favor of the defendant, the statewide grievance committee (committee).¹ The committee had reprimanded the plaintiff after he wrote a letter accusing a Probate Court judge of, inter alia, extorting money. The plaintiff appealed from the reprimand to the trial court, which dismissed the appeal in part and sustained the appeal in part. The plaintiff claims on appeal that the Appellate Court, in affirming the trial court's judgment, improperly concluded that the committee reasonably could have found by clear and convincing evidence that the plaintiff had violated rules 8.2(a)² and 8.4(4)³ of the Rules of Professional Conduct. He further claims that the committee's actions violated his first and fourteenth amendment rights under the United States constitution. We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. "The plaintiff, an attorney, filed an application with the Probate Court for the district of West Hartford seeking appointment as the conservator of his mother's estate and person. The court, Berman, J., appointed the plaintiff as conservator of his mother's estate, Denny Fuller as conservator of her person and Carolyn Levine to investigate her care and financial assets. The plaintiff had many disagreements with Judge Berman, including a disagreement regarding the fees of Levine and Fuller and one regarding a do not resuscitate order issued to Fuller. On May 29, 1999, the plaintiff's mother died, and the plaintiff and his brother were appointed coexecutors of her estate. Thereafter, the plaintiff claimed that he did not receive timely notice of the probate decree closing his mother's estate. The plaintiff wrote a letter to Renee Bradley, a member of the court staff, and sent copies of this letter to his brother and his mother's physician.⁴

"Bradley forwarded this letter to Judge Berman, who then filed a complaint with the committee, claiming that the plaintiff `attacked [him] and [his] court in a fashion that violates the spirit and letter of the Rules of Professional Conduct.' The matter was referred to the grievance panel for the Hartford-New Britain judicial district, which found probable cause that the plaintiff violated rules 3.5, 8.2 and 8.4 of the Rules of Professional Conduct. At a hearing conducted by a reviewing committee, the plaintiff testified and presented evidence, but Judge Berman did not attend, and the committee did not present any additional evidence or call any witnesses. On February 22, 2002, the reviewing committee issued a decision reprimanding the plaintiff, finding, by clear and convincing evidence, that he violated rules 3.5(3), 8.2(a) and 8.4(4) of the Rules of Professional Conduct. On April 18, 2002, this decision was affirmed by the entire committee.

"On May 6, 2002, the plaintiff appealed from the committee's decision to the Superior Court. In its memorandum of decision dated September 24, 2003, the court sustained the plaintiff's appeal as to rule 3.5(3), but dismissed his appeal as to rules 8.2(a) and 8.4(4)." Notopoulos v. Statewide Grievance Committee, 85 Conn.App. 425, 427-29, 857 A.2d 424 (2004). In reaching this decision, the trial court suggested that the proper vehicle for bringing a complaint against a Probate Court judge is General Statutes § 45a-63.⁵

On appeal to the Appellate Court, the plaintiff claimed that (1) the trial court improperly concluded that the committee, having failed to submit any evidence at the hearing, had met its burden of proving by clear and convincing evidence that he violated rule 8.2(a) of the Rules of Professional Conduct; id., at 429-30, 857 A.2d 424; and (2) "rule 8.2(a) is inapplicable because the plaintiff was not acting in his professional capacity as an attorney when he wrote the letter." Id., at 430, 857 A.2d 424.⁶ The Appellate Court determined that, "[w]hile the plaintiff was the only party to present evidence or to testify at the hearing, that does not make his evidence the only evidence in the record .... [T]he committee already had in the record evidence in support of its decision, including the grievance complaint with the plaintiff's answer, the plaintiff's letter to Judge Berman, Judge Berman's letter to the committee and documents from the probate proceedings upon which the plaintiff based the allegations contained in his letter. Furthermore ... the committee, as the fact finder, was free to weigh the plaintiff's evidence and to determine the credibility of his testimony ...." Id. The court further concluded that "there is no indication that rule 8.2(a), either in its language or commentary, is applicable solely to an attorney acting in his or her professional capacity ...." Id., at 433, 857 A.2d 424.

In his dissent, Judge Schaller maintained that once the plaintiff had "offered some reasonable explanations of the conduct that he concluded was similar to extortion, the committee had the burden of persuasion on the issue. Clear and convincing evidence is a high standard indeed ...."⁷ Id., at 437, 857 A.2d 424. By failing to present any evidence that the plaintiff's accusations were false, he argued, the committee had failed to carry its burden. Id., at 439, 857 A.2d 424.

On appeal to this court, the plaintiff claims: (1) the committee failed to prove that he had violated rules 8.2(a) and 8.4(4) by clear and convincing evidence; and (2) rules 8.2(a) and 8.4(4) are unconstitutional as applied to an attorney who is exercising his right to free speech in a personal rather than professional capacity. In support of his claim that the committee failed to satisfy its burden of persuasion, the plaintiff argues that (1) Judge Berman failed to appear personally before the committee to refute the plaintiff's allegations against him, and (2) the only evidence before the committee that addressed the plaintiff's allegations was Judge Berman's letter to the committee, which failed to refute the allegations.

The committee responds: (1) the record at the grievance proceeding, which included the plaintiff's "`wholly conclusory'" accusations and Judge Berman's complaint indicating that the actions he took in relation to the plaintiff were within his power, satisfied the burden to prove by clear and convincing evidence that the plaintiff had acted with knowing or reckless disregard as to the truth or falsity of his statements; and (2) the rules are designed to preserve the government's significant interest in the integrity of the legal system, and an attorney's statement "maligning a judge will carry the same weight with the public regardless of whether the attorney is counsel of record in a case, or personally involved ...." That governmental interest, the committee argues, must be balanced against the plaintiff's personal right to free speech. Accordingly, the committee claims that the Appellate Court properly concluded that "there is no indication that rule 8.2(a), either in its language or commentary, is applicable solely to an attorney acting in his or her professional capacity ...." Notopoulos v. Statewide Grievance Committee, supra, 85 Conn.App. at 433, 857 A.2d 424.

We agree with the committee that the trial court properly affirmed the committee's finding, by clear and convincing evidence, that the plaintiff had violated rules 8.2(a) and 8.4(4) of the Rules of Professional Conduct. We further agree with the committee's argument that the Rules of Professional Conduct apply to attorneys acting in both their personal and professional capacities. Moreover, we conclude that the plaintiff's statements impugning the integrity of Judge Berman do not constitute speech protected by the first amendment of the constitution of the United States. Accordingly, we affirm the judgment of the Appellate Court, upholding the committee's reprimand of the plaintiff.

I

We first address the plaintiff's claim that the committee failed to meet its burden of proving a violation of rule 8.2(a). We conclude that the committee's finding that the plaintiff violated the rule was not clearly erroneous.

As a preliminary matter, we set forth the appropriate standards of review. "[I]n 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.... Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence.... The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof." (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, 245 Conn. 277, 290, 715 A.2d 712 (1998). Clear and convincing proof is a demanding standard "denot[ing] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution.... [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are...