Pagano, Application of, 13204

• Decision Date: 10 May 1988
• Docket Number: No. 13204,13204
• Citation: 207 Conn. 336,541 A.2d 104
• Court: Connecticut Supreme Court
• Parties: In re Application of Anthony F. PAGANO.

Page 104

541 A.2d 104

207 Conn. 336

In re Application of Anthony F. PAGANO.

No. 13204.

Supreme Court of Connecticut.

Argued Feb. 11, 1988.

Decided May 10, 1988.

John L. Giulietti, Vernon, pro se.

F. Mac Buckley, Hartford, for appellee (Anthony F. Pagano).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

This is an appeal by John L. Giuletti, an attorney at law, from a judgment authorizing the return to practice of a suspended fellow attorney, Anthony F. Pagano. The issues presented are: (1) whether the appellant Giulietti had the right to participate in the proceedings below; and (2) whether the evidence presented was sufficient to support the conclusions reached by the Superior Court. We answer both questions in the affirmative and find no error.

Examination of the record discloses that on May 19, 1984, Anthony F. Pagano, an attorney at law, was involved in an automobile accident. An occupant of a second vehicle was killed.

On August 29, 1984, Pagano pleaded nolo contendere to charges of misconduct with a motor vehicle. General Statutes § 53a-57. ¹ The court found him guilty and imposed a sentence of one year, execution suspended, to be followed by a period of probation for two years. The court also imposed a fine of $500 and ordered 150 hours of community service.

On November 5, 1984, the grievance committee for the Hartford-New Britain judicial district filed a presentment pursuant to Practice Book § 31, ² seeking a rule to show cause why Pagano should not be disbarred or otherwise disciplined by reason of his unacceptable behavior in connection with the automobile accident.

On October 1, 1985, following a hearing on the presentment, the court, Shaughnessy J., filed a memorandum in which it found that, after the accident, Pagano had made statements "to the investigating officer that were both misleading and untrue" and that "[t]here were also questions raised by the investigation concerning the attorney's abuse of alcohol and drugs." The court "was satisfied that prior to May 19, 1984, Attorney Pagano's reputation for both integrity and competence was a good one." The court concluded, however, that the attorney was then "unfit to continue the practice of law." The court entered an order of indefinite suspension until "he [Pagano] satisfies the court that he has conquered whatever problems he may have now or may have had in the past with substance abuse and that his mental and emotional state has improved to the extent that they will not interfere with his ability to practice law."

On October 10, 1986, Pagano filed an application for reinstatement to the bar. In accordance with Practice Book § 36, ³ the matter was referred to the standing committee on recommendations for admission to the bar for the Hartford-New Britain judicial district. ⁴ On January 6, 1987, the standing committee conducted a public hearing and, on April 1, 1987, filed its report with the court. The report concluded that "having been satisfied by clear and convincing evidence that Anthony F. Pagano is presently a fit and safe person to engage in the practice of law, the Committee recommends to the Court that Anthony F. Pagano be reinstated to the practice of law."

On May 5, 1987, Giulietti filed a motion "to be made a party" or, in the alternative, sought "permission to intervene to oppose the application for reinstatement." On May 8, 1987, the court, Aronson, Quinn and Stoughton, JJ., denied the appellant's motion. The court thereafter allowed interested parties to comment on the committees' recommendations. Giulietti appeared and was fully heard. On June 19, 1987, the three judge panel issued its decision ordering Pagano's reinstatement as of October 1, 1987. This appeal followed.

I

Giulietti first contends that the court erred in denying his motion "to be made a party" or in the alternative "grant him permission to intervene" in the proceedings. We disagree.

" 'The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court.' In re Bowman, 7 Mo.App. 569 [1879]." State v. Peck, 88 Conn. 447, 453, 91 A. 274 (1914). The proceeding is "an investigation by the court into the conduct of its ... own officers ..."; Fairfield County Bar v. Taylor, 60 Conn. 11, 15, 22 A. 441 (1891); and is "one undertaken 'for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them.' Ex parte Wall, 107 U.S. [ (17 Otto) ] 265, 288, 2 Sup.Ct.Rep. 569 [27 L.Ed. 552 (1882) ]; Penobscot Bar v. Kimball, 64 Me. 140, 147 [1875]; Boston Bar Association v. Greenhood, 168 Mass. 169, 183, 46 N.E. 568 [1897]; In re Bowman, [supra]." State v. Peck, supra, 88 Conn. at 452, 91 A. 274. "There are no adversary parties [to grievance proceedings] in the technical legal sense, although our reports contain cases which, in their titles, carry as parties not only the names of the petitioners [or respondents] but those of bar examining committees and grievance committees. In re Application of Dodd, [131 Conn. 702, 705, 42 A.2d 36 (1945) ]; Grievance Committee v. Broder, 112 Conn. 263, 265, 152 A. 292 [1930]." Heiberger v. Clark, 148 Conn. 177, 182, 169 A.2d 652 (1961).

Since there are no adversary parties in grievance proceedings, it was not necessary for Giulietti to move for admission as a party in order to participate in the proceedings. The trial court, therefore, correctly denied the motion in which he sought to do so while, equally correctly, afforded him the opportunity to be heard thereafter.

An ancillary question remains as to whether the appellant, as an attorney, may be characterized as a "party aggrieved by the decision of the court"; Practice Book § 4000; ⁵ thereby qualifying him to pursue an appeal. We answer in the affirmative.

"The end result of the [grievance] proceedings is in the nature of a judgment from which an appeal lies to this court. Heiberger v. Clark, supra, 183 ; In re Application of Dodd, supra [131 Conn. at], 707 ; O'Brien's Petition, 79 Conn. 46, 59, 63 A. 777 [1906]." In re Application of Courtney, 162 Conn. 518, 522, 294 A.2d 569 (1972).

We have earlier concluded that "every member of the bar has an interest in the admission of an attorney upon motion without examination." In re Application of Dodd, supra, 131 Conn. at 705, 42 A.2d 36. We see no reason why this should not also be the case in connection with petitions by attorneys who seek readmission following suspension.

"Attorneys have a franchise which is regarded as a property right. O'Brien's Petition, [supra, 79 Conn. at 55, 63 A. 777]." In re Application of Dodd, supra. This property right gives the attorney "an interest which he had a right to protect from anyone seeking admission to the bar who he believes lacks some essential prescribed qualification therefor. See 5 Am.Jur. [Attorneys at Law] 272, § 18." In re Application of Dodd, supra, 706, 42 A.2d 36. While this proposition has been previously limited to attorneys in active practice within the judicial district where the proceeding is pending; id.; we are persuaded in this era of high mobility and instantaneous communication that this right in fact extends to all attorneys within this geographically compact state. ⁶

II

Thus armed with standing to pursue this appeal, Giulietti next argues that the evidence presented to the standing committee was insufficient to support the committee's conclusion that the petitioner was "presently a fit and safe person to engage in the practice of law." He claims that: (1) the substances being abused should have been specifically identified; (2) the petitioner's treating physician should have been physically present to testify at the committee hearing; and (3) there was inadequate evidence that the petitioner was no longer drug dependent. We do not agree.

The October 1, 1985 memorandum that ordered the petitioner's suspension made no finding that he was in fact a drug dependent person. The conclusion that he was "unfit to continue the practice of law" was premised in part, however, on the court's finding that there were "questions raised concerning substance abuse (both alcohol and drugs)...." ⁷

In support of his application for reinstatement, the petitioner offered the expert testimony of Nicholas J. Palermo, an osteopathic doctor, who was the petitioner's personal physician and the director of a medical testing laboratory. Palermo testified that from April, 1986, until January, 1987, he had supervised random drug testing of the petitioner and had found him free of drugs. The substance screening included tests for alcohol, cocaine, marihuana, amphetamines and barbituates among other drugs. Although the standing committee chairman had invited anyone present to cross-examine those testifying, no one challenged the sufficiency of the screening procedures ⁸ nor Palermo's conclusion that the petitioner was not now a substance abuser. ⁹

In further support of his claim of present fitness the petitioner offered the testimony of Abraham L. Halpern, a consulting psychiatrist who specializes in the treatment of professionals. In addition to his own observations of the petitioner on January 9, 1986, in which he found "no signs of mental illness," Halpern enlisted the consultative services of Eileen C. Bloomingdale, Ph.D., a psychodiagnostician who administered a seven-hour series of psychological tests to the petitioner. Bloomingdale concluded that the petitioner's "mental and emotional state is such that he is able to fully attend to his responsibility to law clients and fulfill such responsibility. There is no psychological impediment to Mr. Pagano resuming the practice of law."

Halpern examined the petitioner further on March 27, 1986, and "again found him to be entirely free of mental...