Presnick, Matter of, SAC

• Decision Date: 26 July 1989
• Docket Number: No. SAC,SAC
• Parties: In the Matter of Daniel V. PRESNICK. 001.
• Court: Connecticut Court of Appeals

Page 299

563 A.2d 299

19 Conn.App. 340

In the Matter of Daniel V. PRESNICK.

No. SAC 001.

Appellate Court of Connecticut.

Argued Dec. 12, 1988.

Decided July 26, 1989.

Daniel V. Presnick, pro se.

Before DUPONT, C.J., and BORDEN, SPALLONE, DALY, EDWARD Y. O'CONNELL, STOUGHTON, NORCOTT and FOTI, JJ.

DUPONT, Chief Judge.

This matter arises out of an en banc show cause hearing conducted, sua sponte, by this court, after notice to a member of the Connecticut bar, Daniel V. Presnick, to determine whether he should be barred from filing in this court, "any papers, including the filing of an appearance on behalf of a party other than himself, and from appearing in Court," as a result of his failure to comply with a prior order of this court. Presnick appeared at the hearing, argued, and subsequently submitted a brief.

The issue raised by the show cause order and the hearing is whether this court has the power to impose the sanction of a suspension from practice before this court when an order of the court has been disobeyed. We hold that we do.

The prior order of this court that was the basis of the show cause hearing was that Presnick, the pro se defendant in the case of Esposito v. Presnick, 15 Conn.App. 654, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988), should pay the sum of $500 as a sanction for his failure to attend a preargument settlement conference in that case. ¹ Presnick was ordered to pay that sum to the chief clerk of the Appellate Court who, in turn, was directed to make payment of the same sum to the opposing counsel in the case. ² The money has never been paid.

At the show cause hearing, and in his brief, Presnick basically argues that there is no specific rule of this court that provides for the sanction of prohibiting an attorney from appearing in this court or filing papers in this court on behalf of others, and, therefore, no such sanction can be imposed. He further argues that this is particularly the case when the underlying behavior of the attorney that is the cause of the sanction arises in a case in which he or she appeared pro se. He further claims that the proposed sanction is tantamount to disbarment in this court and that before such a sanction may be imposed, federal constitutional due process requires that a fair and impartial hearing be held after reference by this court to an impartial factfinding body. ³

Presnick's arguments, then, are that this court is powerless to impose the sanction of preventing him from practicing law in this court because the behavior of which we complain occurred while he was acting pro se, that there is no specific rule of this court providing for such a sanction, and that without a finding of facts by an impartial body his due process rights were violated.

It is undisputed that the failure to pay the $500, which was the original sanction imposed, arose while Presnick was representing himself, as opposed to representing another in his capacity as a member of the bar of this state. Although misconduct of an attorney may be unconnected with representation of another as a member of the bar, punishment may be imposed for that misconduct because it is an indication of a general unfitness to practice law. Grievance Committee v. Broder, 112 Conn. 263, 112 Conn. 269, 274, 152 A. 292 (1930); In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). The practice of law is a privilege and if an attorney "by misconduct in any capacity, discloses that he ... is an unfit ... person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited." (Emphasis added.) Id. Failure to obey an order of a court is inimical to the responsibilities of a member of a bar as an officer of that court and whether the disobedience arises from representing oneself or another in a professional capacity makes no difference.

Our sanction rule, Practice Book § 2036, provides in relevant part: "The following will subject an offender, at the discretion of the court, to appropriate discipline.... (1) Failure to comply with rules and orders of the court.... Offenders subject to such discipline include both counsel and pro se parties." The rule is entirely clear that pro se parties will be subject to discipline for violations of the court's rules.

There has been an increasing tendency in many courts to impose severe sanctions on those who undertake to represent themselves but abuse the process of the courts to the detriment of other litigants and to the detriment of the court. See, e.g., In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984); Matter of Hartford Textile Corporation, 681 F.2d 895 (2d Cir.1982); Sparrow v. Reynolds, 646 F.Sup. 834 (D.D.C.1986). Those sanctions may be imposed whether the malfeasor was, or was not, an attorney or was an attorney representing himself or others. See Browning Debenture Holders' Co. v. Dasa Corporation, 605 F.2d 35 (2d Cir.1978). Since a client may be punished for the transgressions of his attorney; Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984); there is no compelling reason not to punish that same client who chooses himself as an attorney. Whether an attorney represents himself or not, his basic obligation to the court as an attorney remains the same. He is an officer of the court no matter who is the client. Disciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers and commissioners of the court. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983). An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system. Chang v. Meese, 660 F.Supp. 782 (D.Puerto Rico 1987).

The special relationship between courts and their officers, those attorneys who practice before them, requires a court to monitor the conduct of those officers of the court. ⁴ Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 558 A.2d 986 (1989). The purpose of such control is to protect the public from the effects of possible future misconduct by an officer of the court. The protection needed is no less necessary because the miscreant behavior occurs while the officer represents himself.

Presnick had a right to represent himself. He has no right, however, to expect that self-representation to clothe him with immunity from conforming to the behavior required of an officer of the court. A lawyer's primary obligation is to the court and if there is a conflict between what he or she perceives as the interest of the client and the duty owed to the court, the latter must prevail. Here, the identity of client and lawyer merged. Presnick's obligation to obey the court's order transcended his belief that, as his own client, he did not have to attend the preargument settlement conference or pay the $500. We hold that the fact that Presnick's failure to obey an order of this court occurred while he represented himself is not a bar to the imposition of a sanction that relates to his representation, as an attorney, of others.

Presnick also argues that this court has no specific rule providing for the sanction described in our show cause order, and that, therefore, we cannot impose such a sanction. Practice Book § 2036 does not specifically provide that a sanction against a member of the bar who appears before us might be the prohibition of filing papers in this court or appearing in this court. The rule does, however, subject offenders, namely those who violate the rules and orders of this court, to "appropriate discipline." A discussion of Presnick's claim necessarily involves a discussion of the sources of the power of courts. We hold that the sanction proposed by our show cause order is included within the words "appropriate discipline" because we conclude that we have both the inherent and statutory power to impose such a disciplinary sanction, and that the sanction is warranted on the facts of this case.

There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court. The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is "of ancient origin, having its roots in judgments ... entered at common law, e.g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals ... e.g., id., at 451." Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734, reh. denied, 371 US. 873, 83 S.Ct. 115, 9 L.Ed.2d 112 (1962). That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases. Id.; Petition for Integration of Bar of Minnesota, 12 N.W.2d 515 (Minn.1943). Simply stated, "[t]he inherent powers of ... courts 'are those which are necessary to the exercise of all others.' United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812)." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1979).

The cases are legion, both federal and state, that provide that by rule, statute, or the use of inherent power, courts must be able to discipline members of the bar, and others who appear before the courts, in order to compel observance of their rules and orders. Statewide Grievance Committee v. Rozbicki, supra; see also Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra; Fattibene v. Kealey, 18 Conn.App. 344, 358-60, ...