Somers v. Statewide Grievance Committee

• Citation: 715 A.2d 712,245 Conn. 277
• Decision Date: 14 July 1998
• Docket Number: No. 15804,15804
• Court: Supreme Court of Connecticut
• Parties: David M. SOMERS v. STATEWIDE GRIEVANCE COMMITTEE.

Page 712

715 A.2d 712

245 Conn. 277

David M. SOMERS v. STATEWIDE GRIEVANCE COMMITTEE.

No. 15804.

Supreme Court of Connecticut.

Argued Jan. 13, 1998.

Decided July 14, 1998.

Mark H. Dean, Hartford, for appellant (plaintiff).

Cathy A. Dowd, Assistant Bar Counsel, for appellee (defendant).

Before CALLAHAN, C.J., and BORDEN, BERDON, KATZ, PALMER, McDONALD and PETERS, JJ.

PALMER, Associate Justice.

The plaintiff, David M. Somers, an attorney, appeals from the judgment of the trial court dismissing his appeal from the reprimand issued to him by the defendant, the statewide grievance committee, for violating rule 3.4(7) of the Rules of Professional Conduct. ¹ We conclude that the defendant's determination that the plaintiff had committed a violation of rule 3.4(7) was improperly predicated, at least in part, on certain irrelevant factual findings. Consequently, we reverse the judgment of the trial court and direct that the case be remanded to the defendant for a new hearing on the complaint.

The record discloses the following pertinent facts. The plaintiff originally was retained to represent H.P. Townsend Manufacturing Company (Townsend). Townsend, however, ceased doing business in August, 1991, due to a court-ordered replevin of assets. Thereafter, Kimberly Barrett, who had been employed by Townsend and had served as its corporate secretary, formed two corporations, TCE Corporation (TCE) and MT Assembly Corporation (MT). The plaintiff's secretary, Gigette Coudriet, purchased Townsend's assets and subsequently conveyed them to TCE and MT in exchange for promissory notes and leases. Coudriet later assigned her interest in the notes and leases to the plaintiff.

In February, 1994, the plaintiff instituted a civil action against TCE and MT to collect monies allegedly owed to him pursuant to the promissory notes and leases. In May, 1994, the plaintiff commenced a second civil action against TCE and MT to replevy the assets that had been leased to the two corporations. The plaintiff thereafter joined Barrett as a defendant in both actions on the theory that she personally was liable for the corporations' allegedly tortious conversion of the leased property. ²

On June 21, 1994, the plaintiff telephoned the West Hartford police department and informed Detective William Kinahan that he wished to file a criminal complaint for larceny by conversion of leased property in violation of General Statutes § 53a-119 (13). ³ After providing Kinahan with certain documents relative to the alleged conversion, the plaintiff, on June 28, 1994, filed a criminal complaint against Barrett, TCE and MT. ⁴ At that time, Kinahan advised the plaintiff that he thought the matter should be pursued through the civil action rather than through the criminal process. ⁵

On June 30, 1994, Kinahan obtained additional information from the plaintiff regarding his complaint. Shortly thereafter, Kinahan brought the complaint to the attention of assistant state's attorney Mark Brodsky, ⁶ who concurred with Kinahan's opinion that the matter was civil, rather than criminal, in nature. On July 1, 1994, Kinahan notified the plaintiff that, as a consequence of Brodsky's determination, no further action would be taken by the West Hartford police or by the local office of the state's attorney regarding the complaint. Kinahan, however, recommended that the plaintiff contact the economic crimes unit of the chief state's attorney's office if he wished to pursue the matter further. The plaintiff then contacted the economic crimes unit, which referred him to assistant state's attorney Edward Narus, who was assigned to the office of the state's attorney in Hartford. ⁷ Between July and October, 1994, the plaintiff provided Narus with information and documentation in support of his criminal complaint against Barrett.

In the meantime, on July 11, 1994, Barrett, on behalf of herself, TCE and MT, filed a complaint with the defendant alleging that the plaintiff had violated rule 3.4(7) of the Rules of Professional Conduct by presenting or threatening to present criminal charges solely to obtain an advantage in a civil matter. ⁸ In accordance with Practice Book § 2-29(a) and General Statutes § 51-90f, the defendant forwarded Barrett's complaint to the grievance panel for the Hartford-New Britain judicial district (local panel). ⁹

On September 8, 1994, a hearing was conducted on the plaintiff's application for a prejudgment remedy in his civil action against Barrett, TCE and MT. At that hearing, the parties stipulated to an injunction prohibiting Barrett from selling, conveying or concealing the assets of the two corporations. After the plaintiff had notified Narus of the injunction, Narus, by letter dated November 3, 1994, advised the plaintiff that he would take no further action on the plaintiff's criminal complaint against Barrett in light of the fact that Barrett had not attempted to sell, convey or conceal the corporate assets.

On February 22, 1995, the local panel, after considering Barrett's complaint and other information supplied by Barrett and the plaintiff, ¹⁰ notified the plaintiff that it had concluded that there was probable cause to believe that he had violated rule 3.4(7) of the Rules of Professional Conduct. ¹¹ On June 8, 1995, a reviewing committee conducted a hearing on Barrett's complaint in accordance with Practice Book § 2-35. ¹² The reviewing committee heard testimony from the plaintiff, Kinahan, Barrett and Elaine Stuhlman, Barrett's attorney.

At the hearing, the plaintiff testified that he had filed two criminal complaints with the West Hartford police department, one against Coudriet and one against Barrett, for larceny by conversion of leased property. He explained that the police had concluded that there was probable cause to believe that Coudriet improperly had withheld monies due and owing to the plaintiff under the leases, and that they had planned to arrest her unless she returned the money. Coudriet thereafter returned the money.

The plaintiff also testified about his reasons for filing the criminal complaint against Barrett. The plaintiff stated that he had told Kinahan that Barrett had sent him a letter in January, 1994, acknowledging the plaintiff's ownership of the assets, but that later Barrett had asserted her ownership of those same assets. According to the plaintiff, he concluded that it was necessary to seek a criminal investigation of the matter in order to protect his property, and because it might take years to obtain a civil remedy. In addition, the plaintiff testified that he had researched the applicable criminal statutes and had determined that persons engaged in conduct similar to that of Barrett had been prosecuted for larceny by conversion. He further stated that he would not have pursued the criminal complaint if he had not sincerely believed that Barrett had intended unlawfully to convert his property, a belief that he held in part because, according to the plaintiff, Barrett had "a history of doing that." The plaintiff also noted that he understood that the decision whether to prosecute rested exclusively with the state's attorney because, as he testified, "[it is] the interest of the public [that the state is] representing, not my personal interests."

The plaintiff further stated that he had told Kinahan that the civil case could be rendered moot if he received restitution in the criminal case, but that the criminal and civil cases were unrelated. The plaintiff, however, also indicated that he did not intend to withdraw his civil claim regardless of the disposition of his criminal complaint because he was seeking treble damages and attorney's fees in the civil case.

According to the plaintiff, he had continued to pursue his complaint with the economic crimes unit of the chief state's attorney's office, even after Barrett had stipulated to the injunction, because he was not persuaded that the injunction adequately protected his interests. The plaintiff stated that subsequent to the issuance of the injunction, he had been informed by Narus that Narus' office had decided not to file criminal charges against Barrett because: (1) the legislature did not intend for every misappropriation of property to be prosecuted criminally; (2) the injunction provided the plaintiff with adequate protection; and (3) there was no evidence to establish that Barrett had concealed, conveyed or sold the property. ¹³ The plaintiff also testified, however, that Narus had expressed a willingness to review any additional information regarding the matter that the plaintiff might wish to bring to Narus' attention in the future.

Kinahan testified that he had told the plaintiff that assistant state's attorney Brodsky had advised him that the matter was essentially civil in nature and that no further criminal investigation was warranted. Kinahan further stated that he had recommended that the plaintiff contact the economic crimes unit of the chief state's attorney's office if he wanted to pursue the matter further. Kinahan also recalled that the plaintiff had stated that he would not press the criminal complaint if the issue was resolved civilly.

Barrett testified that she believed that the plaintiff had filed the complaint to scare or threaten her. Barrett further stated that she was frightened by the prospect of a criminal investigation of the plaintiff's complaint. Finally, Barrett's attorney testified that Barrett had been "highly intimidated" by the plaintiff's criminal complaint against her.

Following the hearing, the reviewing committee issued a proposed decision in which it found by clear and convincing evidence that the plaintiff had violated rule 3.4(7) "by participating in presenting criminal conversion charges against [Barrett, TCE and MT] solely to obtain an advantage in the civil conversion complaint [that] the [plaintiff] had filed against [Barrett, TCE and MT]." The reviewing committee also stated that "[w]e...