Statewide Grievance Committee v. Shluger

• Decision Date: 09 August 1994
• Docket Number: No. 14880,14880
• Citation: 230 Conn. 668,646 A.2d 781
• Court: Connecticut Supreme Court
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Robert J. SHLUGER.

Page 781

646 A.2d 781

230 Conn. 668

STATEWIDE GRIEVANCE COMMITTEE v. Robert J. SHLUGER.

No. 14880.

Supreme Court of Connecticut.

Argued June 3, 1994.

Decided Aug. 9, 1994.

John R. Willard, Westport, with whom, on the brief, was defendant Robert J. Shluger, for appellant (defendant).

Daniel B. Horwitch, Statewide Bar Counsel, East Hartford, for appellee (plaintiff).

Before CALLAHAN, BORDEN, BERDON, KATZ and PALMER, JJ.

PALMER, Associate Justice.

The defendant, Robert J. Shluger, an attorney, appeals from the judgment of the trial court suspending him from the practice of law for a period of three years. ¹ The defendant claims that the trial court improperly: (1) considered certain criminal misconduct by the defendant not charged in the presentment; (2) considered prior ethical misconduct by the defendant for which he had been disciplined; and (3) concluded that the defendant's federal felony conviction warranted his suspension from the practice of law for three years. We affirm the judgment of the trial court.

The facts are undisputed. After the defendant's graduation from law school and admission to the bar of this state in 1981, he joined the law offices of Michael A. Peck, ² where he was employed until 1990. While employed by Peck, the defendant filed personal federal income tax returns for the calendar years 1986 and 1988 wherein he intentionally understated his taxable income. ³

On May 25, 1993, the defendant was charged in the United States District Court for the District of Connecticut with one felony count of willfully making and subscribing to a false income tax return for the calendar year 1988 ⁴ in violation of 26 U.S.C. § 7206(1). ⁵ The defendant entered a plea of guilty to that offense, and acknowledged that he had reported $22,782 in taxable income for 1988, knowing that he had taxable income for that year in the amount of $76,398. On August 23, 1993, he was sentenced to a two year period of probation and ordered to pay any sums due and owing to the Internal Revenue Service. ⁶

On October 28, 1993, the plaintiff, the statewide grievance committee, filed a presentment and petition for interim suspension against the defendant in the Superior Court, pursuant to Practice Book § 28B.1. ⁷ The presentment alleged that the defendant had been convicted of subscribing to a false tax return for the calendar year 1988 in violation of 26 U.S.C. § 7206(1), a felony, and that he had been sentenced to a term of probation of two years. On December 7, 1993, the trial court conducted a hearing on the presentment and petition. At the hearing, the defendant testified on direct examination that he had twice been reprimanded, once by a local grievance committee and once by the plaintiff, ⁸ for improper communications with parties whom the defendant knew to be represented by other counsel. ⁹ The defendant further testified on direct examination that his filing of a false income tax return for the calendar year 1988 had been an isolated instance of the use of poor judgment. Prior to the hearing, however, the defendant had filed with the court an affidavit in which he stated that he had "commit[ted] the act of falsely reporting [his] actual income for the years 1986 and 1988." (Emphasis added.) On cross-examination, the defendant acknowledged that although he had only been charged with filing a false tax return for 1988, he had also filed a false return for 1986.

The trial court concluded that a "reprimand [of the defendant] would not adequately protect the public and the administration of justice from an attorney who is unlikely properly to discharge his professional duties to clients, the public, the legal system, and the legal profession. [The defendant] has been reprimanded twice previously. He is convicted of a serious crime and admits to a like violation for which he was not charged. The [defendant] is accordingly suspended from the practice of law for a period of three years commencing on February 15, 1994." ¹⁰

I

The defendant first claims that the trial court, in formulating its judgment, improperly considered his filing of a false 1986 federal income tax return. Specifically, he argues that the court's consideration of his filing of a false 1986 return deprived him of his right to fair notice of the charges against him because the presentment contained no reference to that conduct. We disagree.

We begin our analysis of the defendant's claim with a review of the well established principles that govern disciplinary actions against attorneys. ¹¹ Attorney disciplinary proceedings "are for the purpose of preserving the courts from the official ministration of persons unfit to practise in them." Ex parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 588-89, 27 L.Ed. 552 (1883); Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989). An attorney "as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe 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." In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). Therefore, "[i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." (Internal quotation marks omitted.) Statewide Grievance Committee v. Botwick, 226 Conn. 299, 307, 627 A.2d 901 (1993).

Because a license to practice law is a vested property interest, an attorney subject to discipline is entitled to due process of law. In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, reh. denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874, modified on other grounds, 392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d 1380 (1968); Statewide Grievance Committee v. Botwick, supra, 226 Conn. at 306, 627 A.2d 901. Accordingly, "[b]efore discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights 'in some substantial manner.' " Statewide Grievance Committee v. Botwick, supra, at 308, 627 A.2d 901, quoting Grievance Committee v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941). With respect to the required notice, the presentment must "be sufficiently intelligible and informing to advise the court of the matter complained of, and the attorney of the accusation or accusations made against him, to the end that ... the latter may prepare to meet the charges against him...." In re Peck, supra, 88 Conn. at 453, 91 A. 274; Statewide Grievance Committee v. Botwick, supra, at 310, 627 A.2d 901. Conduct not charged in a presentment, therefore, may not provide the ground for the suspension of an attorney. Statewide Grievance Committee v. Botwick, supra, at 311, 627 A.2d 901.

Contrary to the claim of the defendant, the presentment need not have included any reference to the defendant's filing of a false 1986 tax return. The presentment filed against the defendant, in full compliance with Practice Book § 28B.1, properly set forth the ground for the disciplinary action against him, namely, his conviction for filing a false federal income tax return for the calendar year 1988. Because the sole ground for disciplinary action initiated under § 28B.1 is an attorney's criminal conviction, ¹² nothing more than the defendant's federal tax conviction was required to have been included in the presentment. The trial court, however, was also free to consider other evidence relevant to the defendant's character, integrity and professional standing; see General Statutes § 51-94; ¹³ so that it could determine what sanction to impose against the defendant in light of his felony conviction. Statewide Grievance Committee v. Whitney, 227 Conn. 829, 837-38 n. 13, 633 A.2d 296 (1993); Grievance Committee v. Sinn, supra, 128 Conn. at 426, 23 A.2d 516. Because the trial court reasonably concluded that the defendant's filing of a false tax return for 1986 was relevant to those issues, it properly considered that conduct.

The defendant cannot complain that he had not received adequate notice of the issue of his false 1986 tax return, because the defendant himself had brought that fact to the attention of the trial court in his prehearing submission. ¹⁴ Moreover, the defendant's repeated characterization of his felony tax conviction as having resulted from "one isolated act of very poor judgment" prompted the plaintiff's fair cross-examination of the defendant concerning his filing of a false 1986 return, which the defendant again acknowledged. Finally, in view of the fact that the defendant was given a full and fair opportunity to address the trial court's concerns about the false 1986 return, both at the hearing and again in his posttrial brief, the defendant has failed to demonstrate that he was unfairly prejudiced by the trial court's consideration of the 1986 return. ¹⁵ See Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991) cert. denied, --- U.S. ----, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992).

II

The defendant next claims that the trial court improperly concluded that the defendant's prior ethical misconduct was relevant to its determination of an appropriate sanction. We do not agree.

Because the defendant had been properly presented for discipline on the basis of his federal felony...