Statewide Grievance Committee v. Presnick

• Decision Date: 22 May 1990
• Docket Number: No. 13694,13694
• Citation: 215 Conn. 162,575 A.2d 210
• Court: Connecticut Supreme Court
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Daniel V. PRESNICK.

Page 210

575 A.2d 210

215 Conn. 162

STATEWIDE GRIEVANCE COMMITTEE v.Daniel V. PRESNICK.

No. 13694.

Supreme Court of Connecticut.

Argued March 7, 1990.

Decided May 22, 1990.

Daniel V. Presnick, pro se.

Christine M. Whitehead, for appellee(plaintiff).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

This is an appeal by the defendant, Daniel V. Presnick, an attorney at law, from a judgment of the Superior Court that suspended him from the practice of law for one year.The principal issues are: (1) whether grievance panels, reviewing committees and the statewide grievance committee function as an unconstitutionally created court in violation of article fifth, § 1 of the Connecticut constitution;(2) whether the defendant was denied due process in violation of the fourteenth amendment to the United States constitution and article first, § 10 of the Connecticut constitution; and (3) whether clear and convincing evidence is the appropriate standard of proof in attorney disciplinary proceedings.

The defendant further claims that the trial court erred: (4) in failing to find that the defendant had a corrupt motive or an evil intent; (5) in failing to advise the defendant as to whether the filing of a complaint by a client constitutes a waiver of the attorney-client privilege, thus freeing the attorney to disclose potentially exculpatory information; (6) in finding that the defendant failed to advise a client of the taxing of costs based upon evidence contained in a single letter; (7) in concluding that noncontemporaneously maintained records cannot form the basis for computing billable hours; (8) in finding that the fee charged to the client was unreasonable; (9) in concluding that the defendant intended to withhold the client's money; (10) in failing to consider the defendant's "passive lien" on the client's funds; (11) in its findings as to the work performed for one of his former clients; and (12) in abusing its discretion in ordering his suspension.We find no error.

The record discloses that on January 5, 1989, the plaintiff filed a presentment of attorney for misconduct alleging that the defendant had been guilty of misconduct in his dealings with four clients who had entrusted their legal matters to him.On February 17, 1989, the trial court conducted an evidentiary hearing concerning the four allegations.On March 7, 1989, the trial court found that the defendant had violated the Code of Professional Responsibility and the Rules of Professional Conduct in the course of his representation of each of the four clients identified in the complaint ¹ and rendered judgment suspending the defendant from the practice of law for three months as to each violation for a total suspension of one year.The trial court further ordered that the defendant be readmitted to practice at the conclusion of his suspension only after passing a comprehensive examination concerning his knowledge of the ethical obligations that lawyers owe to their clients.On March 22, 1989, the defendant appealed to the Appellate Court.We thereafter transferred the matter to ourselves pursuant to Practice Book§ 4023.

The defendant first claims that the trial court erred in not dismissing this action because grievance panels, reviewing committees and the statewide grievance committee function as an unconstitutionally created lower court in violation of article fifth, § 1 of the Connecticut constitution.²Specifically, he argues that General Statutes § 51-90 et seq.andPractice Book§ 27B et seq. authorize grievance panels and reviewing committees to make findings of probable cause that attorney misconduct has occurred.Further, he argues that these same enactments authorize the statewide grievance committee to dismiss complaints, to issue reprimands, and to determine who shall be presented to the court for discipline.He contends that all of these matters are exclusively judicial functions.

We note at the outset that constitutional issues do not exist in a vacuum.It is "well established that a litigant may challenge the validity of a statute or ordinance under the Connecticut constitution only as it has been applied to him.He may not claim that the provision is invalid because it impermissibly impinges upon the constitutional rights of others."Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S.Ct. 43, 93 L.Ed.2d 6(1986).In the present case, the plaintiff was not reprimanded by the statewide grievance committee nor did that body dismiss the complaints made against him.We need not therefore consider the constitutionality of these aspects of the grievance procedure." 'The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.'Parker v. Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161[163-64], 94 L.Ed. 144(1949)."Moore v. McNamara, 201 Conn. 16, 21, 513 A.2d 660(1986).The question then remains whether the grievance panel's and reviewing committee's authority to find probable cause and the statewide grievance committee's power to initiate a presentment charging an attorney with misconduct somehow usurp a constitutionally mandated judicial function that may only be exercised by the judiciary.We conclude that this is not the case.

Judges of the Superior Court possess the "inherent authority to regulate attorney conduct and to discipline members of the bar."Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938(1983)."It is their unique position as officers and commissioners of the court ... which casts attorneys in a special relationship with the judiciary and subjects them to its discipline."Id., at 524, 461 A.2d 938.

In exercising their inherent supervisory authority, the judges have authorized grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause.SeePractice Book§ 27B et seq.Further, the judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct.SeePractice Book§ 27M.In carrying out these responsibilities, these bodies "act as an arm of the court."Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 239, 558 A.2d 986(1989).

The assignment to an adjunct of some function historically performed by judges does not necessarily constitute an impermissible delegation of judicial power."[T]he functions of the adjunct must be limited in such a way that 'the essential attributes' of judicial power are retained in the ... court."Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 81, 102 S.Ct. 2858, 2876, 73 L.Ed.2d 598(1982).In the procedural scheme here in issue, the grievance panels and reviewing committees carry out what are essentially investigative, fact-bound functions that only determine the probability that an act of attorney misconduct has occurred."[T]here is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges."Crowell v. Benson, 285 U.S. 22, 51, 52 S.Ct. 285, 292, 76 L.Ed. 598(1932);Northern Pipeline Co. v. Marathon Pipe Line Co., supra, 458 U.S. at 78, 102 S.Ct. at 2875.For its part, the statewide grievance committee's only function in the case at hand was to initiate the presentment.The presentment that thereafter followed was a de novo, evidentiary proceeding carried out in court.The ultimate decision as to whether an act of misconduct had occurred reposed solely with the judge, as did the power to administer an appropriate sanction.This being the case, we conclude that the delegation of the determination of probable cause to the grievance panel and reviewing committee here in issue, and the delegation of the presentment function to the statewide grievance committee did not strip from the court the "essential attributes" of the judicial function involved, i.e., the regulation of attorney conduct.In these circumstances, we find no impermissible delegation of judicial power.³

The defendant next argues that the grievance procedure that led to his presentment violated his constitutional right to procedural due process in violation of the fourteenth amendment to the United States constitution and article first, § 10 of the Connecticut constitution.Specifically, he claims that: (1)he was not given an opportunity to cross-examine witnesses at the grievance panel proceedings; (2) determinations of probable cause that he was guilty of misconduct were made by grievance panels without hearing the testimony of the parties; and (3) the public nature of the reviewing committee or statewide grievance committee hearings that follow a determination of probable cause create a stigma that is not corrected by a subsequent "name-clearing" hearing.⁴

"Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded."Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258(1985)."In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights."Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516(1941).

Practice Book§ 27F sets forth the procedure whereby grievance panels may determine whether probable cause exists that attorney misconduct has...