Statewide Grievance Committee v. Whitney

• Decision Date: 16 November 1993
• Docket Number: No. 14594,14594
• Citation: 227 Conn. 829,633 A.2d 296
• Court: Connecticut Supreme Court
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Norman E. WHITNEY.

Page 296

633 A.2d 296

227 Conn. 829

STATEWIDE GRIEVANCE COMMITTEE v.Norman E. WHITNEY.

No. 14594.

Supreme Court of Connecticut.

Argued Sept. 24, 1993.

Decided Nov. 16, 1993.

Norman E. Whitney, pro se, appellant(defendant).

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

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

KATZ, Associate Justice.

The Superior Court ordered that the defendant, Norman E. Whitney, be suspended from the practice of law for one year after he refused on several occasions to attend a pretrial conference in a criminal matter.In this appeal from the judgment of the trial court imposing suspension, the defendant claims that: (1) the practice of scheduling mandatory pretrial conferences in criminal matters is unconstitutional under the state and federal constitutions; (2)General Statutes §§ 53a-172and53a-173¹ are unconstitutional under the state and federal constitutions; and (3) mandatory criminal pretrial conferences are used by Connecticut courts to demoralize defendants and impair their constitutional rights.²We reject these claims as bases for overturning the suspension and affirm the judgment of the trial court.

The essential facts are undisputed.In January, 1990, the defendant, a member of the Connecticut bar, filed an appearance on behalf of Francisco Ramos in the Hartford judicial district of the Superior Court.Ramos had been charged by the state with the crimes of arson in violation of General Statutes § 53a-111, risk of injury to a child in violation of General Statutes § 53-21, and threatening in violation of General Statutes § 53a-62.³Prior to the scheduling of a pretrial conference, Ramos had been arraigned, had pleaded not guilty to all three charges and had elected a jury trial on all three counts.

On January 18, 1990, the defendant appeared in court at a bond hearing for Ramos.The court, Norko, J., continued the case to February 2, 1990, for a pretrial conference, and ordered that the defendant, Ramos and the assistant state's attorney handling the case be present.⁴

On January 23, 1990, the defendant sent a letter to Judge Norko requesting that the court"have the case set down for a firm jury" because a pretrial conference would be "absolutely senseless, time-consuming and unfairly expense-producing" and would be "a breach of [Ramos'] ... rights under both the constitution of Connecticut and that of the United States."⁵The defendant did not appear in court on February 2, 1990.The court continued the case to February 16, 1990.

On February 14, 1990, the defendant sent another letter to Judge Norko, claiming that a pretrial conference would be "senseless" and a "sham performance," and would deny Ramos "constitutional treatment."When the defendant did not appear in court on February 16, Judge Norko questioned Ramos about his attorney's absence.Ramos stated that the defendant had told him that the defendant did not plan to attend the pretrial conference because he was unprepared.Ramos also indicated that the defendant had failed to communicate a plea offer to him.⁶The trial court, Norko, J., fined the defendant $100 pursuant to General Statutes § 51-84⁷ for the failure to appear and set the case down for another pretrial conference.

On four more occasions from February 16 to April 12, 1990, the defendant failed to appear in court for pretrial conferences as ordered.The court imposed another $100 fine pursuant to § 51-84 for failing to appear and continued the case on the firm trial list.

The defendant did not appear in court until August, 1990, when the case was called for trial.At that time, the defendant conferred with Ramos, the prosecutor and the trial judge, Miano, J., and the state offered to reduce Ramos' charges.Ramos agreed to a disposition of his case on the reduced charges and to serve a short jail sentence followed by probation.

On April 19, 1990, a week after the defendant's final failure to appear for the pretrial conference, Judge Norko sent a letter to the plaintiff, the statewide grievance committee, that summarized the defendant's conduct in connection with Ramos' case.The statewide grievance committee referred Judge Norko's letter to a grievance panel that considered the letter, the transcripts from three of the days on which the defendant had failed to appear, and copies of the letters that the defendant had sent to Judge Norko.

Thereafter, the panel filed a formal complaint against the defendant with the statewide grievance committee ⁸ that was forwarded to the grievance panel for the Hartford-New Britain judicial district.On August 9, 1990, that grievance panel found probable cause to believe that the defendant had violated rules 1.3,3.4(c),3.5(c)and8.4(d) of the Rules of Professional Conduct.⁹The reviewing subcommittee of the statewide grievance committee held a hearing on the complaint against the defendant, ¹⁰ and thereafter issued its proposed decision finding that the defendant had violated rules 1.3,3.4(c),3.5(c)and8.4(d), and recommending that he be presented to the Superior Court.¹¹

The grievance committee adopted the reviewing subcommittee's proposed decision and recommendation, and filed an amended presentment of the defendant to the Superior Court pursuant to General Statutes § 51-90h(b)andPractice Book§ 31.¹²The presentment alleged that the defendant had violated rules 1.3,3.4(c),3.5(c)and8.4(d) of the Rules of Professional Conduct.

On August 18, 1992, the trial court, Maloney, J., concluded that the defendant's repeated refusals to obey court orders to appear for pretrial conferences had violated rules 3.4(c)and8.4(d).The trial court reprimanded the defendant and ordered him to pay the two $100 fines that had been imposed by Judge Norko.The court also ordered that the defendant be suspended from the practice of law for a one year period beginning September 5, 1992, if he did not pay the fines by September 4, 1992.

The defendant did not pay either of the two fines and was therefore suspended effective September 5, 1992.¹³He appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book§ 4023andGeneral Statutes § 51-199(c).We now affirm.

I

Before turning to the defendant's specific claims, it is appropriate to discuss attorney disciplinary proceedings and the exact nature of the claims asserted by the defendant in this appeal.We have held that "[j]udges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline the members of the bar....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....[T]he judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct....In carrying out these responsibilities ... the [statewide grievance committee] is an arm of the court...."(Citations omitted; internal quotation marks omitted.)Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 525-26, 576 A.2d 532(1990).In presentment proceedings, the statewide grievance committee must prove by clear and convincing evidence that the attorney misconduct it alleges has occurred.Statewide Grievance Committee v. Friedland, 222 Conn. 131, 135, 609 A.2d 645(1992);Statewide Grievance Committee v. Presnick, 215 Conn. 162, 171-72, 575 A.2d 210(1990)(Presnick I );Statewide Grievance Committee v. Presnick, 216 Conn. 127, 134, 577 A.2d 1054(1990)(Presnick II ).If the trial court finds that misconduct has occurred, however, an attorney's "relation to the tribunal, and the character and purpose of the inquiry, are such, that unless it clearly appears that [the attorney's] rights have in some substantial way been denied him, the action of the court will not be set aside upon review."(Internal quotation marks omitted.)Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 487, 595 A.2d 819(1991), cert. denied, --- U.S. ----, 112 S.Ct. 1170, 117 L.Ed.2d 416(1992);Presnick II, supra, 216 Conn. at 132, 577 A.2d 1054;In re Durant, 80 Conn. 140, 150, 67 A. 497(1907).In presentment proceedings, the court conducts a trial de novo.Presnick I, supra, 215 Conn. at 167, 575 A.2d 210.

The trial court held that the defendant had violated rules 3.4(c)and8.4(d) by openly disobeying Judge Norko's repeated orders to appear in court for pretrial conferences.The defendant does not claim that the trial court abused its discretion in making those findings.¹⁴His claims, rather, resemble affirmative defenses, i.e., that because criminal pretrial conferences are unconstitutional or unjust, his conduct should be excused.¹⁵We therefore need not review the propriety of the trial court's findings that the defendant violated rules 3.4(c)and8.4(d).¹⁶

II

The defendant first claims that the practice of scheduling mandatory pretrial conferences in criminal matters is unconstitutional under the state and federal constitutions.He specifically challenges Practice Book§§ 700 through 706, which permit trial courts to schedule disposition conferences for criminal cases assigned for jury trials, and to compel the attendance of the parties and their attorneys.¹⁷The defendant claims that pretrial conferences ordered pursuant to these Practice Book provisions violate a criminal defendant's right against self-incrimination under the fifth amendment to the United States constitution, ¹⁸ the right to a speedy trial under the sixth amendment to the United States constitution, ¹⁹ and the right to a jury trial guaranteed by article first, § 19, of the Connecticut constitution.²⁰

As a preliminary matter, we note that pretrial negotiations play a critical role in the criminal justice system.In Szarwak v....