Statewide Grievance Committee v. Spirer

• Decision Date: 26 August 1997
• Docket Number: No. 15852,15852
• Citation: 699 A.2d 1047,46 Conn.App. 450
• Court: Connecticut Court of Appeals
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Alan SPIRER.

Page 1047

699 A.2d 1047

46 Conn.App. 450

STATEWIDE GRIEVANCE COMMITTEE v. Alan SPIRER.

No. 15852.

Appellate Court of Connecticut.

Argued March 3, 1997.

Decided Aug. 26, 1997.

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

Elliot R. Warren, Westport, for appellee (defendant).

Before DUPONT, C.J., and SCHALLER and SPEAR, JJ.

DUPONT, Chief Judge.

The statewide grievance committee (committee) appeals from the judgment of the trial court ordering a six month suspension of the defendant, Alan Spirer, from the practice of law. The committee's sole claim on appeal is that the period of suspension should have been longer.

After a trial to the federal court, Dorsey, J., the defendant was convicted on June 28, 1995, of violating U.S.C. 18, § 1344(a)(1) and (a)(2) ¹, and U.S.C. 18, § 2, ² for defrauding a financial institution and for aiding and abetting an offense against the United States, respectively. He was sentenced to probation of three years, and was ordered to pay $7030.80 for the cost of his supervision, restitution in the amount of $75,000, and a fine of $5000. In addition, the defendant was confined to his home for one year under an electronic monitoring system, and was required to perform four hours of community service per week in a local legal aid agency for the first two years of the probation.

The committee filed a presentment in the trial court pursuant to Practice Book § 28B.1 ³ in order to seek the defendant's suspension from the practice of law. The trial court suspended the defendant from the practice of law for six months. During the presentment proceeding, the committee did not argue to the trial court that the defendant should be disbarred, nor did it argue for a specific term of suspension, although it argued that the defendant should be suspended for some period of time.

The events that led to the defendant's arrest and sentencing in federal court and suspension from the practice of law in state court are those that follow. The defendant was a named partner in the law firm of Spirer, Nasser & Marcus in Westport. Various members of the firm developed a scheme whereby financially distressed homeowners could refinance their homes through what was purported to be a sale of the property. The firm represented Comfed Savings Bank, Comfed Mortgage Company, and the Swiss Conservative Group (Swiss).

The transactions organized by the defendant's firm involved situations where a "buyer" who was not a bona fide purchaser, but instead a friend or relative of the "seller," would purport to "buy" the property from the "seller" and would lease the property back to the "seller." Swiss was responsible for providing a "buyer" if the "seller" did not have one already. Swiss would arrange a new mortgage such that the "buyer's" monthly lease payment would equal the amount of the mortgage payment on the property. The "seller" and the "buyer" would execute four agreements: a contract for the sale of real property, a lease, an option agreement, and a three party agreement between the "seller," the "buyer" and Swiss. The contract of sale, which was the only one of the four agreements that the mortgagee bank was ever given, described the purported sale. The lease arranged for the "buyer" to pay the mortgage as the lease payment. The option agreement gave the "seller" the ability to regain title to the property. Finally, the third party agreement provided for a fee to Swiss equaling 20 percent of the "sale price" of the property. In effect, the mortgagee bank was led to believe that it was lending to a bona fide purchaser, when in fact there was no actual sale being made.

The defendant's firm participated as closing attorneys in several transactions of this kind between February, 1988, and May, 1989. The firm was required by the Comfed Savings Bank to fill out a United States Department of Housing and Urban Development Statement, Form HUD-1 (HUD-1). The closing attorney needed to certify on that form that the funds distributed were a true and accurate accounting of the transaction. Here, the certification was false. The trial court found that although the defendant made it clear to his partners that he did not approve of these transactions, he was fully aware of the transactions and did nothing to stop the fraudulent activity. In addition, the trial court found that the defendant was aware that the HUD-1 forms were being falsified. The defendant's conviction in federal court arose out of a transaction that began in September, 1988.

The committee claims on appeal that the trial court abused its discretion when it (1) suspended the defendant from the practice of law for only six months, and (2) did not discipline the defendant further because of his admission at the presentment hearing that he had made certain misrepresentations in federal court.

Hearings concerning the eligibility to practice law of attorneys who have been convicted of a felony in Connecticut are governed by Practice Book § 28B and by General Statutes § 51-91a. ⁴ The statute, on its face, applies only to felony convictions in state court because it provides that "[a]fter sentencing an attorney who has been convicted of a felony, the court shall hold a hearing on the issue of the eligibility of such attorney to continue in the practice of law in this state." Thus, the statutory language contains an assumption that the court that convicts the attorney is the same one that sanctions him, which would not be the case if an attorney was convicted in federal court or in another state. This statute gives the trial court the power to determine, under the circumstances of each case, what sanction is appropriate. Under the statute, an attorney convicted of a felony in Connecticut may be disbarred, suspended, or disciplined in some other manner, in the discretion of the trial court. The statute is the only substantive statute in Connecticut that outlines the appropriate sanctions for attorneys convicted of felonies. ⁵

There is no statute or rule of practice that specifically deals with the length of suspension, if suspension is deemed the appropriate discipline by the trial court, for an attorney convicted of a felony in another jurisdiction, although Practice Book § 28B.1 provides for the procedural aspects of this type of case. There is a void in the statutes and rules of practice concerning such cases. The issue, which is one of first impression in Connecticut, is whether § 51-91a should be applied even though it does not facially concern the discipline of attorneys convicted of felonies in other jurisdictions. ⁶ If the statute should be applied, we would then need to determine whether the trial court had any discretion as to the period of suspension to be imposed in this case, once it had determined that the defendant should be suspended for some period of time from the practice of law. ⁷

The committee refers to § 51-91a as though it applies, but makes no argument in reference to it. The defendant recognizes that § 51-91a does not specifically apply, but argues in the alternative that the statute, if applicable, allows a range of sanctions, including suspension, disbarment or other discipline. The defendant also argues that the portion of the statute providing for specific periods of suspension for the commission of class A and class B felonies, in the event the court chooses suspension, does not apply because the maximum sentence for his crime at the time of its commission was five years, which is a class D felony, under Connecticut law. The defendant also argues that since § 51-91a does not apply to a federal felony, the only authority that this court can look to in determining the latitude the trial court had in imposing a sanction is Practice Book § 28B.1, which specifically deals with the procedure for the discipline of attorneys convicted of a felony in another jurisdiction. That rule, however, makes no specific provision for any particular sanction or for any particular period of suspension, depending upon the severity of the crime.

We have already concluded that § 51-91a facially concerns the discipline of attorneys convicted of felonies in this state. The statute mandates specific periods of suspension for the conviction of felonies classified by Connecticut statutes as A and B felonies. We now must determine whether, in the absence of any other statute or rules of practice governing the discipline of attorneys convicted of A or B felonies in other jurisdictions, the statute should also be applied when there has been a conviction of these felonies in other jurisdictions.

We first examine the rules of the Superior Court. Practice Book § 28B relates to the discipline of attorneys convicted of a felony "in this state" and specifically provides that "[a]fter ... hearing, the judge shall enter an order dismissing the matter or imposing discipline upon such attorney in the form of suspension for a period of time, disbarment, or such other discipline as the judge deems appropriate." Thus, the court is given, under § 28B, discretion ranging from dismissal to reprimand.

Section 28B.1 relates to the procedure for the discipline of attorneys convicted of felonies in jurisdictions other than in Connecticut, and, contrary to § 28B, makes no mention of any sanction other than suspension or disbarment. Section 28B.1 mandates no specific terms of suspension for the conviction of any felonies. It simply states that the sole issue of a presentment proceeding is the "extent of the final discipline to be imposed." We recognize that the language of § 51-91a must be "informed by the judiciary's responsibility for governing attorney conduct." Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989). Because the judiciary's rules of practice, Practice Book §§ 28B and 28B.1, do not provide guidance in this case, we look to § 51-91a to determine whether we should apply its provisions to this case.

...