Statewide Grievance Committee v. Rapoport

• Decision Date: 09 February 2010
• Docket Number: No. 30758.,30758.
• Citation: 987 A.2d 1075,119 Conn.App. 269
• Court: Connecticut Court of Appeals
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Jonathan I. RAPOPORT.

987 A.2d 1075

119 Conn.App. 269

STATEWIDE GRIEVANCE COMMITTEE v. Jonathan I. RAPOPORT.

No. 30758.

Appellate Court of Connecticut.

Argued November 17, 2009.

Decided February 9, 2010.

Jonathan I. Rapoport, pro se, the appellant (defendant).

Kimberly A. Knox, with whom was Kenneth J. Bartschi, for the appellee (plaintiff).

LAVINE, BEACH and PELLEGRINO, Js.

BEACH, J.

This is an appeal by Jonathan I. Rapoport, an attorney suspended from the practice of law, from the judgment of the trial court denying his application for reinstatement to the bar of this state. On appeal, he claims that (1) the court improperly applied an abuse of discretion standard in its consideration of the report and recommendation of the standing committee on recommendations for admission to the bar for Fairfield County (committee), (2) when the court accepted the committee's recommendation, it improperly disregarded the order suspending him from the practice of law for five years and (3) the court and the committee violated his due process rights in various ways. We affirm the judgment of the trial court.

The record discloses the following procedural history and relevant facts. In April, 2001, Rapoport pleaded guilty to three counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2).¹ Rapoport admitted to having fondled and manipulated the genitalia of three boys, who were all under the age of sixteen. The court, Hon. Martin L. Nigro, judge trial referee, sentenced Rapoport to thirty years incarceration, execution suspended after three years, and thirty-five years probation.

Following Rapoport's felony conviction, the statewide grievance committee filed a presentment. Pursuant to Practice Book § 2-40(e), the matter was referred to Judge Nigro, who was the sentencing judge. Following a hearing, Judge Nigro issued a decision on January 3, 2002, in which he concluded that Rapoport "should be suspended from the practice of law for a term of five years, retroactive to September 6, 2001, that is, suspended until September 6, 2006. By that time, he shall have been released from the custody of the commissioner of correction, either from confinement or parole, his electoral rights shall be restored ... he shall be under the supervision of the probation department and of special services, and shall have had the opportunity to demonstrate whether he would be worthy for reinstatement under the provisions of Practice Book § 2-53(d)."

Rapoport was released from prison in April, 2004. In August, 2007, he filed in the Superior Court an application for reinstatement to the bar. Pursuant to Practice Book § 2-53(a), the Superior Court referred the application to the committee. Following hearings on the matter, the committee issued a report. The committee found that Rapoport was not presently fit to practice law and recommended that the court deny Rapoport's application for reinstatement.

Following a hearing, the court, a three judge panel,² issued a memorandum of decision. The court determined that the committee did not act arbitrarily, unreasonably, in abuse of its discretion or without a fair investigation of the facts. Accordingly, it accepted the committee's recommendation and denied Rapoport's application for reinstatement to the bar. This appeal followed.

I

Rapoport first claims that the court improperly applied an abuse of discretion standard to the consideration of the committee's recommendation. We disagree.

The issue of whether the appropriate standard of review was used presents a question of law over which our review is plenary. See Adams v. State, 259 Conn. 831, 837, 792 A.2d 809 (2002); see also Scott v. State Bar Examining Committee, 220 Conn. 812, 821-22, 601 A.2d 1021 (1992).

The standard that the trial court is to apply when reviewing the committee's recommendation is well settled. "The standard of review in cases involving admission or readmission to the bar has been clear since it was announced by this court in 1906 in O'Brien's Petition, [79 Conn. 46, 55-56, 63 A. 777 (1906), overruled in part on other grounds by In re Application of Dinan, 157 Conn. 67, 72, 244 A.2d 608 (1968)]." Scott v. State Bar Examining Committee, supra, 220 Conn. at 823, 601 A.2d 1021. In O'Brien's Petition, supra, at 55, 63 A. 777, our Supreme Court "held that the [Superior Court] had `rightly declined to hear evidence as to questions the decision of which was entrusted to the State bar examining committee' and that it was `proper for [the court] to inquire whether the approval of the bar was withheld after a fair investigation of the facts.' We have since adhered to that rule generally, stating that the issue before the court is whether the committee or the bar ... acted arbitrarily or unreasonably or in abuse of its discretion or without affair investigation of the facts." (Emphasis added.) In re Application of Warren, 149 Conn. 266, 273, 178 A.2d 528 (1962); see also In re Application of Koenig, 152 Conn. 125, 133, 204 A.2d 33 (1964) ("the court will determine whether the committee acted fairly and reasonably or from prejudice and ill will in its consideration of the application").

Rapoport does not claim that the court improperly failed to apply this standard but, rather, he disagrees with the use of the standard itself in the readmission context. Citing the different sections of the rules of practice for admission to the bar; Practice Book § 2-3 through 2-10, 2-12; and reinstatement to the bar; Practice Book § 2-53; he argues that it is improper to employ the same standard in cases involving readmission to the bar as is used in cases involving admission to the bar. He urges that a less deferential standard should be used in cases involving readmission.

Our Supreme Court very clearly has stated the standard to be employed in cases involving readmission to the bar. It is well established that "the trial court must determine whether the standing committee, in recommending a denial of an application, `acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts.' Scott v. State Bar Examining Committee, [supra, 220 Conn. at 818], 601 A.2d 1021." Statewide Grievance Committee v. Klein, 86 Conn.App. 338, 340, 862 A.2d 303 (2004).

We decline Rapoport's invitation to change this standard. It is not within our power as an intermediate appellate court to overrule Supreme Court authority. See State v. Fuller, 56 Conn.App. 592, 609, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S.Ct. 262, 148 L.Ed.2d 190 (2000).

II

Rapoport next claims that the court improperly disregarded Judge Nigro's January 3, 2002 order, which imposed a five year suspension from the practice of law, when it determined that his application should not be granted. We disagree.

Review of the court's decision, following the committee's recommendation, is plenary. See Scott v. State Bar Examining Committee, supra, 220 Conn. at 823, 601 A.2d 1021 ("[b]ecause the trial court exercises no discretion, but rather is confined to a review of the record before the [committee], we are not limited to the deferential standard of `manifest abuse' or `injustice' when reviewing its legal conclusions about the adequacy of the evidence before the [committee]").

The following additional facts are relevant to our resolution of this issue. In its report, the committee determined that Rapoport did not possess the present fitness to practice law and issued a recommendation that the court deny Rapoport's application for reinstatement. In determining whether Rapoport had met his burden of proving present fitness to practice law,³ the committee considered, inter alia, his moral character in light of the amount of time that had passed since his offenses. The committee noted that "for his entire adult life, [Rapoport] engaged in illegal and immoral conduct. `A redemptive and rehabilitative life requires the passage of time for documentation. The more serious the misconduct, the more time required to meet the burden of moral trustworthiness.' In re Application of Avcollie, 43 Conn. Supp. 13, 22-23, 637 A.2d 409 (1993). Considering the nature and seriousness of [Rapoport's] misconduct, the committee feels that insufficient time has passed for [Rapoport] to be deemed morally trustworthy." (Emphasis added.) In its memorandum of decision, the court determined that "[t]he committee's concern about the short duration of time since [Rapoport's] release from prison and his potential risk to the community are borne out by the evidence presented at the hearing and the record as a whole."⁴

Rapoport argues that Judge Nigro ordered suspension for five years and five years only, and that it was thus improper for the committee to determine that he was not fit to practice law for the reason that an insufficient period of time had passed since his offenses and for the court to take that determination of the committee into consideration when denying his application for reinstatement. The issue of whether a sufficient period of time had elapsed following suspension for him to be reinstated, Rapoport contends, was not before the committee or the court because it conclusively had been determined by Judge Nigro's order.

The court's ruling simply was not inconsistent with Judge Nigro's order. Judge Nigro's order imposed sanctions following a presentment proceeding.⁵ Judge Nigro ordered that Rapoport be "suspended from the practice of law for a term of five years," after which time he "shall have had the opportunity to demonstrate whether he would be worthy for reinstatement under the provisions of Practice Book § 2-53(d)." After more than five years had passed, Rapoport applied for reinstatement pursuant to Practice Book § 2-53.⁶ The committee then properly examined whether Rapoport possessed present fitness to practice law. "[T]he appropriate inquiry when deciding whether to grant admission to the bar is whether...