Statewide Grievance Committee v. Rozbicki

• Citation: 219 Conn. 473,595 A.2d 819
• Decision Date: 09 July 1991
• Docket Number: No. 14101,14101
• Court: Supreme Court of Connecticut
• Parties: STATEWIDE GRIEVANCE COMMITTEE v. Zbigniew S. ROZBICKI

Page 819

595 A.2d 819

219 Conn. 473

STATEWIDE GRIEVANCE COMMITTEE v. Zbigniew S. ROZBICKI

No. 14101.

Supreme Court of Connecticut.

Argued March 21, 1991.

Decided July 9, 1991.

Wesley W. Horton, Hartford, with whom were Francis J. MacGregor, Torrington, and Paul J. McQuillan, New Britain, for appellant (defendant).

Seymour N. Weinstein, Stamford, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and FRANCIS X. HENNESSY, JJ.

COVELLO, Associate Justice.

This is an appeal from a judgment rendered on a presentment in which the Superior Court concluded that the defendant was guilty of professional misconduct. The procedural facts are as follows: on November 18, 1985, Helen Huybrechts filed a complaint with the Litchfield Grievance Panel alleging, inter alia, that the defendant (1) was suing her for legal fees she had not agreed to pay; (2) had purchased her home and two parcels of land for less than fair value; and (3) had received funds due her from a dissolution proceeding without accounting for them. On November 19, 1987, after the grievance panel had found probable cause, the Statewide Grievance Committee (grievance committee) conducted a hearing and determined that the defendant was guilty of professional misconduct. The grievance committee directed that a presentment be filed against the defendant in Superior Court. On May 10, 1988, counsel for the grievance committee filed a presentment pursuant to Practice Book § 31 alleging that the defendant committed professional misconduct. The presentment, in addition to describing the attendant factual circumstances, referred to specific sections of the Code of Professional Responsibility in describing the defendant's misconduct. ¹ On June 10, 1988, the defendant filed a motion to dismiss the presentment based upon the failure of the subcommittee of the grievance committee to render a decision within ninety days of the probable cause determination as required by General Statutes § 51-90g(c). ² The trial court granted the motion. In response to an appeal by the grievance committee, we vacated the judgment of the trial court granting the motion to dismiss and remanded the matter for a determination of the merits of the complaint. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989). On June 5, 1990, following lengthy hearings, the trial court filed its memorandum of decision, concluding that, under the totality of circumstances, the defendant was guilty of professional misconduct. ³ The trial court rendered judgment suspending the defendant's right to practice law for three months. The defendant again appealed. We transferred the matter to ourselves pursuant to Practice Book § 4023 and now affirm.

The trial court found that the complainant and the defendant had maintained a social and professional relationship from 1978 to 1985 during which time the defendant had undertaken to represent the complainant in a marital dissolution action, had lent money to the complainant for payment of her mortgage and personal needs, and had advanced funds for her litigation expenses. On October 31, 1980, the complainant quitclaimed 22 acres of land to the defendant in payment of legal services previously rendered and billed to her. The trial court concluded that none of the aspects of this transaction constituted professional misconduct.

In due course the dissolution action went to judgment. The defendant in that action appealed and the defendant here undertook to represent the complainant in connection with the appeal. The trial court found that the defendant had never submitted a bill to the complainant advising her of the full costs of his legal services for the appeal. On February 24, 1982, the complainant quitclaimed another 30 acre parcel to the defendant in payment of the additional legal fees. The trial court concluded that by failing to disclose fully the costs of his representation to date and by failing to make an unequivocal effort to ensure that the complainant obtained independent counsel in connection with this second transfer, the defendant was guilty of professional misconduct.

The trial court further found that on January 6, 1985, L. Warfield Ogden had offered to buy the complainant's home for $250,000, provided that the complainant took back a purchase money mortgage of $37,500. On the advice of the defendant, the complainant rejected this offer. Ogden thereafter amended his offer by eliminating the purchase money mortgage. The defendant, however, at a later meeting with Ogden's attorney, informed him that the complainant was unwilling to repair the roof and that the defendant himself was considering purchasing the property. The complainant had, in fact, offered to sell the property to the defendant several times in the past. Ogden thereafter withdrew his offer.

On January 18, 1985, the defendant sent a letter to the complainant indicating that there were outstanding legal fees of about $5300. The trial court also found that on January 22, 1985, the defendant signed a contract with the complainant to sell him her home for $232,500 with a credit of $7500 for roof repairs and damage done by a tenant. The defendant had arranged for attorney Walter Gradowski to represent the complainant in connection with the transaction but had not first informed Gradowski that he would be representing the complainant. The defendant thereafter provided all the essential terms of the contract to Gradowski. Although the closing date had originally been set for March 1 1985, the closing date was moved to March 4, because the complainant was unable to vacate by the earlier date. On March 2, 1985, the defendant prepared a statement of the balance due for his legal services in connection with the appeal and for work still in progress. This bill totaled $7900. Gradowski incorporated this sum into the closing statement. This was unacceptable to the complainant who refused to close at that date. The trial court determined that the defendant had made no disclosure to her that she would be responsible for some or all of these legal fees at the closing, that some of the fees related to cases not yet completed, and that no invoice for the most recent legal services had been provided to the complainant prior to March 2, 1985. The trial court concluded that the defendant was guilty of professional misconduct in that he had overreached his client in advancing his own interests, by failing to inform the complainant of his fees until the closing date and by discouraging a potential buyer. Based upon all of the foregoing, the trial court then ordered the defendant's suspension for three months.

The defendant has appealed, claiming that the trial court improperly: (1) denied the defendant's motion to dismiss the presentment for failure to comply with Practice Book § 31(a); (2) made findings on issues not contained in the presentment; and (3) made incorrect factual findings relative to the claim that he had committed misconduct in the purchase of the complainant's house. The defendant also claimed that DR 1-102(A)(6) and DR 7-101(A) of the Code of Professional Responsibility are unconstitutionally vague and violate the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

I

The defendant first claims that the presentment should have been dismissed for failure to comply with Practice Book § 31(a). Practice Book § 31(a) states, in pertinent part, that: "Any interim proceedings to the contrary notwithstanding, a hearing on the merits of the [presentment] shall be held within sixty days of the date the complaint was filed with the court." (Emphasis added.)

The relevant dates are as follows. On April 28, 1988, the grievance committee filed the presentment. On May 23, 1989, we remanded the matter to the trial court for a hearing on the merits. On February 20, 1990, the hearing commenced, 22 months after the presentment was filed and 9 months after we ordered the remand. The defendant argues that the language of § 31(a) mandates dismissal under these circumstances.

The rules of statutory construction apply equally to statutes and rules of practice; Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); and in the interpretation of statutes the word "shall" may have a meaning that is directory rather than mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). 'Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.' Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969)." Fidelity Trust Co. v. BVD Associates, supra, 196 Conn. at 278, 492 A.2d 180.

Practice Book § 31(a) is designed to encourage order and dispatch in the prosecution of presentments. This section is cast in affirmative words, contains no penalty for noncompliance and purports only to establish a time limit for acting upon complaints. We conclude therefore that its terms are directory, and not mandatory, and that failure to meet its time requirements does not deprive the court of...