320 Conn. 759
136 A.3d 1198
Josephine Smalls MILLER
Supreme Court of Connecticut.
Argued Nov. 13, 2015.
Decided April 5, 2016.
[136 A.3d 1198]
Josephine Smalls Miller, self-represented, the plaintiff in error.
Alayna M. Stone, assistant attorney general, with whom were Jane R. Rosenberg, assistant attorney general, and, on the
[136 A.3d 1199]
brief, George Jepsen, attorney general, for the defendant in error.
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
[320 Conn. 761]
This case is before us on a writ of error brought by the plaintiff in error, Josephine Smalls Miller, who claims that the Appellate Court abused its discretion in suspending her from the practice of law before that court for a period of six months, in addition to imposing other sanctions, due to her failure to comply with Appellate Court rules and deadlines, and for filing a frivolous appeal. We disagree and, accordingly, dismiss the writ of error.
The record reveals the following facts and procedural history. Miller is an attorney licensed to practice law in the state of Connecticut. On November 3, 2014, the Appellate Court issued an order directing her to appear before an en banc panel of that court and to show cause “why she should not be sanctioned ... for her failure [as appellate counsel] to meet deadlines and to comply with the rules of appellate procedure in [Addo v. Rattray, Docket No.] AC 36837, [in which] she ... failed to timely file the appellant's brief and appendix in compliance with the appellate rules; for her failure [as appellate counsel] to meet deadlines and to comply with the rules of appellate procedure and [court] orders ... in Willis v. Community Health Services, [Docket No.] AC 36955, and Cimmino v. Marcoccia, [Docket No.] AC 35944, and for her presentation of a frivolous appeal ... [on behalf of the plaintiff] in Coble v. [Board of Education, Docket No.] AC 36677.” The order further stated that “[t]he sanctions being considered by the Appellate Court include a prohibition against appearing in the Appellate Court or filing any papers in the Appellate Court for a period of time, the imposition of a fine
[320 Conn. 762]
pursuant to General Statutes § 51–84,1 and costs and payment of expenses, including attorney's fees, to the opposing part[ies].” (Footnote added.) The Appellate Court also ordered opposing counsel in three of the aforementioned cases to appear at the hearing and to present argument on the following then pending motions: (1) the defendant's motion for attorney's fees in Coble; (2) the plaintiff's motion to open the dismissal of the appeal in Willis; and (3) the plaintiff's motion to set aside rule nisi No. 142267 in Cimmino.
On December 3, 2014, the Appellate Court conducted a hearing at which Miller presented oral argument as to why she believed sanctions in the aforementioned matters were unwarranted. Miller also submitted a written memorandum of law in support of her position.
With respect to the claim that she had failed to properly file the appellant's brief and appendix in Addo, Miller argued that she did, in fact, file those materials on two separate dates, September 15, 2014, and October 4, 2014. Miller asserted that someone in the Appellate Clerk's Office must have tampered with the Judicial Branch website (website) to make it appear that she had not filed them. In her memorandum of law, Miller accused the Appellate Clerk's Office of “serious misconduct,” stating that, “[o]bviously, someone has deliberately manipulated [the]
[136 A.3d 1200]
electronic website information in order to justify the claim that no filing has been made by [her].”
In response to Miller's assertions, one of the judges of the Appellate Court explained that the issue was not that Miller had not filed the brief and appendix but,
[320 Conn. 763]
rather, that she had failed to file the certifications that must accompany them pursuant to Practice Book § 67–2(g),2 (i),3 and (j),4 and, as a consequence, the materials were rejected by the Appellate Clerk's Office. Miller responded that she was not aware that she had not filed the required certifications until early November, 2014, around the time of the order to show cause, and that she subsequently filed the materials on November 10, 2014. The record reveals, however, that, by letter dated September 22, 2014, the Appellate Clerk's Office informed Miller that the brief and appendix she had
[320 Conn. 764]
filed on September 15, 2014, “fail[ed] to comply with the requirements of ... [§] 67–2.... The electronic submission and the paper filings must be certified [in accordance with that rule of practice].... Please resubmit the electronic version of the brief and appendix containing the required certification. Please submit proper certifications for the printed brief and appendix and please also submit the electronic confirmation receipt for the refiled electronic version.” Miller subsequently received a second letter, entitled “SECOND NOTICE,” dated October 10, 2014, stating that the brief and appendix still did not comply with the requirements of § 67–2 and, therefore, that they would have to be refiled. As in the first letter, the second letter set forth in detail what Miller needed to do to comply with § 67–2. The letter concluded: “Please immediately resubmit the electronic version of the brief and appendix containing the required certifications for the uploaded brief and appendix. Please immediately submit all of the proper certifications listed [in the second letter] for the printed
[136 A.3d 1201]
brief and appendix. Please also submit the electronic confirmation receipt for the refiled electronic version.” As of the date of the show cause hearing, Miller had not filed the required certifications and confirmation in Addo.
With respect to the claim that she had failed to timely file the brief and appendix in Cimmino, Miller argued that she had not filed those materials because she did not discover until the week that they were due that the trial transcript, which had been delivered to her more than one year before the show cause hearing, was incomplete, and, according to Miller, she could not complete the brief without the missing transcript pages. The record reveals that, prior to the issuance of the order to show cause, Miller had been granted two extensions of time to file the appendix and brief. Miller was granted a four month extension on September 24, 2013,
[320 Conn. 765]
followed by a six month extension on December 16, 2013, with a due date for the brief and appendix of July 1, 2014. Six weeks after that date, on August 19, 2014, Miller requested a third extension, which the Appellate Court denied. On August 26, 2014, the Appellate Court issued an order nisi to Miller advising her that the appeal in Cimmino would be dismissed if the brief and appendix were not filed by September 9, 2014. The record indicates that, at the time of the December 3, 2014 show cause hearing, those materials still had not been filed.
Miller also presented argument in support of her motion in Willis to open the dismissal of that appeal. The Appellate Court dismissed the appeal after Miller failed to respond to a July 31, 2014 order nisi informing her that the appeal would be dismissed if, by August 11, 2014, she did not file a certificate indicating the estimated date of delivery of the transcript pursuant to Practice Book § 63–8(b). Miller, a solo practitioner, explained that she was out of the country when the order was issued and that the appeal was dismissed before she returned. Miller further explained that the transcript in question had been filed with the Appellate Court on February 24, 2014, in connection with an earlier appeal in the case, which the Appellate Court had dismissed for lack of a final judgment. Miller explained that, after obtaining a final judgment, she refiled the appeal without realizing that she had to refile the transcript and certification. Miller argued that the mere failure to file those documents should not serve as a ground for imposing sanctions or for the dismissal of the appeal. In response, opposing counsel argued that, if Miller's only misstep in Willis had been a failure to file the transcript and corresponding certification, then she would agree that a dismissal would be too severe a sanction. Opposing counsel argued, however, that there were many other examples of Miller's failure to diligently prosecute the appeal, including Miller's failure
[320 Conn. 766]
to appear at a previously scheduled hearing and her act of falsely certifying that certain documents had been sent to opposing counsel. When a judge of the Appellate Court asked Miller, at the show cause hearing, whether, prior to leaving the country, she had made arrangements for another attorney to cover her practice, Miller responded that she had not done so because she did not believe that there was any reason to make such arrangements. When asked what assurance she could provide the court that such lapses would not occur in the future, Miller stated that, because of her limited resources as a solo practitioner, she could assure the court only that she would try to find someone to cover her practice on a pro bono basis if she were to travel again for an extended period of time. Miller also admonished the court that, “[r]ather than being sanctioned, [she] should be commended” for her work because, according
[136 A.3d 1202]
to Miller, all of her appellate work is performed on a pro bono basis. Miller further indicated that the Appellate Court's treatment of her appeared to be racially motivated and reminded her of how she was treated in the late 1970s as a court employee in Georgia.
Finally, the Appellate Court considered the defendant's motion for attorney's fees in Coble as well as Miller's argument that sanctions were unwarranted in that case because the appeal was not frivolous. The record reveals that the action in Coble was originally brought in May, 2009. In July, 2010, the trial court rendered a judgment of nonsuit on the basis of the plaintiff's failure to, inter alia, comply with the defendant's request to revise. See Practice Book § 10–37. Miller, on behalf of the plaintiff, thereafter filed a motion to open the judgment pursuant to General Statutes § 52–212(a), which was denied. That ruling was appealed to the Appellate Court, which determined that the trial court did not abuse its discretion in denying the motion to
[320 Conn. 767]
open the judgment and, accordingly, affirmed the trial court's judgment.5
In 2013, Miller refiled the action in Coble on behalf of the plaintiff in that case pursuant to the accidental failure of suit statute, General Statutes § 52–592. Thereafter, the defendant filed a motion for summary judgment. In a deposition of Miller taken in connection with that motion, she stated that the original action had failed because, as a solo practitioner, she had no one to teach her the “ins and outs” of Connecticut practice, and, as a result, she was “ignorant” of the rules of practice. Miller also stated that she was overwhelmed by work in her practice and had adopted a “hit or miss” approach to civil procedure.
The trial court granted the defendant's motion for summary judgment in Coble. In a subsequent articulation of its ruling, the court explained that the nonsuit in the original action was not the result of mistake, inadvertence or excusable neglect, and, therefore, Miller could not rely on the accidental failure of suit statute to refile the action. Specifically, the court stated: “In reading the extensive history outlined by the defendant in the initial motion and a review of the Appellate Court's [decision] denying the plaintiff's motion to set aside a dismissal of the previous matter, it is obvious that [Miller] appears [to have] exhibited an inherent failure to comply throughout the previous matter, as [w]as [n]oted by the Appellate Court, as well as failure to comply with various orders of [the trial] court. It was on that basis [that the trial] court found [and] does find again that, as a matter of law, the termination
[320 Conn. 768]
of the previous matter was not the result of mistake, inadvertence, or excusable neglect.” The trial court also granted the defendant's motion for a special finding pursuant to General Statutes § 52–226a6 that
[136 A.3d 1203]
the second action was meritless and not brought in good faith.
Miller, on behalf of the plaintiff in Coble, appealed to the Appellate Court, claiming that the trial court incorrectly determined that the earlier nonsuit was not the result of mistake, inadvertence or excusable neglect and, as a result, also improperly concluded that the accidental failure of suit statute did not apply. Thereafter, the defendant in Coble filed a motion to dismiss the appeal as frivolous, which the Appellate Court granted. In its order dismissing the appeal, the Appellate Court stated that “[t]he entire panel recommends that the full court [also] consider the imposition of sanctions against [Miller].” At the December 3, 2014 hearing to show cause, Miller argued that such sanctions were unwarranted because reasonable minds could differ as to whether the appeal was frivolous, as evidenced by the fact that one of the judges of the Appellate Court had voted to deny the defendant's motion to dismiss the appeal.
On December 9, 2014, the Appellate Court issued an order stating that, “[a]fter reviewing ... Miller's conduct in [Coble, Willis, Cimmino and Addo ], the Appellate Court has determined that [Miller] has exhibited a persistent pattern of irresponsibility in handling her professional obligations before [the Appellate] [C]ourt.
[320 Conn. 769]
... Miller's conduct has included the filing of [a] frivolous [appeal] and the failure to file, or to file in timely and appropriate fashion, all documents and materials necessary for the perfection and prosecution of appeals before [the Appellate] [C]ourt.
“[Miller's] conduct ... has threatened the vital interests of her own clients while consuming an inordinate amount of [the Appellate] [C]ourt's time and her opponents' resources.... Miller has neither accepted personal responsibility for the aforesaid conduct nor offered [the] court any assurance that such conduct will not be repeated, based [on] either her commitment to improving her knowledge of appellate practice and procedure or her institution of changes in her law practice to monitor her cases more effectively and ensure timely compliance with [the] rules of procedure.” In light of the foregoing, the Appellate Court suspended Miller from practice before that court for a period of six months with the exception of the appeal in Addo. The court further ordered that Miller, before being reinstated to practice before the court, be required to file a motion for reinstatement that includes an affidavit in which she (1) “commits herself to discharging her professional responsibilities before [the Appellate] [C]ourt in a timely and professional manner,” (2) “provides documentary proof of successful completion of a seminar on legal ethics and a seminar on Connecticut appellate procedure,” (3) “documents any other efforts since the date of [the court's] order to improve her knowledge of appellate practice and procedure,” and (4) “offers [the court] detailed, persuasive assurances that she has implemented changes in her law practice designed to ensure full compliance with the rules of appellate procedure, including a written plan indicating what procedures she has implemented in her office to ensure her compliance with the appellate rules and procedures and to protect her clients' interests.”
[320 Conn. 770]
Finally, the Appellate Court ordered “that these matters [be] referred to the Chief Disciplinary Counsel for review and further action as it is deemed appropriate.”
In separate simultaneous orders, the Appellate Court dismissed the appeal in Cimmino, denied the plaintiff's motion to
[136 A.3d 1204]
open the dismissal of the appeal in Willis, and denied the defendant's motion for attorney's fees in Coble.7 The Appellate Court permitted Miller to continue prosecuting the appeal in Addo, however, as long as Miller filed, within ten days of the issuance of the court's order, the missing “certifications ... [and] a copy of the November 10, 2014 electronic confirmation receipt indicating that the brief and appendix were submitted electronically in compliance with Practice Book [§] 67–2(g)....” When Miller failed to file those documents in a timely manner, however, the Appellate Court dismissed the appeal in Addo as well.
In her writ of error, Miller claims that the Appellate Court abused its discretion in suspending her from practice before that court because the conduct for which she was sanctioned does not violate rule 8.4 of the Rules of Professional Conduct,8 which, in Miller's view,
[320 Conn. 771]
provides the exclusive list of misconduct for which an attorney may be sanctioned. Indeed, Miller contends that “[t]here have been no reported cases found [in which] Connecticut courts have sanctioned an attorney for alleged failures to comply with rules of appellate procedure such as filing deadlines, electronic filing requirements, or the filing of a transcript.” Miller also argues that the sanctions that the Appellate Court imposed, namely, a six month suspension, referral to the Chief Disciplinary Counsel for consideration of whatever further action might be appropriate, and dismissal of Miller's four Appellate Court cases, were disproportionate to the alleged misconduct. Miller maintains, in fact, that a close examination of each of those cases “shows no irresponsibility” on her part. We are not persuaded by Miller's claims.
It is beyond dispute that courts “[have] the authority to regulate the conduct of attorneys and [have] a duty to enforce the standards of conduct regarding attorneys.” Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993) ; see also Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33, 474 A.2d 787 (1984) (“[i]t is an inherent power of the court to discipline members of the bar, and to provide for the imposition of reasonable sanctions to compel the observance of its rules” [internal quotation marks omitted] ). “There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court. The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is of ancient origin, having its roots in judgments ... entered at common law
[136 A.3d 1205]
... and dismissals.... That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order
[320 Conn. 772]
for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases.” (Internal quotation marks omitted.) Srager v. Koenig, 42 Conn.App. 617, 620, 681 A.2d 323, cert. denied, 239 Conn. 935, 936, 684 A.2d 709 (1996) ; see also Briggs v. McWeeny, 260 Conn. 296, 335, 796 A.2d 516 (2002) (“[a] court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what the sanction should be” [emphasis omitted; internal quotation marks omitted] ).
Disciplinary proceedings are “for the purpose of preserving the courts of justice from the official ministration of persons unfit to [practice] in them.” Ex parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 27 L.Ed. 552 (1883). “The proceeding to ... [suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender ... but the protection of the court.... Once the complaint is made, the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require.... [T]he power of the courts is left unfettered to act as situations, as they may arise, may seem to require, for efficient discipline of misconduct and the purging of the bar from the taint of unfit membership. [Statutes governing attorney discipline] are not restrictive of the inherent powers [that] reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct.... In [disciplinary] proceedings ... therefore, the attorney's relations 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.” (Citations omitted; internal quotation marks omitted.)
[320 Conn. 773]
Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238–39, 558 A.2d 986 (1989), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). “As with any discretionary action of the ... court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue ... is whether the ... court could have reasonably concluded as it did.... Therefore, whether this court would have imposed a different sanction ... is irrelevant.” (Citations omitted; internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 656, 775 A.2d 947 (2001). A uniform standard of clear and convincing evidence applies to attorney disciplinary proceedings, “regardless of the nature of the sanction ultimately imposed.”Statewide Grievance Committee v. Presnick, 215 Conn. 162, 171–72, 575 A.2d 210 (1990).
Applying the foregoing principles to the facts of the present case, we conclude that the Appellate Court did not abuse its discretion in suspending Miller from the practice of law before that court for a period of six months on the basis of her repeated failure to meet deadlines, to comply with the rules of practice, and for filing a frivolous appeal. See, e.g., Srager v. Koenig, supra, 42 Conn.App. at 621–24, 681 A.2d 323 (attorney suspended from practice before Appellate Court for six months on basis of repeated noncompliance with rules of practice and failure to timely file court documents). This court previously has observed that, “[i]n order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management.
[136 A.3d 1206]
Caseflow management is based [on] the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.” In re Mongillo, 190 Conn. 686, 690–91, 461 A.2d 1387 (1983), overruled in part on other grounds
[320 Conn. 774]
by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999). Thus, General Statutes § 51–84(a) provides that “[a]ttorneys admitted by the Superior Court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act.” Section 51–84(b) provides that “[a]ny such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.” Practice Book § 85–2, in turn, provides in relevant part that, in the appellate courts, “[a]ctions which may result in the imposition of sanctions include, but are not limited to,” the “[f]ailure to comply with rules and orders of the court,” “[r]epeated failures to meet deadlines,” and the “[p]resentation of a frivolous appeal or frivolous issues on appeal.” Practice Book § 85–2 further provides that “[o]ffenders will be subject, at the discretion of the court, to appropriate discipline, including the prohibition against appearing in the court or filing any papers in the court for a reasonable and definite period of time....”
Thus, Miller's contention that rule 8.4 of the Rules of Professional Conduct provides the exclusive list of misconduct for which an attorney may be sanctioned is patently frivolous. Nor is the present case, as Miller argues, the first in which an attorney has been sanctioned by a Connecticut court for failing to comply with the rules or orders of the court. Indeed, our case law is replete with examples of instances in which our courts have exercised their authority, whether inherent or pursuant to statute or the rules of practice, to sanction an attorney for such conduct. See, e.g., Thalheim v. Greenwich, supra, 256 Conn. at 635, 657, 775 A.2d 947 (court did not abuse its discretion in concluding that appropriate sanction for attorney who filed amicus curiae brief without first obtaining permission from court was “to read the Connecticut Practice Book, to listen to audiocassettes
[320 Conn. 775]
available from the Connecticut Bar Association pertaining to civil practice and procedure in Connecticut courts, and to certify to the court within four months that he had listened to the tapes and read the entire Connecticut Practice Book, including the rules concerning professional conduct” [internal quotation marks omitted] ); CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 386, 685 A.2d 1108 (1996) (appeal was dismissed on basis of attorney's failure to comply with rules of practice and court's order nisi), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999) ; see also Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. at 31, 34, 474 A.2d 787 (trial court did not abuse its discretion in dismissing case on basis of attorney's failure to appear for voir dire); In re Mongillo, supra, 190 Conn. at 690, 461 A.2d 1387 (“It is undisputed that a rule of the Superior Court required the appellant's attendance at the call of the calendar at 10 a.m. It is also undisputed that he was late. It is therefore not open to question that the Superior Court had the authority to impose a fine against the appellant for his tardiness.”); Venezia v. Kennedy, 165 Conn. 183, 184–85, 332 A.2d 102 (1973) (trial court did not abuse its discretion in dismissing case due to plaintiff's failure to prosecute case diligently).
[136 A.3d 1207]
In her brief to this court, Miller attempts to minimize the professional lapses that ultimately convinced the Appellate Court that it had no choice but to suspend her temporarily from practice before that court. She also argues that the record belies that court's determination that she exhibited a persistent pattern of irresponsibility in the handling of her cases. Miller's arguments reveal a disturbing disregard for or ignorance of the facts underlying this case. With respect to Cimmino, Miller argues that there is “no clear and convincing evidence that [she] knowingly or intentionally violated any appellate rule of practice.” Miller further maintains
[320 Conn. 776]
that “[t]he essence of the [A]ppellate [Court's] finding against [her] is that the trial [transcript was] ... not timely ordered.” Contrary to Miller's assertion, the Appellate Court did not dismiss the appeal in Cimmino because the transcript was not timely ordered. The Appellate Court dismissed the appeal because, after granting Miller two extensions to file the brief and appendix, she failed to file them when they were due on July 1, 2014. Instead, Miller waited six weeks and then filed a motion for an additional extension of time, which the Appellate Court had little choice but to deny pursuant to Practice Book § 66–1(e), which provides: “A motion for extension of time shall be filed at least ten days before the expiration of the time limit sought to be extended or, if the cause for such extension arises during the ten day period, as soon as reasonably possible after such cause has arisen. No motion under this rule shall be granted unless it is filed before the time limit sought to be extended by such motion has expired. ” (Emphasis added.) Thus, on August 26, 2014, the court informed Miller that the appeal would be dismissed if the brief and appendix were not filed within two weeks. As we previously noted, Miller missed that deadline as well.
With respect to Addo, Miller contends that the Appellate Court incorrectly concluded that she failed to file her brief and appendix in a timely manner. Miller maintains that “[o]ne or more persons with access to the [court's] official website appear to have tampered with the documents in order to give an appearance of a failure to file by [Miller].” Miller further argues that it is “shocking that the court should have so little regard for the integrity of its official website and documents and yet [admonish Miller] for alleged procedural violations.” On the contrary, what is shocking is Miller's persistence in making such reckless allegations when even a cursory review of the file in Addo reveals that
[320 Conn. 777]
they are wholly unfounded. As we previously indicated, prior to the issuance of the order to show cause in Addo, Miller was notified by the Appellate Court on two separate occasions that the brief and appendix she previously had filed in that case were not compliant with Practice Book § 67–2 and would have to be refiled. In light of these notices, which we can only assume Miller ignored or did not read, her repeated assertion that the brief and appendix were removed from the website in an effort to damage her credibility with the Appellate Court underscores the propriety of that court's determination not only that Miller's handling of her cases threatened the vital interests of her clients, but also that she had demonstrated a regrettable inability to accept personal responsibility for her professional mistakes.
With respect to Willis, Miller claims that the sole allegation in that case concerns the transcript that was not timely filed, which, according to Miller, provides insufficient cause for the Appellate Court to have denied her motion to set aside the
[136 A.3d 1208]
dismissal of the appeal in that case and to suspend her from practice before that court. As we previously indicated, the record reveals that the Appellate Court dismissed that appeal after Miller, who was out of the country at the time, failed to respond to an order nisi informing her that the appeal would be dismissed if she did not file the transcript certifications required by Practice Book § 63–8(b) within ten days. In response to questioning by the court, Miller stated that, prior to leaving the country, she had not arranged for anyone to cover her practice. She also did not dispute opposing counsel's assertion that her failure to file the transcript was not her only miscue in Willis but one of many, which included her failure to appear at a scheduled hearing and the filing of a false certification stating that certain documents had been sent to opposing counsel when, in fact, they had not. More important, as the Appellate Court noted, when
[320 Conn. 778]
Miller was asked to provide assurances to the Appellate Court that such conduct would not be repeated going forward, Miller could offer no such assurances. In light of the foregoing, the Appellate Court did not abuse its discretion in denying the motion to set aside the dismissal of the appeal in Willis. Nor did it abuse its discretion in considering Miller's transgressions in Willis as further reason to suspend her from practice before the Appellate Court until such time as she improved her knowledge of the appellate rules of practice and could offer that court persuasive assurances that she would implement the necessary changes in her law practice to ensure compliance with those rules.
Miller next maintains that the Appellate Court improperly sanctioned her for filing a frivolous appeal in Coble. We note that Miller did not file a petition for certification to appeal from the judgment of the Appellate Court dismissing the appeal but, instead, attempts to collaterally attack that judgment in this writ of error by arguing that the appeal was not frivolous. As we previously indicated, after the Appellate Court affirmed the trial court's judgment of nonsuit in Coble on the basis of Miller's failure to comply with the defendant's request to revise, Miller refiled the action in Coble pursuant to the accidental failure of suit statute. The defendant then moved for summary judgment on the ground that that statute did not apply because Miller's noncompliance with the rules of practice in the earlier filed action in Coble was not the result of mistake, inadvertence, or excusable neglect.9 In its memorandum
[320 Conn. 779]
of law in support of its motion for summary judgment, the defendant in Coble outlined in painstaking detail the torturous procedural history culminating in the judgment of nonsuit. In granting the motion for summary judgment in Coble, the trial court specifically relied on that history, as outlined in the defendant's motion for summary judgment, as the basis for its determination that the plaintiff in Coble could not avail herself of the accidental failure of suit statute. The trial court subsequently supplemented its decision with a special finding pursuant to § 52–226a that the refiled action in Coble was meritless and not brought in good faith. Miller did not seek an articulation of that finding.
[136 A.3d 1209]
On appeal to the Appellate Court from the granting of summary judgment in Coble, Miller did not challenge the trial court's determination that the action was meritless and not brought in good faith. Instead, she argued that the trial court incorrectly concluded that the accidental failure of suit statute did not apply because, according to Miller, her failure to comply with the rules of practice when she filed the initial action in Coble was the result of an honest misunderstanding of the applicable rules. Because Miller failed to challenge the trial court's determination that the refiled action in Coble was without merit and not brought in good faith, however, the Appellate Court properly credited that determination and granted the defendant's motion to dismiss the appeal as frivolous. In her writ of error, Miller again fails to explain why the trial court's judgment regarding the merits of the refiled action in Coble was improper. We, therefore, like the Appellate Court, have no occasion to disturb that determination.
Finally, Miller claims that the Appellate Court abused its discretion in referring her to the Chief Disciplinary Counsel without alleging the violation of any Rule of Professional Conduct or otherwise providing guidance as to the nature of the inquiry to be conducted. Miller
[320 Conn. 780]
also expresses concern that the referral could result in duplicative sanctions for the conduct described herein.
Although the order of referral could have been clearer, we do not understand it to be a request for an investigation into the specific conduct giving rise to this writ of error but, rather, a request for a determnation of whether Miller's conduct before the Appellate Court was part of a larger pattern of irresponsibility in Miller's handling of her professional obligations. As we have previously noted, “[j]udges ... possess theAlthough the order of referral could have been clearer, we do not understand it to be a request for an investigation into the specific conduct giving rise to this writ of error but, rather, a request for a determination of wh inherent authority to regulate attorney conduct and to discipline members of the bar.... 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.... In carrying out these responsibilities, these bodies act as an arm of the court.... Accordingly, a formidable array of [actions], including referrals to the [S]tatewide [G]rievance [C]ommittee for investigation into alleged misconduct, is available to courts and dissatisfied litigants who seek redress in connection with an attorney's ... conduct.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 552–54, 69 A.3d 880 (2013). The Appellate Court not only has the authority to refer an attorney to the Chief Disciplinary Counsel, it has an obligation to do so when, as in the present case, it concludes that that attorney's persistent pattern of missing deadlines and violating court rules threatens the vital interests of his or her clients. Of course, we do not know whether the Chief Disciplinary Counsel will find instances of neglectful or otherwise unacceptable conduct by Miller in the Superior Court, but, in light of the number and nature of Miller's transgressions in the Appellate Court, the Appellate Court certainly had the discretion to bring those transgressions to the attention of the Chief Disciplinary
[320 Conn. 781]
Counsel for whatever action, if any, may be appropriate with respect to Miller's conduct in the Superior Court.
The writ of error is dismissed.
In this opinion the other justices concurred.
1 General Statutes § 51–84 provides: “(a) Attorneys admitted by the Superior Court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act.
“(b) Any such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.”
2 Practice Book § 67–2(g) provides in relevant part: “Every attorney filing a brief shall submit an electronic version of the brief and appendix in accordance with guidelines established by the court and published on the judicial branch website. The electronic version shall be submitted prior to the timely filing of the party's paper brief and appendix pursuant to subsection (h) of this section.... Counsel must certify that electronically submitted briefs and appendices: (1) have been delivered electronically to the last known e-mail address of each counsel of record for whom an e-mail address has been provided; and (2) have been redacted or do not contain any names or other personal identifying information that is prohibited from disclosure by rule, statute, court order or case law.”
3 Practice Book § 67–2(i) provides: “The original and all copies of the brief filed with the supreme court or the appellate court must be accompanied by: (1) certification that a copy of the brief and appendix has been sent to each counsel of record in compliance with Section 62–7 and to any trial judge who rendered a decision that is the subject matter of the appeal; (2) certification that the brief and appendix being filed with the appellate clerk are true copies of the brief and appendix that were submitted electronically pursuant to subsection (g) of this section; (3) certification that the brief and appendix have been redacted or do not contain any names or other personal identifying information that is prohibited from disclosure by rule, statute, court order or case law; and (4) certification that the brief complies with all provisions of this rule. The certification that a copy of the brief and appendix has been sent to each counsel of record in compliance with Section 62–7, and to any trial judge who rendered a decision that is the subject matter of the appeal may be signed by counsel of record or the printing service, if any. All other certifications pursuant to this subsection shall be signed by counsel of record only.”
4 Practice Book § 67–2(j) provides: “A copy of the electronic confirmation receipt indicating that the brief and appendix were submitted electronically in compliance with subsection (g) of this section shall be filed with the original brief.”
5 “The [plaintiff] could have challenged the merits of the judgment of dismissal by taking a timely appeal therefrom. On an appeal from a judgment following a denial of a motion to open pursuant to § 52–212(a), however, the standard of appellate review is whether the trial court's judgment was an abuse of its discretion.” Ruddock v. Burrowes, 243 Conn. 569, 571 n. 4, 706 A.2d 967 (1998).
6 General Statutes § 52–226a provides: “In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon, or in any civil action tried to the court, not more than fourteen days after judgment has been rendered, the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. Any such finding by the court shall be admissible in any subsequent action brought pursuant to section 52–568.”
7 The defendant's motion for attorney's fees in Coble was denied without prejudice to the defendant's right to seek such fees in the trial court.
8 Rule 8.4 of the Rules of Professional Conduct, which sets forth specific behavior that constitutes attorney misconduct, provides: “It is professional misconduct for a lawyer to:
“(1) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
“(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
“(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
“(4) Engage in conduct that is prejudicial to the administration of justice;
“(5) State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
“(6) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”
9 It is well established that, in order to avail herself of the accidental failure of suit statute, Miller was required “to make a factual showing that the prior dismissal was a matter of form in the sense that the ... noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect ... [and], even in the disciplinary context, only egregious conduct will bar recourse to [the statute].” (Emphasis omitted; internal quotation marks omitted.) Worth v. Commissioner of Transportation, 135 Conn.App. 506, 518–19, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012).
STATE OF CONNECTICUT
STATEWIDE GRIEVANCE COMMITTEE
DANBURY J.D. GRIEVANCE CASE No. 15-0688
MILLER, JOSEPHINE FEBRUARY 27, 2017
RESPONDENT’S POST-HEARING BRIEF
I. INTRODUCTION AND STATEMENT OF FACTS
This grievance hearing was held on December 1, 2016 as a result of a referral from the Connecticut Appellate Court regarding four cases consolidated at a show cause hearing on December 4, 2014, an investigation by the Office of Chief Disciplinary Counsel, and a referral by a superior court judge regarding three trial level cases handled by Respondent. Respondent was not notified [FN1] of the referral from the superior court judge until after a reply brief was filed in the Writ of Error before the Supreme Court pointing out disparate treatment of Respondent and a Caucasian attorney in two cases before that same judge.
The hearing focused on alleged violation of various rules under the Connecticut Code of Professional Responsibility, namely 1.1, 1.3, 3.1, 3.2, 3.4 (3) and 8.4 (4) regarding competence, diligence, fairness to opposing party and counsel, misconduct and conduct detrimental to the administration of justice.
FN1 While correspondence from the Disciplinary Counsel claims that the referral date preceded the filing of the reply brief, the refusal of the reviewing panel to permit questioning of the disciplinary counsel, means that there has been no opportunity to search out the truth of this. Reasonable minds could question whether the referral was made in retaliation for Respondent having presented evidence of racially disparate treatment.
At the hearing on December 1 Respondent was denied the right to present witnesses in support of her defense and was denied the right to question two members of the Office of Chief Disciplinary Counsel. The reviewing committee vacated the subpoenas that had been served on Suzanne Sutton (who had investigated the claims against Respondent) and Beth Baldwin (who had handled the attempted disciplinary action against a comparator Caucasian attorney).
The scope of Respondent’s defense to the claims was limited by the reviewing panel when it determined that the four cases that had been heard by the Appellate Court could not be reviewed due to res judicata and collateral estoppel. The panel further heard argument [FN2] regarding whether the Supreme Court decision in Miller v. Connecticut Appellate Court, 320 Conn 759 (2016) regarding the scope of the Appellate Court referral should govern the hearing. That is, whether the Supreme Court allegation that the order of referral was to determine if Respondent’s conduct was “part of a larger pattern of irresponsibility” justifying investigation of conduct in state and [federal] court.
FN2 Respondent also submitted a written brief regarding the legal determination of the Supreme Court in response to the Writ of Error filed in the Appellate Court’s six month suspension of Respondent from practice before the Appellate Court.
III. LEGAL ARGUMENTS
A. Pursuit of the Grievance Against Respondent is Tainted
By Unlawful Discriminatory and Retaliatory Motivation
In a sweepingly broad and unwarranted “interpretation” of the Appellate Court Order referring Respondent for investigation by the Office of Chief Disciplinary Counsel, the Supreme Court set the tone for a pre-ordained decision to discipline Respondent regardless of the facts. Violating the statutory rules of construction, the Supreme Court utilized the fiction that the order of referral by the Appellate Court “could have been clearer”. This fiction was then used to broaden the referral from “a request for an investigation into the specific conduct giving rise to this writ of error….to a request for a determination of whether Miller’s conduct before the Appellate Court was part of a larger pattern of irresponsibility in Miller’s handling of her professional obligations.” Again ignoring the principle of strict construction, the court then stated “we do not know whether the Chief Disciplinary Counsel will find instances of neglectful or otherwise unacceptable conduct by Miller in the Superior Court…” Miller v. Appellate Court, 320 Conn. 759 (2016). This reviewing committee then broadened the referral even further by adding Respondent’s federal court cases to those be included among those examined.
As Justice Espinosa opined in LaPointe v. Commissioner of Correction, (Conn 2015) “[i]t is not necessary to engage in any ‘‘divination’’ to discern the impetus driving the majority’s decision. My conclusion is that the majority begins with the conviction that the petitioner is innocent, and only constructs its analysis after it has arrived at that conclusion,…” LaPointe dissent. In the instant case Respondent has been hailed before this reviewing panel with the foregone conclusion that she is guilty of misconduct even when the specific facts establish otherwise.
As noted in the brief submitted with regard to the issue of the scope of this hearing, Respondent has been hawkish in protesting the discriminatory and retaliatory manner that the judicial branch and its agents (disciplinary and grievance authorities) have treated her. This has included (a) a complaint of discrimination filed with the Commission on Human Rights & Opportunities against the Office of Chief Disciplinary Counsel [CHRO Case No. 1610026] alleging a violation of C.G.S. § 46a-71; (b) a complaint with CHRO against the Statewide Grievance Committee [CHRO Case No. 1610342] also alleging a violation of C.G.S. § 46a-71; (c) a federal civil action in alleging discriminatory and retaliatory investigation by disciplinary authorities in Miller v. Carrasquilla, et al. Civil Action No. 3:15CV01111 (MPS). [FN3] This reviewing panel may also take judicial notice of the complaint of Respondent in Miller v. City of Bridgeport Police Department, et al.,[16-4102cv] presently on appeal to the Second Circuit Court of Appeals that alleges, inter alia, racial discrimination in the refusal to pay her as Caucasian lawyers, placement of her on a “no pay” list, attempted bribery, and tortious interference with her contracts with clients (e.g. Bridgeport Assistant City Attorney who encouraged Respondent’s client not to use her but recommended a Caucasian lawyer).
In a well-researched law review article, [Moliterno, James E. "Politically Motivated Bar Discipline"(2005) Faculty Publications, Paper 928 http://scholarship.law.wm.edu/facpubs/928] it has been documented that lawyers who represent unpopular causes or unpopular persons, who are not politically connected, or those who bore ethnic identities that the organized bar found threatening to its “homogeneity of thought" have been subjected to unwarranted discipline processes. Moliterno, Id.
This fierce criticism of certain lawyers has in the past come from the highest levels of judicial, government, and bar leadership. Ronald Reagan was openly hostile to legal services lawyers. Chief Justice Warren Burger gave substantial blame for the impending downfall of the profession to lawyers in political trials and encouraged the legal profession to apply "rigorous powers of discipline" to the misbehaving lawyers by using either the judicial or bar enforcement systems". To fail to use such discipline he warned, would allow "the jungle [to] clos[e] in on us.". Fred P. Graham, "Burger Assails Unruly Lawyers", N.Y. TIMES, May 19, 1971, (quoting and excerpting from speech).
In the case of noted attorney William Kunstler, the Association of the Bar of the City of New York so eagerly awaited the opportunity to discipline him that it began proceedings before the Chicago Seven trial had ended, violating its own rules of procedure. Tom Goldstein, Bar Group Withdraws Charges Against Kunstler, N.Y. Times, Feb. 21, 1974, at 34.
In dissenting from a Supreme Court's affirmance of a contempt conviction of a lawyer whose otherwise unblemished 24 year record resulted in disbarment because he deigned to represent an alleged Communist Party member, Justice Black wrote, "[T]his summary blasting of legal careers ... constitutes an overhanging menace to the security of every courtroom advocate in America. The menace is most ominous for lawyers who are obscure, unpopular, or defenders of unpopular persons or unorthodox causes." Sacher v. United States, 343 U. S. 1, 18 (1952 Black, J, dissenting).
The manner in which the disciplinary authorities in the instant case have chosen to go after and investigate Respondent for matters that hardly raise an eyebrow for others is explainable by the political and racial motivation because Respondent is a civil rights lawyer who litigates unpopular causes and is unapologetically black in her worldview. In a prior grievance hearing, the Chief Disciplinary Counsel has recommended a presentment against Respondent for the stated reason that she did not like Respondent’s “attitude” and in written communication in the same grievance that attorneys usually panic when confronted with a grievance. The attitude of the lawyer and their lack of fear should not be any factor in whether discipline is imposed or even recommended.
It is with these factors in mind, and discussion infra, that this reviewing panel
should examine the evidence and reach their determination.
B. There is No Clear and Convincing Evidence of a Lack of
Knowledge and Skills by Respondent to Competently
As a practitioner in the area of civil rights litigation for thirty-six years, the paper trail that is sought to be created, is recognized by Respondent as a tried and true technique. That is, if it is claimed that there is incompetence regarding an African-American lawyer and few will question it. The disciplinary authorities, and this reviewing panel, must first ignore Respondent’s thirty-six years of spotless practice covering public and private sector, corporate in-house, defense and plaintiff representation. [R EX A] This panel need not accept Respondent’s own assessment of her competence but may look to the opinion of the same federal court judge who sanctioned her and thus set off multiple rounds of disciplinary actions. [R EX B] “It was evident …at trial that plaintiff’s counsel is a highly capable and skilled trial attorney, and that those skills were indispensable to the success of her client in this case, in which his testimony alone stood against the contrary testimony of numerous police officers. His counsel was thoroughly prepared, organized, and adept at all stages of argument and examination of witnesses.” [R EX B, page 3].
Moreover, attorney John Williams, one of Connecticut’s premier civil rights attorneys, considered Respondent to be “a highly skilled civil rights attorney and would recommend her without hesitation to persons seeking representation in civil rights litigation.” [R EX C, ¶4]
The obvious attempt to create a paper trail may be demonstrated by the referral made in the matter of Mazzo v. Town of Fairfield, CV12-6031781. In this matter it is claimed that Respondent failed to produce her client for a deposition and filed inappropriate caseflow requests. It is stunning that the judge making the referral and the reviewing panel failed to recognize that the very documents presented to prove the alleged incompetence themselves establish that the attorney who failed to produce his client was not Respondent, but another attorney in the case. [R EX D; R EX E; TR. 104, LL 26-27; TR. 105, LL 1-27; TR. 106, LL 1-12; TR. 107, LL 15-27; T. 108, LL 1-3] The claim is absolutely false that Respondent refused or failed to produce her client for deposition. The client’s deposition took place on two separate occasions. [TR. 63, LL 2-14] Rather than this matter demonstrating any incompetence or lack of diligence or any other rule violation by Respondent, it clearly demonstrates the willingness of the judicial branch and the disciplinary authorities to fail or refuse to even read the documentary evidence before them and to recommend discipline “just because they can”. If anyone should have been hailed before this reviewing panel, it should have been the Caucasian attorney who actually engaged in the alleged misconduct in refusing to present his client for deposition. To fail to discipline him demonstrates that there is a double standard, prima facie evidence of racial and political motivation in this probable cause finding against Respondent.
Moreover, even the claim of improper use of caseflow request forms is refuted by the evidence of all such forms filed in the case. What the documents establish is that, once again, it was not Respondent, but another attorney in the case who filed caseflow requests that were arguably inappropriate. [R EX F] The obvious question is why then wasn’t attorney Formica referred to the disciplinary authorities for improper use of the caseflow forms? Indeed, any Connecticut attorney who engages in civil practice should readily admit that caseflow request forms are utilized when there is insufficient time for a motion to be placed on the calendar for oral argument and/or consideration. The acceptance of such use by attorney Formica, with impunity, establishes that point. The referral of Respondent to disciplinary authorities for such a matter should give some cause for concern for any lawyer. [TR. 65, LL 20-27; TR. 108, LL 11-27; TR. 109, LL 1-14; TR. 110, LL 23-27; TR. 111, LL 1-27; TR. 112, LL 1-12’ TR. 113, LL 6-16]
The disciplinary authorities and the referring court have made a mountain out of a molehill. When the Caucasian attorney in the Mazzo case failed to file even a caseflow request, failed to file any motion for continuance, and did not appear for jury selection, ABSOLUTELY NOTHING, was done to sanction him for his conduct. [TR. 113, LL 17-27; TR. 114, LL 1-6; R EX G] By contrast, one of Respondent’s cases was dismissed by the same court, when she did not appear for jury selection due to illness. Mezsaros v. Banks, CV12-6027816; [TR. 113, LL 21-26].
C. There is No Clear and Convincing Evidence of a Lack of
Reasonable Diligence by Respondent in Handling Her Cases
With regard to each case cited by Disciplinary authorities, it is contended that
Respondent failed to show reasonable diligence in violation of Rule 1.1. Two examples will be used to demonstrate that the judicial branch has strained in its efforts to create a paper trail for sanctioning Respondent. In Willis v. Community Health Services, AC 36955, [FN4] the Appellate Court dismissed an appeal [FN5] for the purported reason that a certificate of transcript was not timely filed. At the time of the show cause hearing [FN6] in this matter Respondent explained that she was out of the country when a rule nisi order was issued requesting the filing of a transcript. Although the date for complying with the rule nisi had passed by the time Respondent returned to the country, in a motion to open the dismissal it was explained that the transcript in question had actually been filed with the court some five months earlier in the same case but only under a different docket number. This was apparently deemed to be such egregious misconduct that the Appellate Court nevertheless dismissed the appeal.
In another example of the lengths to which the disciplinary authorities have gone to find a basis to discipline Respondent, in Mezzaros v. Banks, CV12-6027816, the claimed misconduct was that Respondent waited until 119 days before moving to open the judgment of dismissal. Since parties are permitted 120 days within which to move to open a judgment, there can be no quarrel with Respondent's action. She met the 120 day statute of limitations when filing toi open the dismissal. When questioned at the time of their grievance hearing as to why Respondent waited 119 days, the answer was:
FN4 Although the reviewing panel has apparently concluded that res judicata applies so that no new evidence was received regarding this matter. However, the undisputed facts may be taken judicial notice of for examination of the point being made by Respondent.
FN5 Although the reviewing panel apparently deems this matter to be governed by principles of res judicata or collateral estoppel, it may nevertheless take judicial notice of the underlying facts of the case.
FN6 Even the show cause hearing was unprecedented in that no prior case could be found where the Appellate Court ordered an en banc
hearing before all nine judges in order to hear claims regarding essentially claims of procedural “violations”. While the Appellate Court has authority to discipline attorneys, their sua sponte
decision to utilize the en banc procedure, normally reserved for matters of utmost importance to the administration of justice in Connecticut practice was unique. Even an article in the
Connecticut Bar Journal found the Appellate Court’s action in ordering the show cause hearing to be “an unusual twist.” Professional Responsibility Review 2015 page 63, fn 22. [Emphasis
A. ….when the reference is made to me taking 119 days that was because I was seeking to get other counsel for Mr. Banks. I was well aware that Judge Bellis was not going to open the motion to open the judgment. And so I tried to get someone else for him thinking that if he were represented by someone other than me, maybe he might have a chance of her opening it, but was unsuccessful in finding anyone else to take the case on.
Q. Okay. Why do you saw that you were well aware that Judge Bellis wasn’t going to grant the motion to open?
A. That would take a bit of telling, but if you listen to it, there had been a number of instances where it has been made clear to me that Judge Bellis would side with whoever was opposing counsel whatever case I was on. Even the referrals that she’s made to the Disciplinary Counsel I think when we go through some of the other cases are going to establish that. In one specific instance, I had a conversation with Judge Bellis at my request in her office because of something that I had heard from opposing counsel in the Cimmino case.
Q. Okay. But that has nothing to do with this case, right?
A. No, you’re asking me why I felt Judge Bellis would not open the motion and I’m telling you why. There’s a long history between Judge Bellis and I. So that’s why I’m answering that question if you want me to continue.
Q. I think you’ve given me an idea that you indicate that you felt that Judge Bellis wouldn’t.
A. Not just that I felt, in the Cimmino case, there was an instance when opposing counsel filed a motion to dismiss
after a year and a half into the case. She had filed a motion to strike. I distinctly remember that when we went to argue the motion to dismiss, opposing counsel was asked by the Judge,
not Judge Bellis, was asked by the Judge why she waited for a year and a half to file a motion to dismiss. I don’t think she intended to say this, but opposing counsel said that she had gotten
advice from Judge Bellis that she should file a motion to dismiss. Later on, when I attempted to get the transcript of that, that particular information was deleted, it was not in the
transcript. So because of that, I asked for a meeting with Judge Bellis in her office because I wanted to find out why it was that she would be given evident, excuse me, advice to opposing
counsel in a case. She was not the Judge of record on that case, but she was Presiding Judge. And I believe that that was discriminatory for her to give advice to the other side. And so that is
to say that there was this history between Judge Bellis and I. So I felt like there wasn’t going to be any movement on her part with anything that has to do with me. That’s why I sought
to try to get other counsel for Mr. -– Mr. Banks. [TR. 58-60] [Emphasis added]
Further, in the Banks case, it is claimed that Respondent failed to appear for jury selection. However, Respondent filed a case flow request asking a rescheduling of the jury trial due to illness. Two matters are noteworthy regarding the Banks case. Firstly, multiple opposing counsel were permitted by the trial judge to continue the jury selection in order that they might attend the funeral of a colleague’s wife. However, when Respondent sought a continuance it was denied and the matter dismissed. Apparently, a dead Caucasian is more important than a live Negro lawyer. [TR. 44, LL 6-13; TR 52, LL 2-7] Secondly, the same trial judge who dismissed Respondent’s case for not appearing for jury selection, failed to take any action when the Caucasian attorney in the Mazzo case, failed to file a motion for continuance, failed to file a caseflow request, and failed to appear for jury selection. Instead, the court simply sua sponte continued the jury selection to a future date. [TR. 113, LL 17-27; TR. 114, LL 1-6; R EX G]
Notably, three of the four trial level cases referred to this reviewing panel were cited by Judge Bellis as examples of alleged incompetence, lack of diligence, etc. by Respondent (i.e. Stone, Mezzaros, and Mazzo). If advice has been given to attorneys who are opposite Respondent on one case, it is a fair question whether these referrals were motivated by something other than the claimed lack of competence, skill, or diligence. Respectfully, it is submitted that there is an insufficient showing of clear and convincing evidence to support these claims.
D. There is No Clear and Convincing Evidence that Respondent
Acted with Unfairness to Opposing Counsel
The claim that Respondent has acted in a manner that violates Rule 3.4 regarding fairness to opposing party and counsel is so far-fetched as to be unbelievable. Rather than unfairness to opposing party and counsel, a disturbing pattern of conduct has been demonstrated that, with assistance from the judicial branch, an unfair advantage has been given to opponents of Respondent. See transcript regarding the advice and counsel to opposing counsel to file a motion to dismiss, dismissal of a case under circumstances when there was no plausible reason to differentiate Respondent from Caucasian attorney. [TR. 58-60; TR. 113, LL 17-27; TR. 114, LL 1-6; R EX G]
The comparator evidence regarding attorney Peters-Hamlin demonstrates how little regard the Disciplinary Counsel has for instances when attorneys engage in misconduct and conduct detrimental to the administration of justice. This attorney was suspended for seven years by the New York State and Federal Court, disbarred in Maryland state court but has never been reprimanded by Connecticut State or Federal courts except for a retroactive suspension. The state judicial website does not list any reprimand of her and she has not lost a single day of legal practice. Her misconduct is amply demonstrated that “while serving as lead counsel for a plaintiff in a trade secrets infringement suit in New York, instructed a first-year associate to “mark-up” deposition transcripts and claim them as attorney work product; knowingly made false statements to mislead the court as to these events; and made copies and ordered additional copies of deposition transcripts for use in another matter, in contravention of court confidentiality orders. Respondent engaged in conduct involving repeated intentional dishonesty, misrepresentations, and deceit.” Judicial notice may be taken by this reviewing panel of the matter of Attorney Grievance Commission of Maryland v. Kristan Peters-Hamlin, Misc. Docket AG No. 30, September Term, 2015. Opinion by Hotten, M. Peters-Hamlin pursued her appeal of a seven year suspension for seven years, during which time all consideration of reciprocal discipline was held in abeyance by Connecticut State and Federal courts. At the end of this extended period of appeals, a Connecticut superior court judge found that Peters-Hamlin had “suffered enough” and that no discipline was warranted. If Connecticut disciplinary authorities could overlook this history of misconduct by this Caucasian female attorney, then it has no genuine cause to discipline Respondent.
E. There is No Clear and Convincing Evidence that Respondent
Engaged in Conduct Prejudicial to the Administration of Justice
The catchall topic of “conduct prejudicial to the administration of justice” is obviously an important one. However, the laudable and lofty purpose of ensuring proper administration of justice has little meaning when there are clear examples when the administration of justice is ignored as regards some members of the bar. See for example the seven year inaction by the Disciplinary Counsel before it sought any action to discipline Attorney Kristen Peters-Hamlin. [FST-CV15-6024364; In Re Peters-Hamlin 3:08gp00018 (JCH)] See also the refusal of Disciplinary Counsel to seek any meaningful discipline of Attorneys Michael Koskoff and Kathleen Nastri in the matter of D’Attillo v. Koskoff, Koskoff & Bieder; NNH-CV14-6051836] See also Christian B. Shelton of Branford the lawyer who drafted a "fictitious" consulting contract that became evidence in former Governor Rowland's 2014 trial received an official reprimand but was permitted to keep his license to practice law. If the disciplinary authorities were truly concerned about the administration of justice, they would not ignore such obvious instances of misconduct by other attorneys who are well-connected and Caucasian.
As the U. S. Supreme Court has said "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." N.A.A.C.P. v. Button, 371 U. S. 415 (1963). Cf. In Re Primus, 435 U. S. 412 (1978). There is more than ample evidence that Respondent has been subjected to a double standard imposing discipline and the threat of discipline in order to chill her civil rights litigation on her own behalf and that of her clients.
More than fifty years ago the United States Supreme Court said that a “State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights”. [Emphasis added] See Schware v. Board of Bar Examiners, 353 U. S. 232 (1957); Konigsberg v. State Bar, 353 U. S. 252 (1957). Cf. In re Sawyer, 360 U. S. 622 (1959). NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 461 (1958). When lawyers are disciplined for the purpose of silencing their "non-homogenous voices" the public at large is harmed.
"Some politically motivated bar complaints or bar actions may have technical merit, at least at the time of their initiation. But even the meritorious ones would not be filed in the usual course of things without the impetus of some political or other untoward motivation. In the absence of merit, if a bar complaint bears other marks of political action (other interests of the complaining party, context of the complaint), a political motive for the action is highly likely. When the bar complaint is demonstrably meritless, it fits a historical pattern of politically motivated discipline." Moliterno, Id.
This reviewing panel has been convened for the purpose of carrying out the politically motivated complaints from the Connecticut Judicial Branch and disciplinary authorities to silence Respondent for her refusal to think and speak homogeneously, in lock step with the majority Caucasian bar. It is respectfully submitted that this reviewing panel should have the courage to reject the politically motivated efforts of the disciplinary authorities and the judicial branch to create a paper trail for continued discipline of Respondent.
By: __/s/Josephine S. Miller____________
Josephine S. Miller, JURIS #422896
152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
Tel: (203) 512-2795
Fax: (203) 702-5188
In the Supreme Court of the State of Connecticut
Brief amicus curiae
of JOSEPHINE SMALLS MILLER
in support of APPELLANT JOSEPH ELDER
JOSEPHINE S MILLER
152 Deer Hill Avenue
Danbury, CT 06810
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………….2
Interest of Amicus Curiae……………………………... 3
Summary of Argument……………………………………3
I. The Historical Pattern of Bar Discipline Has
Been Singularly Unkind to Lawyers Who are
not Politically Connected or Who Represent
Unpopular Causes or Individuals………………4
II. Although Bar Discipline Matters are Sui
Generis, such Uniqueness Should Not Be a
Means for Silencing Lawyers for Political Reasons……………………………………........ 6
III. Precision in the Regulation of Attorney Conduct
Must be the Touchstone…….………................8
Chicago Bar Ass'n v. McCallum, 173 N.E. 827 (Ill. 1930)……………………….…6
In Re Griffiths, 413 U. S. 717 (1973) …………………………………………………9
In Re Primus, 435 U. S. 412 (1978)…………………………………………………..8
In Re Sawyer, 360 U. S. 622 (1959)....................................................................6
Konisberg v. State Bar, 353 U. S. 252 (1957)......................................................6
Miller V. Connecticut Appellate Court, SC19346 .............................................8, 9
NAACP v. Alabama ex rel. Pattersp, 357 U. S. 449 (1958)..................................6
NAACP v. Button, 371 U.S. 415 (1963)……………………………………………8, 9
Sacher v. United States, 343 U. S. 1 (1952)…………………………………………5
Schware v. Board of Bar Examiners, 353 U. S. 232............................................6
Truax v. Raich, 239 U. S. 33 (1915)…………………………………………………,,9
Advisory Committee on Cultural Competency, Annual Report to Chief Justice
Chase T. Rogers, July 2013……………………………………………………………6
Michelman, Frank, Brennan and Democracy (2005)……………………..…………8
Douglas, William O.,"The Black Silence of Fear" N.Y.Times January 13, 1952….7
Goldstein, Tom, Bar Group Withdraws Charges Against Kunstler, N.Y. TIMES,
Feb. 21, 1974, at 34……………………………………………………………………..5
Graham, Fred P. "Burger Assails Unruly Lawyers", N.Y. TIMES, May 19, 1971…5
Levinson, Sandford, National Loyalty, Communalism, and the Professional Identity
of Lawyers, 7 Yale J.L. & Human. 49 (1995) ………………………………………5, 6
Moliterno, James E. "Politically Motivated Bar Discipline"(2005) Faculty Publications, Paper 928 http://scholarship.law.wm.edu/facpubs/928.....................................4, 7, 8
Josephine Smalls Miller, has been a practicing attorney for thirty-six years; a member of the Connecticut Bar since 2004, a past member of the Michigan Bar, the Georgia Bar, the U. S. District Court for the Northern District of Georgia, the District of Connecticut, the Second Circuit Court of Appeals, the Fourth Circuit Court of Appeals and the United States Supreme Court.
Amici has been dedicated to identifying and rectifying civil rights abuses and other serious miscarriages of justice. Most recently, she has sought to bring attention to the politically motivated discipline of African-American attorneys like herself. Given the paucity of attorneys who have the inclination or political will to speak truth to power in this important area of attorney discipline, any opportunity to draw the attention of the Connecticut courts to its obligation to ensure a just and fair civil and criminal justice system is of interest to Amici.
Summary of Argument
In cases like this one, where the judicial and bar enforcement authorities reach deep back into the past in order to find a basis for attorney discipline, and to apply the extraordinary sanction of a year long suspension under circumstances where lawyers with far more egregious allegations go unscathed, the court must at least examine the possibility that the discipline has been imposed for a political reason that is not tethered to any issue of attorney ethics.
The historical pattern of attorney discipline establishes that lawyers who are ethnically alien, who represent unpopular causes or unpopular persons or who merely fail the test of "homogeneous thought" are often disciplined for meritless reasons. Here, the trial court’s suspension of Attorney Elder for alleged misconduct occurring more than ten years prior to the grievance complaint more likely than not has been affected by the inevitable push of the Connecticut courts and bar enforcement officials to maintain the status quo and cleanse itself of lawyers thought to be "impure" .
I. The Historical Pattern of Bar Discipline Has Been Singularly Unkind to Lawyers Who are Not Politically Connected, Who Represent Unpopular Causes or Individuals, or Who are Ethnically Distinct
In a well-researched law review article, [Moliterno, James E. "Politically Motivated Bar Discipline"(2005) Faculty Publications, Paper 928 http://scholarship.law.wm.edu/facpubs/928] it has been documented that lawyers who represent unpopular causes or unpopular persons, who are not politically connected, or those who bore ethnic identities that the organized bar found threatening to its "homogeneity of thought" have been subjected to unwarranted discipline processes. Moliterno, Id.
In a wide variety of contexts, such lawyers were disciplined or threatened with discipline because “their collective fault in the eyes of the organized, traditional strength-center of the bar was the disruption to the legal, social, and cultural status quo that their work promised." Moliterno, Id.
This fierce criticism of certain lawyers has in the past come from the highest levels of judicial, government, and bar leadership. Ronald Reagan was openly hostile to legal services lawyers. Chief Justice Warren Burger gave substantial blame for the impending downfall of the profession to lawyers in political trials and encouraged the legal profession to apply "rigorous powers of discipline" to the misbehaving lawyers by using either the judicial or bar enforcement systems". To fail to use such discipline he warned, would allow "the jungle [to] clos[e] in on us.". Fred P. Graham, "Burger Assails Unruly Lawyers", N.Y. TIMES, May 19, 1971, (quoting and excerpting from speech).
In the case of noted attorney William Kunstler, the Association of the Bar of the City of New York so eagerly awaited the opportunity to discipline him that it began proceedings before the Chicago Seven trial had ended, violating its own rules of procedure. Tom Goldstein, Bar Group Withdraws Charges Against Kunstler, N.Y. Times, Feb. 21, 1974, at 34. In the instant case, disciplinary authorities have violated the plain meaning of its own rule regarding the statute of limitations for attorney grievances in its eagerness to discipline Attorney Elder.
In dissenting from a Supreme Court's affirmance of a contempt conviction of a lawyer whose otherwise unblemished 24 year record resulted in disbarment because he deigned to represent an alleged Communist Party member, Justice Black wrote, "[T]his summary blasting of legal careers ... constitutes an overhanging menace to the security of every courtroom advocate in America. The menace is most ominous for lawyers who are obscure, unpopular, or defenders of unpopular persons or unorthodox causes." Sacher v. United States, 343 U. S. 1, 18 (1952 Black, J, dissenting). Likewise, Attorney Elder has had an unblemished thirty year record as a lawyer, and he sat as a member of the Connecticut Board of Pardons for twenty years.
History shows that in 1879 shortly after the Supreme Court had upheld a prohibition on women's membership in the state bar, Connecticut began a trend toward adoption of restrictions such as nationality based restrictions designed to impair the ability of certain groups to earn a livelihood in their chosen profession. Sanford Levinson, National Loyalty, Communalism, and the Professional Identity of Lawyers, 7 Yale J.L. & Human 49, 64 (1995). The singular efforts to cleanse the bar of certain undesirable attorneys has even resulted in collusion by members of the state bar. See for example Chicago Bar Ass'n v. McCallum, 173 N.E. 827 (Ill. 1930) (railroad lawyers hired agent to pose as worker, fake an accident and serious injuries, retain target personal injury lawyers, and defraud court in effort to entrap target personal injury lawyers into engaging in financial assistance violations)
This court must not revert to the atavistic requirement of "homogeneous thinking" among members of the legal profession. To do so will undermine the purported goal of diversity. As part of its strategic plan, the Judicial Branch has stated that it "… will provide a diverse and culturally competent environment that is sensitive to the values and responsive to the needs of all who interact with it." Advisory Committee on Cultural Competency, Annual Report to Chief Justice Chase T. Rogers, July 2013. If the Judicial Branch is to do more than give lip service to the matter of diversity, it cannot treat its African-American attorneys differently than others.
II. Although Bar Discipline Matters are Sui Generis, such Uniqueness Should Not Be a Means for Silencing Lawyers for Political Reasons
More than fifty years ago the United Stats Supreme Court said that a "State may not,
under the guise of prohibiting professional misconduct, ignore constitutional rights".
[Emphasis added] See Schware v. Board of Bar Examiners, 353 U. S. 232 (1957);
Konigsberg v. State Bar, 353 U. S. 252 (1957). Cf. In re Sawyer. 360 U. S. 622 (1959).
NAACP v. Alabama ex rel. Patteron, 357 U. S. 449, 461 (1958).
While we can determine the number of reported cases of professional discipline, we can never determine the number of lawyers silenced and the number of clients who went unrepresented. Justice Douglas described the professional phenomenon as a "black silence of fear." William O. Douglas, "The Black Silence of Fear" N.Y.Times January 13, 1952 (magazine) at 7, 37-38. When lawyers are disciplined for the purpose of silencing their "non-homogenous voices" the public at large is harmed.
"Some politically motivated bar complaints or bar actions may have technical merit,
at least at the time of their initiation. But even the meritorious ones would not be
filed in the usual course of things without the impetus of some political or other
untoward motivation. In the absence of merit, if a bar complaint bears other
marks of political action (other interests of the complaining party, context
of the complaint), a political motive for the action is highly likely. When the bar
complaint is demonstrably meritless, it fits a historical pattern of politically
motivated discipline." Moliterno, Id.
In the case at bar Disciplinary Counsel has established no reason why the ten year old grievance was not dismissed as untimely. There was nothing extraordinary about the allegations that warranted a tolling of the statute, the alleged victim was an attorney who surely knew not to sit on his rights, and indeed the alleged victim's grievance complaint was not even the matter upon which probable cause was found. Moreover, the context of the suspension where the trial court refused to stay the one year period pending appeal was uncharacteristically harsh when compared with other attorney conduct that was far more egregious.  "Bar discipline machinery has moved slowly, if not at all against the politically well-connected." Moliterno, Id. There is no known case, other than the instant one where the rule of §2-32 (a)(2)(E) has been applied to a lawyer so far past the six year statute of limitations and in the absence of some clear and continuing violation. See also Miller v. Connecticut Appellate Court, (SC19346) where no other reported case could be found where a Connecticut attorney was summoned before an en banc session of the Appellate Court for disciplinary purposes (i.e. alleged procedural rules violations). The inherent power of the court to act sui generis is not as completely unfettered as found by the trial court and Disciplinary Counsel. Such unfettered discretion will result in an unjust and unworkable standard that is no standard.
III. Precision in the Regulation of Attorney Conduct Must be the Touchstone
By its application of Practice Book section §2-32 (a)(2)(E) to attorney conduct that occurred more than ten years before the grievance complaint and ignoring the long-held rule of a six year statute of limitations, the trial court has introduced an objectionable quality of vagueness and overbreadth into the area of attorney discipline.
As the U. S. Supreme Court has said "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." N.A.A.C.P. v. Button, 371 U. S. 415 (1963). Cf. In Re Primus, 435 U. S. 412 (1978). A lawyer's property interest in his or her legal profession, still for some a noble profession, must be accorded great protection. In his book Brennan and Democracy (2005), Frank Michelman suggested that the reasoning in Button had “remarkable implications” directly attacking the idea that " law stands neutrally and impartially above and apart from politics,". Further, when Connecticut courts sought to uphold a prohibition on admission to the bar of resident aliens, the U. S. Supreme Court said "[i]t requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity it was the purpose of the [Fourteenth}Amendment to secure. In Re Griffiths, 413 U. S. 717 (1973) citing Truax v. Raich, 239 U. S. 33, 35 (1915).
While the NAACP v. Button case relied upon the First Amendment for its majority holding, there is no question that the action of Virginia's legislative and judicial branches was to attack African-American lawyers or those who espoused racial equality through litigation. Attorney Elder has raised the issue of racial disparity in treatment. Notably Disciplinary Counsel has chosen not to address this issue. This court must have a resolute determination to acknowledge and correct the injustice of racial disparity in treatment of African-American lawyers because as stated by the Reverend Dr. Martin Luther King, Jr., " injustice anywhere is a threat to justice everywhere."
One commentator has said that "politically motivated bar complaints"… those that would not be lodged but for a political motivation … are not pursued to vindicate the lawyer ethics issues raised by the complaints, but rather to achieve some political goal or effect. Such complaints often play a part in a larger drama. … and usually such bar actions lack [genuine] merit." Moliterno, Id. When genuine merit is lacking, such as in the case at bar, the regulation of attorney conduct becomes tainted, precision of regulation is discarded, and the public confidence in the system of justice is undermined. How many more careers, indeed how many more lives, must be destroyed before the courts finally open the door to diversity?
For the foregoing reasons, it is urged that this Court grant the appeal of Attorney Elder and reverse the decision of the trial court to suspend his license to practice law. Furthermore, the court in its supervisory role should initiate an investigatory commission to determine the extent to which African-American lawyers in Connecticut are treated with disparity in their appearances before the courts and/or the handling of their cases.
Josephine S. Miller
152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
July 4, 2016
 See for example the seven year inaction by the Disciplinary Counsel before it sought any action to discipline Attorney Kristen Peters-Hamlin after she was suspended for seven years by the New York State Bar, the U.S. District Court for the Southern District of New York, and the District of Connecticut. [FST-CV15-6024364; In Re Peters-Hamlin 3:08gp00018(JCH)] See also the refusal of Disciplinary Counsel to seek any meaningful discipline of Attorneys Michael Koskoff and Kathleen Nastri in the matter of D’Attillo v. Koskoff, Koskoff & Bieder; NNH-CV14-6051836] See also Christian B. Shelton of Branford the lawyer who drafted a "fictitious" consulting contract that became evidence in former Governor Rowland's 2014 trial received an official reprimand but was permitted to keep his license to practice law.
 Similarly in Miller v. Connecticut Appellate Court, AC19436, the issue of racial disparity raised by Plaintiff in error was acknowledged by the Court but then ignored.
|JOSEPHINE S MILLER
152 Deer Hill Avenue
Danbury, CT 06810
|Josephine S. Miller|
152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
|July 4, 2016|