Opinion
No. CV-03-0828136 S
November 24, 2003
MEMORANDUM OF DECISION
This matter is before the court on the Statewide Grievance Committee's (Committee) application for reciprocal discipline, pursuant to Rule of Practice § 2-39, against the respondent, John Tartaglia, an attorney admitted to practice in this state. For the reasons stated below, the court grants the application.
While the Judges of the Superior Court recently have amended this section of the Practice Book, the amendment is not effective until January 1, 2004. Accordingly, the previous version of the rule is applicable to this proceeding.
I. Background
The Committee's application, dated August 26, 2003, alleges that Tartaglia was admitted to practice law in the State of New York in 1977 and in Connecticut in 1991. According to a certified copy of an opinion and order by the Supreme Court of the State of New York, Appellate Division for the Second Department (Appellate Division), dated April 14, 2003 (Opinion and Order), that court suspended Tartaglia from the practice of law for one year, commencing May 14, 2003, and continuing until its further order, with leave to apply for reinstatement no sooner than six months prior to the expiration of the one-year period. The Committee seeks commensurate discipline in Connecticut.
In response to the application, Tartaglia filed his answer, dated September 25, 2003, in which he seeks dismissal of the application, or, in the alternative, a reprimand The Committee filed a reply to Tartaglia's answer, dated October 14, 2003. The court held hearings in connection with the application on October 23, 2003 and November 6, 2003, at which evidence was presented and during which the court heard oral argument.
The Opinion and Order reflects that, in the New York disciplinary proceedings against Tartaglia, hearings were held in August and October 2001 in connection with eight charges of professional misconduct. See Opinion and Order, pp. 1-2. The Appellate Division sustained six of the eight charges. See Opinion and Order, p. 3. These six charges resulted in findings that Tartaglia had engaged in conduct which adversely reflected upon his fitness to practice law, in violation of New York's Code of Professional Responsibility DR 1-102(a)(7), 22 NYCRR 12003.3[a][7]. In two of these charges (Charges One and Two), the Appellate Division sustained the findings of a Special Referee that, at different periods of time during 1993 and 1994, Tartaglia had failed to maintain a sufficient balance in the master account of his attorney trust account. See Opinion and Order, p. 2.
Three of these charges involved individual client matters, and also related to Tartaglia's use of his attorney trust account. As to Charge Three, involving a client named Brown, the Appellate Division sustained the finding that, during April-May 1994, "[o]n more than one occasion . . ., checks were cleared and/or debits were made from the master account on behalf of the Brown matter in amounts that exceeded the amount of funds on deposit therein for that mater." See Opinion and Order, p. 2. Charge Four, as to a client named Simone, concerning the period between December 1992 and May 1994, involved a similar allegation and was likewise sustained. See Opinion and Order, pp. 2-3.
Charge Eight alleged that Tartaglia had released "a negotiable escrow check in breach of his fiduciary responsibilities at a time when the funds it represented were not yet on deposit in his escrow account." See Opinion and Order, p. 3. The Appellate Division sustained the finding that the respondent had forwarded a check for $220,000.00, drawn on his attorney trust account, to an attorney representing an entity named First Asian Nominees Ltd., and subsequently directed his bank to stop payment on it. It noted also that no deposit of the funds represented by the check had been made into the trust account before the date of the stop payment order. See Opinion and Order, p. 3.
As to the last charge, Charge Five, the Appellate Division sustained findings of violations of New York's Code of Professional Responsibility DR 1-102(a)(7), 22 NYCRR 12003.3[a][7], and DR 9-102(e), 22 NYCRR 1200.46[e], in that, between June 1993 and April 1994, three checks payable to cash, each bearing Tartaglia's signature, cleared his trust account. See Opinion and Order, p. 3.
II. Discussion
Practice Book § 2-39(a) requires the statewide bar counsel, upon being informed that a lawyer admitted to the Connecticut bar has been suspended from practicing law in another jurisdiction, and that such discipline has not been stayed, to obtain a certified copy of the suspension order and file it with the Superior Court. After being served with a copy of the order, the lawyer is directed to file "an answer, admitting or denying the action in the other jurisdiction and setting forth, if any, reasons why commensurate action in this state would be unwarranted. Such certified copy will constitute prima facie evidence that the order of the other jurisdiction entered and that the findings contained therein are true." See Practice Book § 2-39(b).
According to Practice Book § 2-39(c), "[a]fter hearing, the court shall take commensurate action unless it is found that any defense set forth in the answer has been established by clear and convincing evidence." "The [clear and convincing] standard is a degree of belief that is between the belief required in the average civil case and the belief of guilt beyond a reasonable doubt required in a criminal action." State v. Wegman, 70 Conn. App. 171, 180-81, 798 A.2d 454 (2002), cert. denied, 261 Conn. 918, 806 A.2d 1058 (2003).
"The provisions of [§ 2-39] were intended to create a basis for the reciprocal discipline of Connecticut lawyers who have been held to have engaged in misconduct in other jurisdictions." In re Weissman, 203 Conn. 380, 383, 524 A.2d 1141 (1987). "`A century ago it was apparently not uncommon for a lawyer disbarred by one court to travel to another community, become admitted to the local bar, and continue to practice law.' C.W. Wolfram, Modern Legal Ethics, (1986) § 3.4.6, p. 115. It was to avoid this type of result that the rules of practice in Connecticut and other jurisdictions enacted rules of reciprocal discipline, so that a state did not become dumping grounds for the renewed practices of professional miscreants who had been disciplined elsewhere . . . After discipline has been imposed in one jurisdiction typically the second jurisdiction `will adopt the findings of the first court under a modified rule of res judicata.' Id., 116 . . . Under the typical rule of modified res judicata, the second reviewing court normally will not reject the first state's findings unless it is demonstrated that the first state's findings were seriously defective. See id. . . . Most courts extend the reciprocity doctrine to include a practice of imposing a disciplinary sanction that normally will be the same in operative length and severity as that imposed in the first jurisdiction. An inappropriately lenient or severe sanction, however, will not be copied. Connecticut follows that majority view." Statewide Grievance Committee v. Dey, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV98 0063144S, 22 Conn. L. Rptr. 612 (September 30, 1998, Flynn, J.).
There is no claim made here that the New York disciplinary proceeding was defective in some way.
"[T]o be `commensurate,' the discipline imposed by this court need not be identical . . ." to that imposed by the other jurisdiction. Statewide Grievance Committee v. Palmieri, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02 0472045 (February 25, 2003, Silbert, J.); see also In re Weissman, supra, 203 Conn. 384.
"A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession . . . Inherent in this process is a large degree of judicial discretion . . . 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 that sanction should be . . . Accordingly, a court may accomplish the goal of protecting the public and the courts by imposing a sanction that deters other attorneys from engaging in similar misconduct." (Citations omitted.) Statewide Grievance Committee v. Fountain, 56 Conn. App. 375, 378, 743 A.2d 647 (2000).
"An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited." (Internal quotation marks omitted; italics in original) Doe v. Statewide Grievance Committee, 240 Conn. 671, 684, 694 A.2d 1218 (1997).
In his answer, Tartaglia argues that reciprocal discipline is not appropriate because "no Disciplinary Rule in Connecticut precisely corresponds to the Disciplinary Rules that Respondent was found to have violated in New York." See Answer, p. 2, p. 3. In addition, he asserts that his New York violations "are technical, involving unintentional bookkeeping errors, with no dishonesty, venal intent, conversion or endangerment of clients' funds, because no similar discipline has been imposed in Connecticut on similar charges, and because there are substantial mitigating factors, commensurate punishment is not appropriate." See Answer, p. 2.
In support of his contention that no disciplinary rule in Connecticut "precisely corresponds" to those which he violated in New York, the respondent does not cite to Connecticut's Rules of Professional Conduct, which were adopted in 1986, and which govern the obligations of attorneys practicing within Connecticut. See Somers v. Statewide Grievance Committee, 245 Conn. 277, 278 n. 1, 715 A.2d 712 (1998). Instead, he cites the former Code of Professional Responsibility, which has not been in effect in Connecticut for over sixteen years. For example, he refers to Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 595 A.2d 819 (1991) ( Rozbicki), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992), and Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 559 A.2d 220 (1989), both of which applied the former Code of Professional Responsibility, which the Rules of Professional Conduct replaced in 1986. Under these circumstances, the respondent's vagueness challenges to the language of the former Code are immaterial.
As our Appellate Court observed in Statewide Grievance Committee v. Presnick, supra, 18 Conn. App. 322, a finding of a professional misconduct violation does not necessarily depend on a finding of corrupt motive or bad faith. "[I]t is not a defense to an ethical violation that the attorney did not act in bad faith or intend to violate the code." (Internal quotation marks omitted.) Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 211, 804 A.2d 1027 (2002). See Rozbicki, 219 Conn. 488 (lawyers are chargeable for deviations from the codes governing their conduct).
In Connecticut, the obligations of an attorney with respect to management of trust accounts and clients' funds are clear and unambiguous. Practice Book § 2-27(a), provides, "[c]onsistent with the requirement of Rule 1.15 of the Rules of Professional Conduct each lawyer or law firm shall maintain, separate from the lawyer's or the firm's personal funds, one or more accounts accurately reflecting the status of funds handled by the lawyer or firm as fiduciary or attorney, and shall not use such funds for any unauthorized purpose." Violation of Practice Book § 2-27 constitutes professional misconduct. See Practice Book § 2-27(e).
Rule of Professional Conduct 1.15(a), concerning the safekeeping of property, which is referenced in Practice Book § 2-27, states, "[a] lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for such period of time as may be required under applicable law after termination of the representation."
The commentary to Rule 1.15 also provides guidance to Connecticut attorneys about their roles as fiduciaries in this context: "A lawyer should hold property of others with the care required of a professional fiduciary." As the Connecticut Bar Association's Ethics Committee stated in Informal Opinion 91-2 (Revised), "[t]hat implies some special skill or more facilities greater than the prudent person, which must be employed in managing the clients' funds. C.F. Scott on Trusts (1987 edition) Sec. 174.1." As stated in Scott on Trusts, "[i]f the trustee has greater skill or more facilities than others he is under a duty to employ such skill and facilities." Scott on Trusts (1987 edition) Sec. 174.1. See Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983) (citing Scott on Trusts); Cadle Co. v. Gabel, 69 Conn. App. 279, 289, 794 A.2d 1029 (2002) (citing Scott on Trusts). That principle surely applies to an attorney in relation to his management of his trust account.
Thus, contrary to his effort to characterize his actions as "unintentional bookkeeping errors," the evidence is clear and convincing that Tartaglia's misconduct in New York would violate Connecticut's rules as well. The violations found demonstrate that Tartaglia's conduct did not meet the standard of that of a professional fiduciary. Charge Eight in the New York disciplinary proceedings resulted in a finding that he had breached his fiduciary responsibilities by releasing from escrow a $220,000.00 check when there were no such flunds in his trust account. Such conduct, as well as his failures to maintain sufficient balances in trust accounts and his allowing other checks to clear or making debits in amounts that exceeded the sums on deposit amount to inaccurately "reflecting the status of funds handled by the lawyer." See Practice Book § 2-27(a) and (e) and Rule of Professional Conduct 1.15. The facts here thus contrast with those in Statewide Grievance Committee v. Anderson, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV01-0182502S (July 6, 2001, Karazin, J.), cited by the respondent, where the court found that the conduct which prompted discipline in Vermont would not violate Connecticut's Rules of Professional Conduct and that the charges were pending against the respondent at the time he applied for admission in Connecticut.
The court has reviewed the answer which Tartaglia submitted in the New York proceedings, see Respondent's Exhibit B, as well as his explanation of his actions as set forth in his answer here. See Answer, pp. 5-7. It is apparent that the Appellate Division was not persuaded by the respondent's defenses as to the charges which were sustained. This court similarly declines to view the misconduct here as being of minimal significance.
In addition, the respondent refers to court to paragraphs 1, 3, and 4 of the recently promulgated commentary to amended Practice Book § 2-39, which, as noted above, has not yet gone into effect. These paragraphs state, "A judge hearing the matter may want to consider the following criteria: (1) The procedure was lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or . . . (3) The imposition of the same discipline by the court would result in grave injustice; or (4) The misconduct established warrants substantially different discipline in this state . . ." As discussed above, Tartaglia does not contend that he was deprived of notice or an opportunity to be heard in the New York disciplinary proceedings.
Instead, he asserts that due process would be violated since "no attorney has been suspended in Connecticut for conduct similar to that present in this case." See Answer, p. 4. The court is unpersuaded. The contention flies in the face of Connecticut decisional law, referenced above, which requires the court to exercise its discretion, on a case by case basis, when presented with a request for reciprocal discipline.
In addition, attorneys have been suspended for conduct involving misuse of trust accounts. See Statewide Grievance Committee v. McGee, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV00-0091634S (September 20, 2000, Gordon, J.) (rejecting defense of a "technical violation"); Statewide Grievance Committee v. Wechsler, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV96-0566673S (May 30, 1997, Berger, J.) (conduct in violation of Rule 1.15).
The respondent refers to McGovern v. Statewide Grievance Committee, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV96-0562137 (June 10, 1997, McWeeny, J.), which the court finds to be inapposite. There, the misconduct alleged involved a charge of unreasonable billing, in violation of Rule of Professional Conduct 1.5. The court concluded that an interim bill, which had been prepared but never mailed, and a fee which was resolved by discussion, did not warrant a finding of misconduct. Different circumstances were also involved in Statewide Grievance Committee v. Cozzolino, Superior Court, judicial district of Hartford, Docket No. CV01-0807173S (May 2, 2002, Peck, J.), also cited by Tartaglia, where the court ordered that the respondent practice under supervision instead of a suspension, as had been imposed in Rhode Island While the court there noted that the discipline imposed "arises not from defects in the character or integrity of the respondent but from poor time management and practice skills and a failure to respond promptly and appropriately to disciplinary proceedings," it also noted that it "recognizes the dire consequences to the respondent's personal and professional life should he be suspended in Connecticut as well as Rhode Island and is moved by his stated willingness to address his deficiencies as a professional under court supervision." Id. No such consequences have been brought to the court's attention here.
As our Supreme Court has noted, the American Bar Association has adopted Standards for Imposing Lawyer Sanctions ("ABA Standards"), which utilize a system for comparing aggravating and mitigating factors. See Briggs v. McWeeny, 260 Conn. 296, 333-34, 796 A.2d 516 (2002). "The Standards provide that, after a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorneys mental state; (3) the potential or actual injury stemming from the attorneys misconduct; and (4) the existence of aggravating or mitigating factors. A.B.A., Standards for Imposing Lawyer Sanctions (1986) standard 3.0, p. 25." Id. "The Standards list the following as aggravating factors: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; and (j) indifference to making restitution. A.B.A., Standards for Imposing Lawyer Sanctions, supra, standard 9.22, p. 49. The Standards list the following as mitigating factors: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses. Id., standard 9.32, p. 50." (Internal quotation marks omitted.) Briggs v. McWeeny, supra, 260 Conn. 334.
This court has considered these factors in determining an appropriate sanction in this matter. In his answer, at page 9, the respondent has listed what he considers to be mitigating factors, including the remoteness in time of his conduct in New York, the fact that no conversion or loss of clients' funds was involved, and his engaging in religious and civic pro bono activity.
The court notes the presence of the following aggravating factors, as defined in the ABA Standards. According to the Decision and Order, page 4, the respondent's disciplinary history, between 1994 and November 2000, includes three letters of caution and two letters of admonition. Five disciplinary letters within a six-year period is a considerable number, especially for an attorney first admitted to practice in 1977, 17 years before the year of the first letter. Additional aggravating factors relate to the fact that six charges concerning the management of trust accounts were sustained by the Appellate Division, representing a pattern of misconduct and multiple offenses.
Mitigating factors include the absence of a dishonest or selfish motive, the respondent's pro bono work, and the remoteness of the offenses. Also, in Connecticut, the respondent was late in notifying Connecticut's statewide bar counsel of his suspension, since he belatedly (on May 27, 2003) and mistakenly sent a letter instead to the clerk of the Superior Court in the judicial district of Fairfield. See Practice Book § 2-25 and Exhibit A to Respondent's Answer. However, since then he has been cooperative and has appeared in court promptly when required to do so. In imposing a suspension of only one year, with the opportunity to apply for reinstatement after six months, the Appellate Division specifically noted the remoteness in time of the underlying allegations and that none involved conversion. See Decision and Order, p. 4. There is no issue here as to the attorneys mental state.
In addition, with further regard to the nature of duty violated, the court notes the following. Two mitigating factors listed in the ABA Standards which are clearly absent here are inexperience in the practice of law and remorse. As noted, the respondent was admitted to practice about 16 years before the initial conduct in 1993 which was the subject of the New York proceedings. The respondent's lack of remorse is evidenced by his continued reference to his misconduct as consisting of "bookkeeping errors," rather than recognizing them as a pattern of conduct which was below that of a professional fiduciary of long experience.
The respondent has not established any defense by clear and convincing evidence. See Practice Book § 2-39(c). The court has considered the circumstances here as well as the goals inherent in the imposition of attorney discipline. Commensurate discipline is appropriate here. Accordingly, the respondent is suspended from the practice of law in Connecticut for one year.
CONCLUSION
The respondent is suspended from the practice of law in Connecticut for one year. As a prerequisite of his reinstatement in Connecticut, the respondent shall have been reinstated in New York. He may apply for reinstatement after six months have elapsed, subject to Practice Book § 2-53. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT