Opinion
HHDCV186088744S
06-04-2018
CHIEF DISCIPLINARY COUNSEL v. Harold H. BURBANK, III
UNPUBLISHED OPINION
OPINION
Sheridan, J.
This is a reciprocal disciplinary proceeding brought pursuant to Practice Book § 2-39. It is undisputed that on January 24, 2018, the Respondent Harold H. Burbank, III was suspended from the practice of law for a period of twelve months with reinstatement in accordance with M.Bar.R. 29 by the State of Maine, Supreme Judicial Court, Active Retired Justice Robert W. Clifford.
Pursuant to Practice Book § 2-39(c), presentment to the court of an order of disbarment or discipline from another jurisdiction requires commensurate reciprocal action in this state "unless it is found that any defense set forth in the answer has been established by clear and convincing evidence."
Practice Book § 2-39 is part of "a comprehensive disciplinary scheme ... established to safeguard the administration of justice, and designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners ... the object of which is not the punishment of the offender but the protection of the court." Burton v. Mottolese, 267 Conn. 1, 25-26, 835 A.2d 898 (2003).
"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).
The court acknowledges that commensurate discipline does not necessarily require identical discipline. In re Weissman, 203 Conn. 380, 384, 524 A.2d 1141 (1987). However, "[m]ost 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 Comm. v. Tartaglia, No. CV 030828136S, 2003 WL 22904558, at *2 (Conn.Super.Ct. Nov. 24, 2003), quoting 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.).
In the present case, the Disciplinary Counsel requests commensurate discipline of twelve months suspension. The Respondent argues that the defenses set forth in his answer have been established by clear and convincing evidence and therefore, pursuant to Practice Book § 2-39(c), commensurate discipline is precluded.
The Respondent disputes the accuracy of the findings of fact made in the Maine disciplinary proceedings, claiming that they were "contrived and pretextual." He offers a substantial quantity of documentary evidence in support of those allegations. "[A] certified copy of the official disciplinary order of another jurisdiction establishes, prima facie, the validity of the order and the accuracy of its underlying findings ... a lawyer who offers a defense to the disciplinary order of the other jurisdiction is obligated to prove such a defense ‘by clear and convincing evidence.’ In the absence of such a rebuttal of the disciplinary order of the other jurisdiction, the trial court in this state must, after a hearing, ‘impose commensurate action.’ " In re Weissman, 203 Conn. 380, 383-84, 524 A.2d 1141 (1987).
The court has closely scrutinized all of the information supplied by the Respondent and his arguments challenging the findings of the Maine courts and finds them to be largely without merit, or inconsequential. They fall well short of the "clear and convincing" evidence necessary to overcome the presumption that the findings of fact underlying the disciplinary action are accurate. This court will not revisit the factual findings made by the various courts in Maine that have fully reviewed, analyzed and vetted the evidence.
The Respondent also advances the novel argument that the Maine disciplinary process is unconstitutional, because when he appeared in the Maine courts, he did so "as a pro se Connecticut citizen and Maine land owner; not as a Maine or Connecticut attorney." As such, any attempt to discipline him, by this court or by the courts in Maine, infringes upon his "fundamental First and Fourteenth Amendment rights to petition government without fear of punishment, reprisal or prior restraint." He argues, in effect, that when a lawyer appears in court on his own behalf as a plaintiff or defendant, he should not be held to the ethical standards of a practicing attorney. The Respondent offers no case law authority- from this state or any other state- that would support this bold proposition. The court has independently researched the question and finds the argument to be without merit.
To the contrary, the Preamble to the Rules of Professional Conduct make it clear that a lawyer has "responsibilities as a representative of clients, an officer of the legal system and a public citizen " (emphasis added). The American Bar Association has clearly expressed its strong position that a lawyer’s conduct, even when in a non-professional capacity, is subject to sanction by the Bar. See Formal Opinion 336 (1974), ABA Comm. on Ethics and Prof’l Responsibility ("[a] lawyer, whether acting in his professional capacity or otherwise, is bound by applicable disciplinary rules of the Code of Professional Responsibility"). The Supreme Court of Kansas agreed, noting that "[i]t is recognized generally that lawyers are subject to discipline for improper conduct in connection with business activities, individual or personal activities, and activities as a judicial, governmental or public official." State v. Russell, 610 P.2d 1122, 1127 (Kan. 1980) (citing In re Kirtz, 494 S.W.2d 324 (Mo. 1973) (fact that attorney is not acting in his capacity as attorney in engaging in certain conduct while campaigning for public office and that a person could hold such office without having license to practice law does not render Code of Professional Responsibility inapplicable to such conduct).
This court has considered the Respondent’s circumstances as well as the goals inherent in the imposition of reciprocal attorney discipline. Commensurate discipline is appropriate here.
Accordingly, the Respondent Harold S. Burbank is ordered suspended from the practice of law for a period of 12 months, retroactive to January 24, 2018.
The Respondent shall comply with all the terms and conditions of Practice Book Section 2-53 in the event that he applies for reinstatement to the Connecticut Bar following his period of suspension.