Opinion
FSTCV084014896S
08-05-2016
Disciplinary Counsel v. Thomas Hickey
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTIONS TO DISMISS (#109.00 and #118.00)
Kenneth B. Povodator, J.
Presently before the court is a motion to dismiss filed by the named petitioner in 2012--as supplemented by a motion filed in 2016 by the Statewide Grievance Committee--addressed to an application for reinstatement filed by the respondent in 2012. A moderately detailed history--factual and procedural--is required in order to put the current dispute in a comprehensible context.
At times, the Disciplinary Counsel (Office of the Chief Disciplinary Counsel) will be referred to as " Counsel" and at times, the Statewide Grievance Committee will be referred to as " Committee."
Facts/Procedural History
In May 2008, the Statewide Grievance Committee, after receiving a notice of overdraft relating to the respondent's IOLTA account from the bank in which such account was maintained, initiated an investigation, ultimately leading to an attempt to audit the account. On September 12, 2008, the respondent executed a proposed resignation as an attorney, containing the following statement: " I hereby submit my resignation from the bar of the State of Connecticut and waive the privilege of applying for readmission to the bar at any time in the future." The document was signed by the respondent, and an acknowledgment was taken indicating that the respondent " swore that signing this document was his free act and deed."
Pursuant to Practice Book § 2-52, such a " resignation shall not become effective until accepted by the court after hearing, at which the court has accepted a report by the statewide grievance committee, made a finding of misconduct based upon the respondent's affidavit, and made a finding that the resignation is knowingly and voluntarily made." In connection with scheduling of such a hearing, an application dated October 3, 2008 was filed, seeking an interim suspension (#103.00, which, upon consent, was granted on October 22, 2008 (#102.10). A hearing was (tentatively) scheduled for November 13, 2008.
During the period of time set forth in the preceding paragraph, the respondent filed a memorandum of law relating to his right to resist the compelled production of evidence (#104.00), as had been requested as part of the investigation. The focus of the filed memorandum was the right of the respondent to resist production of materials as a condition of the acceptance of his resignation--the concluding language of that memorandum stated that " it would be patently unconstitutional to refuse to permit the resignation merely because the Respondent has asserted his constitutional rights under well settled state and federal law." Subsequently, a letter from counsel for the respondent was filed with the court, indicating that some additional documentation had been provided to the Statewide Grievance Committee as well as the Chief Disciplinary Counsel's office, on which basis the then-pending objections to the resignation of respondent were withdrawn.
On November 12, 2008, the court, Adams, J, executed and filed an acceptance of resignation and waiver, stating that " the Respondent, Thomas J Hickey, juris number 308735, has knowingly and voluntarily resigned from the Bar of the State of Connecticut and has knowingly and voluntarily waived the privilege of applying for readmission to the Bar at any time in the future."
By pleading dated April 16, 2012 (executed on April 17, 2012) the respondent filed an application for reinstatement to the bar, invoking Practice Book § 2-53. (#107.00.) By pleading dated April 30, 2012, the Office of the Disciplinary Counsel filed a motion to dismiss (#109.00) stating that the respondent had been canvassed and the court had found that he had made " a knowing and intelligent decision in asking the court to accept his resignation and waiver of his right to reapply, " which resignation and waiver " was a judgment on the merits and was not appealed." As a result, the claim was that the respondent lacks standing and the application should be dismissed.
On May 30, 2012, the respondent--now sometimes characterized as the applicant--filed an objection to the motion to dismiss with a memorandum of law in support of his position. (#111.00.) Other than some motions relating to the representation of the respondent and an unsuccessful effort to have the matter transferred to another venue, nothing further transpired until 2016.
In the 2012 application and objection to motion to dismiss, the arguments were primarily legal in nature. The application noted that the resignation had been tendered in response to efforts to obtain information from the respondent, but that an audit had found the IOLTA account reconciled, which appears to be perceived to be a vindication of the respondent. The objection to the motion to dismiss relies on the claimed constitutional due process right to a hearing on his application, arguing that the authorities relied upon in the motion to dismiss were distinguishable and that the respondent had not waived his right to an appeal. The objection contended that he was entitled to notice of an appellate right and that the failure to give him such notice was " in violation and deprivation of his constitutional right to due process." (#111.00 at page 3.) He also argued that it was irrational to allow someone who has been disbarred to apply for readmission (even if the disbarment was related to commission of a felony) while depriving someone not so tainted--someone who had resigned with waiver of right to reapply without a felony conviction or similar stigma--of the right to apply for readmission.
The court has reviewed the contents of the 2012 filings in order to allow a fair comparison with the 2016 filing. On January 20, 2016, the respondent/applicant filed a supplemental memorandum of law in opposition to the motion to dismiss. (#116.00.) In distinction to the generally legal/technical focus of the 2012 filings, in 2016, the focus was more factual in nature. Attached to the 2016 supplemental objection were affidavits from the respondent and his wife, articulating a new and seemingly-very-different rationale for the resignation and waiver that had been filed in 2008. According to this more recent filing, the motivation had been highly personal if indirect. In 2006, the respondent's wife's father had been accused of emotionally-charged and reprehensible/embarrassing criminal conduct that had divided the family. According to page 2 of #116.00, respondent's wife
suffered embarrassment, humiliation and depression for which she sought psychiatric help. The grievance counsel's investigation into her husband's high-profile firm " overwhelmed [her] with fear that . . . [her] family's personal and ugly secret, " of which only a select few relatives then knew, would be exposed publicly.
. . . To prevent disclosure of his wife's family secret, and out of concern for his wife, [respondent] made the ill-considered decision to resign rather than defend the grievance. Faced with these extraordinary circumstances and pressures in his personal life [respondent] regretfully made this decision against his best interests. (References to affidavit submissions, omitted.)
The personal pressure, coupled with the claim that there had been multiple instances of vindication of his handling of his IOLTA account, were claimed to warrant his ability to be considered for readmission--or at least a hearing on his application.
In 2012, there had been references to one or two audits; in this submission, there is a claim of " four independent audits" that had been conducted and that his " client trustee accounts were completely in compliance with the law and balanced out."
On February 1, 2016, the Statewide Grievance Committee filed a motion to dismiss dated January 28, 2016 (#118.00), arguing that the waiver constituted a binding agreement " in exchange for the Disciplinary Counsel and the Statewide Grievance Committee closing their investigations into the Respondent's misuse of his trust account." The claim is that he is estopped from pursuing his application for reinstatement, and a memorandum of law in support of that renewed motion was also submitted.
On February 17, 2016, the respondent filed a memorandum in opposition to the supplemental motion to dismiss (#119.00, dated February 16, 2016) (and an amended memorandum of law was filed a few days later, #120.00). The Statewide Grievance Committee submitted a brief reply to the amended memorandum. (#121.00.) The court heard argument on the motions to dismiss on April 25, 2016.
Current Procedural Posture
Both Disciplinary Counsel and the Statewide Grievance Committee have characterized their motions as motions to dismiss, implicating jurisdiction of the court. The respondent, in his most recent objection, questions whether the motions filed and under consideration actually implicate subject matter jurisdiction as has been claimed by the petitioners.
[T]he issue of subject matter jurisdiction is distinct from the authority to act under a particular statute. Subject matter jurisdiction involves the authority of a court . . . to adjudicate the type of controversy presented by the action before it . . . A court . . . does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Although related, the court's . . . authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court . . . to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. Citibank, N.A. v. Lindland, 310 Conn. 147, 171, n.14, 75 A.3d 651 (2013) (internal quotation marks, omitted).
Generally speaking, the issues for the court include: are the issues raised by the Committee and Counsel properly raised by motion to dismiss; is the respondent, in his role as applicant, entitled to an evidentiary hearing; and what is the proper disposition, to the extent that there are issues ripe for adjudication?
Discussion
The issues before the court fall into a number of categories, and although the categories are not always sharply defined, the court will attempt to address them in a manner that it is hoped facilitates clarity of understanding. The court will start with an issue that is relatively well defined and seemingly is entitled to consideration early in the process.
I. Due Process
In the respondent's initial objection to the motion to dismiss (#111.00 at page 3), he asserts a claim of denial of due process predicated on the failure to give him notice of his right to appeal and/or the failure to canvass him on the waiver of his right to appeal. The respondent's analysis is not extensive or detailed, but sufficient to require the court to address it on its merits.
The respondent correctly states that " notice and an opportunity to be heard are the essence of due process." The respondent then states that
one cannot knowingly, intelligently and voluntarily waive an appellate right if they didn't know such a right to appeal exists. There was never any indication that an appeal was permissible and there was no canvass on that fundamental right. Hickey never waived his right and he could not do what the Disciplinary Counsel intimates he should have done [appeal] because he never had any notice of that right in violation of his constitutional due process rights under State action.
To extrapolate from Disciplinary Counsel's argument[:] if applicant had a right to appeal then he was entitled to notice of that right; notice which was never given and which is now part of this claim for reapplying. Just because the Motion says that it was knowingly, intelligently and voluntarily done does not make it so. The set of rights that Hickey had did not at that time include notice of an appellate right in violation and deprivation of his constitutional right to due process.
In the objection, the respondent " refers" to a case, Doe v. Pitacco, but there is no citation to the case and the court has been unable to locate any Second Circuit decision so captioned (and the court experimented with possible alternate spelling of " Pitacco" in an effort to find the case). This difficulty appears to be of limited significance, however, because the case was referenced as authority for an unremarkable general proposition--due process requires notice and an opportunity to be heard. The proposition generally arises in scenarios where there is a question as to whether a party had notice that he/she was in danger of losing an essential right, typically focusing on whether there is a right to pre-deprivation notice and a hearing, or whether a post-deprivation opportunity to be heard is sufficient.
Here, the situation is more particularized. There is no question relating to whether respondent had notice and an opportunity to be heard relating to his resignation--the respondent was on notice and had an opportunity to be heard relating to his own resignation (and the record reflects his impatience with the proceeding not occurring sooner). The claim is that the respondent had a right to notice of his right to appeal and that any implied waiver of his right to appeal (also) would/should have been knowing and voluntary, with a canvass by the court to ensure that status.
Starting with a common-sense approach: Is the respondent seriously contending that when he agreed to resign with a waiver of the right to apply for readmission--and as noted, expressing impatience along the way at the insistence that certain aspects of the investigation into his IOLTA account be concluded before he would be allowed to resign--there was any then-present contemplation of an appeal from the acceptance of that resignation? Is the respondent seriously contending that he, an attorney admitted to the bar for approximately 20 years and the experienced attorneys representing him, did not know that there was at least a theoretical right of appeal from any final judgment of the court; see, e.g., Practice Book § 61-1 et seq.? Is the respondent seriously contending that this theoretical right of appeal was unknown and not reasonably discoverable/discovered until some 3+ years after his resignation had been accepted? " It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 778, 607 A.2d 418 (1992); see, also, State v. Siering, 35 Conn.App. 173, 184, 644 A.2d 958 (1994) and cases cited therein. The court notes that the respondent filed affidavits in connection with later submissions (discussed in some detail, below); there is no affidavit or even a non-sworn assertion that the respondent and his counsel actually were unaware of the right to appeal.
On a more technical level, the respondent has not cited any authority for the claimed obligation of the court to inform the respondent, in connection with a resignation from the bar, that there was a right to file an appeal, or that more generally there is an obligation to inform civil litigants of the right to file an appeal. By contrast, the Practice Book does require notice be given of the right to appeal after conviction of a criminal offense, Practice Book § 43-30.
With respect to the claimed obligation to canvass the respondent with respect to waiver of the right to appeal, that contention has something of a strawman quality to it. The court is unaware of any contention that the respondent prospectively waived his right to appeal at the hearing concerning acceptance of his resignation, such that there was nothing to canvass. While such a waiver might be an inference from the submission of a resignation coupled with a waiver of the right to apply for readmission, the expiration of the 20-day period in which to file an appeal (Practice Book § 63-1) made any inquiry concerning a possible inferred waiver academic at most; whether characterized as a waiver or a bar, the expiration of that time limit foreclosed any right of appeal (subject to any (unknown) exception that might be invoked). In other words, while it may have been " assumed" by all concerned that the respondent would not appeal, the record does not reflect an express waiver of that right, and absent a waiver, there was no reason for the court to canvass respondent.
In connection with an analogous claimed due-process right to notice of the right to appeal, at least one U.S. District Court (in the Second Circuit) has rejected a similar contention: " Research reveals that, faced with the question, courts have uniformly found a plaintiff claiming a due process entitlement to specific notice of the right to appeal unable to demonstrate a legally sound argument." Vialez v. New York City Housing Authority, 783 F.Supp. 109, 117 (S.D.N.Y. 1991). The decision then went on to discuss Circuit Court authority reaching that same conclusion, and indeed, quoted a passage indicating that the official publication of duly promulgated rules and regulations, relating to a right of appeal, satisfied due process. Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167, 1169 (7th Cir. 1983).
This court need not be concerned as to whether Bennett is universally applicable, but if the principle applies even sometimes in cases involving an unsophisticated individual trying to navigate a governmental bureaucracy, the court has little difficulty in seeing its likely applicability to an attorney, represented by counsel, navigating attorney-regulatory matters.
Accordingly, the court finds the due process argument relating to appellate rights to be without any merit.
II. Propriety of Motion to Dismiss
As discussed in some of the decisions cited by the parties (and will be discussed below), proceedings pertaining to admission/readmission of attorneys are, in many aspects, sui generis. Regulation of attorneys is largely handled through judicial rulemaking (Chapter 2 of the Practice Book) rather than legislative enactment of statutes. In determining whether a motion to dismiss properly is used in this context, then, allowances must be made for the differences between statutory provisions conferring subject matter jurisdiction or limiting subject matter jurisdiction, and the regulatory process set forth in Chapter 2, and in particular, Practice Book § 2-53.
The challenges to the use of, and timeliness of, motions to dismiss, implicate a number of sub-issues. Are the contentions advanced by the Committee and Counsel truly jurisdictional? Are they subject matter jurisdictional or waivable jurisdictional defects? Are the motions governed by the time limits and other considerations set forth in Chapter 10 of the Practice Book? Is there a need for an evidentiary hearing? The court will attempt to address the procedural issues, while recognizing that the sui generis nature of the proceeding makes the analysis necessarily imprecise.
As a threshold observation, subject matter jurisdiction can be implicated by seemingly unrelated considerations, without any clear taxonomy. Some of the variations in subject matter jurisdictional jurisprudence include mootness; standing/aggrievement; justiciability/ripeness; statutory criteria/preconditions; and immunity from suit.
Although there can be some overlap in particular situations, e.g., is a failure to satisfy a statutory condition for abrogation of sovereign immunity (e.g., lack of timely notice under General Statutes § 13a-144) an immunity issue or a failure to satisfy the statutory requirements, the concepts are sufficiently distinct in most instances that this provides a useful starting point for analysis.
Standing and/or satisfaction of preconditions seem to be the categories closest to potential application in this case. Somewhat oversimplified, the argument is that the respondent--now as an applicant--waived his right to invoke the Practice Book § 2-53 procedure that he is attempting to invoke, such that he is not within the class of persons who can invoke the reinstatement procedure. As a further overlay, the rule has undergone changes since 2008 (and 2012), now explicitly excluding from its operation any attorney who waived the right to apply for readmission, requiring a determination of whether the changes were intended to codify then-existing practices (as is generally argued by the petitioners) or reflect a change in standards which then would require determination of the proper standards to be applied in this case. That is compounded by the extended period of time that elapsed between the resignation and the initial application for reinstatement and the further extended period of time between that application and the factual rationale claimed in 2016 (discussed below).
As noted, there is a " standing" quality to the challenge to jurisdiction.
Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Citibank, supra, 310 Conn. 161 (internal quotation marks and citations, omitted).
Does the respondent, as applicant, have a colorable claim that is entitled to be heard, or did his waiver of the right to apply for reinstatement foreclose even the right to be heard on the merits of an application?
In In re Application of Eberhart, 48 Conn.Supp. 267, 841 A.2d 749 (2002), affirmed and adopted, 267 Conn. 667, 841 A.2d 217 (2004), in connection with a discussion of possible applicability of res judicata and/or collateral estoppel in the attorney-regulation context, the court noted that identification of parties and those in privity is generally part of the analysis, but matters arising in the context of attorney discipline require some increased flexibility due to the sui generis nature of the attorney-regulatory system. Certainly, the person seeking reinstatement is a party, and presumptively was a " party" to any prior disciplinary proceedings, but who/what are the adversary " parties" ?
This is related to the distinction between " other" jurisdictional challenges and a jurisdictional challenge in an attorney-regulatory proceeding. Generally, courts have no prior involvement or current stake in disputes brought to court for resolution, such that the court has no conceivable interest other than fair and impartial adjudication of a dispute between the parties. In attorney regulatory matters, however, the court is not only the forum for resolution of disputes but also is charged with the duty of supervision and regulation of the attorney or prospective attorney who appears before it. See, e.g., Chief Disciplinaty Counsel v. Zelotes, 152 Conn.App. 380, 402-03, 98 A.3d 852 (2014) (grievance committee acts as arm of the court in system designed " to preserve public confidence in the system and to protect the public and the court from unfit practitioners"); see, also, Statewide Grievance Committee v. Gifford, 76 Conn.App. 454, 459-60, 820 A.2d 309 (2003).
It is possible to identify situations where that are not rigorously true, e.g., proceedings seeking to enforce prior rulings of the court, or where the judicial branch itself is an interested party.
In Miller v. Appellate Court, 320 Conn. 759, 136 A.3d 1198 (2016), the court again identified the sui generis nature of disciplinary-type proceedings, 320 Conn. 759, 136 A.3d 1198. There, the discussion was in the context of appellate sanctions (including a suspension of the right to practice before the Appellate Court) rather than formal disciplinary proceedings. The court recognized/identified the broad authority of a court to take appropriate action, specifically stating that " [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 . . ." Id. (Internal quotation marks and citation, omitted; brackets as in cited case.)
Synthesizing these concepts, a relatively strict transposition of " ordinary" jurisdictional concerns to attorney discipline would suggest that there almost never could be a lack of subject matter jurisdiction, as the judicial branch is both the regulator and the forum in which matters relating to attorney discipline and admission (and readmission) are to be resolved. Therefore, any claim of any attorney (or would-be attorney) necessarily would come within the " jurisdiction" of the Superior Court. But that very " necessity" means that the analysis needs to be refocused.
The practical purpose of jurisdictional requirements is to provide some level of filtering of matters that reach the trial and appellate courts for adjudication, with lack of jurisdiction as something of a shorthand for matters that should not be considered ab initio. " A motion to dismiss . . . essentially assert[s] that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . ." Prenderville v. Sinclair, 164 Conn.App. 439, 451, 138 A.3d 336 (2016) (internal quotation marks and citation, omitted). Thus, although seemingly not fitting within general notions of jurisdiction, the prior pending action doctrine allows a court to dismiss a case because its duplicative nature presumptively belies any proper purpose for the proceeding; Bayer v. Showmotion, Inc., 292 Conn. 381, 395-96, 973 A.2d 1229 (2009); 710 Long Ridge Operating Co. II, LLC v. Stebbins, 153 Conn.App. 288, 293-94, 101 A.3d 292 (2014). (" This is a rule of justice and equity, " 292 Conn. 396.) See, also, Bennett v. New Milford Hosp., Inc., 300 Conn. 1, 12 A.3d 865 (2011), in which the court noted that the current version of General Statutes § 52-190a requires treatment of defects in statutorily-required opinion letters as implicating jurisdiction as a result of recently-enacted statutory mandate for dismissal, in contrast to prior judicially recognized remedy for insufficient good-faith submissions through the vehicle of granting a motion to strike, i.e. treating the defect as a matter of legal sufficiency rather than jurisdictional.
Emphasizing the use of a motion to dismiss as a filter for matters that cannot (should not) be addressed on the merits, in Ill v. Manzo-Ill, 166 Conn.App. 809, 820-21 (2016), the court approved of the use of a motion to dismiss as the vehicle for challenging a motion that, by court rule, could not be heard:
Insofar as there is no practical difference between precluding a party from obtaining a hearing on a motion and a dismissal of such motion, we are not persuaded that the rule does not permit a court to clear its docket by dismissing a motion that, by operation of the rule, it is unable to entertain.
To the extent that the respondent/applicant at least implicitly if not explicitly claims that the issue of finality of his resignation should be addressed in the course of determining the merits of the proceedings he has attempted to initiate, again, the decision in III is at least suggestive:
The defendant argues that, procedurally, [applicability of the preclusive provision] is best addressed as a part of a final hearing on the merits, as opposed to being used to dismiss or deny a motion before any such hearing commences. This position defies common sense, and would eviscerate the provisions of [the preclusive provision]. It would require the court unnecessarily to conduct a full hearing on the motion in order to determine whether to dismiss it or render a decision on its merits. 166 Conn.App. 821.
The court notes that in Eberhart, although the form of the remedy/disposition was not identified as itself an issue, the trial court had dismissed an application similar to the one before this court, and the Supreme Court affirmed the dismissal. While not compelling, it is at least suggestive that the claimed jurisdictional quality of the resolution did not appear to be so unusual or inappropriate as to require corrective action; cf. D'Eramo v. Smith, 273 Conn. 610, 612, 872 A.2d 408 (2005), correcting form of judgment when matter improperly dismissed.
" We conclude that the form of judgment is improper because the trial court had subject matter jurisdiction over the plaintiff's application and, therefore, the matter should not have been dismissed. We agree with the trial court, however, that the plaintiff is not entitled to the relief sought." The resulting order was that " [t]he form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment for the defendant on the merits of the plaintiff's application for a writ of mandamus, " 273 Conn. 625.
At this point, the court believes it appropriate to return to the issue of " parties" and how that takes on special significance in this scenario. Generally in litigation, if a defect is not properly characterized as jurisdictional, there are other filtering mechanisms that can be utilized-a motion to strike to challenge legal sufficiency and a motion for summary judgment to challenge the existence of factual issues needing resolution by a factfinder. In the context of an attorney applying for reinstatement, however, there are no such formal pleading mechanisms available-the process specified by Practice Book § 2-53 are quasi-administrative in nature, starting with a referral to a standing committee (subsection (f)). There is no procedure that is intended or designed to allow for threshold determinations of eligibility to apply for reinstatement in the first instance. Other than the court and its designees, there are no parties to the application process in the ordinary sense-other than the applicant.
Practice Book § 2-53(h) gives the Statewide Grievance Committee and the Chief Disciplinary Counsel the right to " file an appearance and participate in any investigation . . . and at any hearing . . . and at any court proceeding . . ." If there is to be recognition of parties other than the applicant, it certainly would seem that the Statewide Grievance Committee and the Chief Disciplinary Counsel are entitled to such status, and attendant to such status would seem to be the right to challenge whether there should be any proceedings in the first instance.
Section 2-53 reinstatement is not automatic, nor is every person who has been suspended or who has disbarred or who has resigned (without waiving the right to apply for reinstatement) eligible to apply-subsections (b) through (d) of the current version of the rule impose a number of conditions on eligibility to apply, and some mechanism seemingly is needed to ensure compliance before the application is submitted/accepted for review. (The version existing in 2008 and 2012 also contained conditions, if fewer in number.) It is reasonable to infer an implicit condition on application for reinstatement that the applicant be eligible to apply and not have waived that right as part of the resignation process-it is almost tautological that an applicant must have retained (not abandoned/waived) the right to reapply as a condition to reapply.
The court notes the shift in emphasis/focus in the respondent's contentions, over time. The initial claim was that notwithstanding the waiver, the respondent was entitled to a review of his fitness for readmission, coupled with a claim that he had been entitled to notice of his right to appeal. By 2016, however, the focus was on the lack of voluntariness of his waiver, claimed to have been so extreme as to potentially constitute duress, which is a challenge to the judgment that had been entered in 2008. A claim that the waiver does not necessarily preclude a future application does not necessarily attack the finality of the initial judgment but rather challenges its absoluteness; a claim of lack of voluntariness or duress, however, is an attack on the judgment itself. Motions seeking to open or modify or vacate a judgment are generally perceived as implicating subject matter jurisdiction; see, General Statutes § 52-212a; Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 85 A.3d 1 (2014); Citibank v. Lindland, 310 Conn. 147, 75 A.3d 651 (2013).
In an objection to the later motion to dismiss filed by the Statewide Grievance Committee (#119.00), respondent claims that that motion was untimely-respondent's application was filed in 2012 but the motion was not filed until 2016. Respondent invokes Practice Book § 10-30. That argument assumes that the rules applicable to civil actions are applicable to attorney discipline and especially petitions for reinstatement.
Note that it was not until 2016, when the respondent filed his supplemental memorandum (#116.00), that there was a relatively detailed articulation of the factual and legal basis for the attempt to circumvent the waiver based on lack of knowing and voluntary waiver/duress, complete with affidavits. (It also was the first formal sign, after more than three years of inactivity, that the respondent was intending to press his application.) The Committee's motion was filed a little more than one week later.
Not all matters pending on the civil docket are considered civil actions subject to the provisions of Chapter 8 et seq. of the Practice Book. For example, " [a]n appeal from a probate order or decree to the Superior Court is not a civil cause of action." In re Probate Appeal of Cadle Co., 152 Conn.App. 427, 439, 100 A.3d 30, 38 (2014). By rule (Practice Book § 14-6), administrative appeals are treated as civil actions for most purposes under the Practice Book rules, with exceptions set forth in Practice Book § 14-7. The fact that Chapter 2, the comprehensive body of regulations pertaining to attorneys, is codified prior to Chapter 8, strongly suggests that there is not even a presumption of applicability of the rules of pleading set forth in Chapter 10 to matters such as this.
Additionally, the issues raised are not analogous to waivable personal jurisdictional issues (was service proper, were the proper papers served, etc.) but rather are more akin to subject matter jurisdiction (subject to modification given the sui generis nature of proceedings under Chapter 2 of the Practice Book). Simplistically, personal jurisdiction inquires as to whether the proper procedures were followed in commencing the proceeding, including the procedures for bringing a defendant before the court, whereas subject matter jurisdiction focuses more on whether the court can hear the matter regardless of whether proper procedures were followed. In other words, even if Practice Book § 10-30 were applicable, the issues raised by the arguably-belated motion to dismiss do not appear to be waivable.
The court recognizes that in connection with some statutory causes of action, compliance with statutory procedural requirements such as notice may straddle this informal distinction, involving the process by which an action is commenced but treated as subject matter jurisdictional.
Indeed, even if the defects/claims theoretically were waivable, there is the question of whether the Chief Disciplinary Counsel or the Statewide Grievance Committee has the authority to waive defects by a failure to act in a timely manner. Acting on behalf of the judiciary, can the judicial obligation of supervision of the conduct of attorneys be compromised by inadvertence on the part of the Committee or Counsel? A governmental agent cannot bind the principal beyond the actual authority of the agent; see, e.g., Norwalk v. Board of Labor Relations, 206 Conn. 449, 538 A.2d 694 (1988).See, also, Zotta v. Burns, 8 Conn.App. 169, 175, 511 A.2d 373 (1986) (" In order to invoke a claim of estoppel against a government agent, the claimant must also show that the government agent who induced the detrimental reliance had authority to act").
Coming full circle, the inapplicability of Chapter 8 et seq. is a further reason to accept the applicability of a motion to dismiss, to test the propriety of consideration of an application for reinstatement. There are no formal rules for motion practice in matters such as this, and a motion to dismiss is a perhaps generic title for a motion seeking to test such propriety, as a threshold matter.
Considering all of the foregoing, the court concludes that it is appropriate to consider a challenge to the propriety of the proceedings at the outset, and that the Supreme Court's " acquiescence" in use of a motion to dismiss as the proper vehicle to do so suggests that the court can and should entertain the motion to dismiss on its merits. The alternative would be to exalt form over substance, and prevent what should be a threshold determination from being made until the conclusion of the process.
As will be discussed below in connection with the merits of the motion, there are issues pertaining to the merits that reinforce this threshold determination, and conversely, there are alternate procedural avenues that can or should be considered.
III. Merits
A. Applicable Standards
Before approaching the merits of issues relating to readmission, it is necessary to identify the applicable standards. The obvious starting point is a review of the text of the governing rule, as amended. Prior to 2013, Practice Book § 2-53 did not contain any language explicitly addressing a resignation accompanied by a waiver of the right to reapply for admission. In 2013, the rule was amended to include the following language: " No attorney who has resigned from the bar and waived the privilege of applying for readmission or reinstatement to the bar at any future time shall be eligible to apply for readmission or reinstatement to the bar under this rule." This was but one of a number of changes to the rules that were approved in mid-June 2013, with an effective date of January 1, 2014. The applicant unsurprisingly claims that this language or principle does not apply to him, as he resigned in 2008 and applied for reinstatement in 2012, well before this language was added. The counter-argument is that this language made explicit that which was already implicit, such that it was not really new but rather a clarification or codification of existing procedures and practices.
The commentary to the proposed changes to Practice Book § 2-53, as published in the Connecticut Law Journal, supports the argument that this language restated existing procedures and practices, rather than creating a new prohibition. In the April 30, 2013 Connecticut Law Journal at page 81PB, and again in the July 16, 2013 Connecticut Law Journal at page 96PB, there is identical language relevant to this discussion: " It also makes clear that an attorney who has resigned and waived the right to apply for reinstatement cannot use this rule to apply for reinstatement." This is in distinction to other comments relating to creation of procedures, ending certain practices, imposing new requirements, etc. The phrase " makes clear" does not suggest creation of a new requirement or prohibition, but rather indicates an attempt to make something that already existed, more apparent (" clear"). Conversely, if this were a new prohibition, stronger or more direct terminology likely would have been used.
But for matters such as this, is/was it necessary to state the obvious? Isn't it self-evident that someone who has waived the right to file an application (ever) cannot file an application (ever), because he has forfeited that right? The court is satisfied that the relevant amendment to the rule was clarifying in nature and an articulation of practice, rather than a new limitation. The application of the respondent, and the issues he has raised, must be evaluated against that backdrop.
B. The Merits of the Motions to Dismiss
Before actually discussing the merits, it is perhaps helpful to identify matters that are not presently before the court.
In connection with his application in 2012 (#107.00), the respondent acknowledged the existence of a waiver of the right to apply for readmission (¶ 3), but then went on to state that the waiver " does not preclude a present determination of his present fitness to be admitted to practice law" (¶ 6). (There also is a recitation of the absence of any prior application for reinstatement.) These also are the issues that are presented in the initial portion of his objection to the motion to dismiss (#111.00)--fitness and the lack of any prior application.
There is nothing in the application that explains why the waiver is not a functional bar to consideration of the application. In an abstract sense, the respondent may be correct that the existence of a waiver does not directly relate to the determination of present fitness to be admitted, but determination of fitness logically follows from, rather than precedes, an application for readmission. Absent a validly-pending application, there is no reason for implementing the process of evaluating fitness. The most obvious if not only explanation for claiming fitness would seem to be that in the event of a determination of fitness, the respondent would hope to be able to use such a determination to bootstrap his right to apply for readmission notwithstanding the waiver of that right.
As recognized in Eberhart, fitness is irrelevant to the issue of whether someone who resigned from the bar with a waiver of the right to reapply is bound by his waiver, 48 Conn.Supp. 272. Again, logically, only if the waiver were found not to be preclusive, would a determination of fitness be necessary or appropriate. That, however, presupposes that the motions to dismiss are denied such that the application is allowed to proceed.
The issue of fitness, therefore, is not before the court at this time. The purpose of the motion to dismiss is to end the application process, now, before any consideration or evaluation of fitness, in turn predicated on the existence of a threshold-bar to any action on the application, i.e. the waiver of the right to apply for readmission. The court, then, is left with the two conflicting positions of the parties:
The Committee and Counsel argue that the waiver precludes any consideration of the merits of the application (implicitly, absent a valid reason to disregard the waiver, and they do not recognize any being offered much less proven);
The respondent argues that the waiver does not preclude consideration of his application, partly because of the contention that the implied " never" does not mean " never, " but also (and seemingly chiefly) because the waiver was not knowing and voluntary despite the recitation of the respondent to that effect and despite the court's finding to that effect.
The initial application and initial objection to the motion to dismiss do not identify any plausible basis for a claimed lack of enforceable waiver. Suggesting that absolute finality was not intended or understood as inherent in a waiver of the right to apply for readmission is not a basis for challenging the waiver, four years after the fact, four years after a contested process in which there had been initial resistance to acceptance of the resignation with waiver, and four years after conclusion of a process in which he had been represented by counsel throughout the process. In the initial application and initial objection, he invoked due process and the lack of a waiver of the right to appeal, two contentions already rejected.
The Statewide Grievance Committee and the Chief Disciplinary Counsel rely, in part, on notions of (equitable) estoppel and res judicata/collateral estoppel. The respondent-applicant contends, at least in part, that Eberhart and In re Hurley, cases that relied upon such concepts, are distinguishable.
The respondent is correct in noting that in Eberhart, the res judicata/collateral estoppel argument was not based on the initial disciplinary proceedings but rather a subsequent attempt at reinstatement/readmission that had gone through a judicial appellate process. That is a distinction that does not require a different result in this case. Certainly, a case that has gone through a formal appellate review is entitled to be given res judicata/collateral estoppel effect, as appropriate. The timing of the waiver-bar being raised in Eberhart does not mean that the issue can only be raised after a first application--it may have been raised belatedly.
Courts often note that agreed resolutions--stipulated judgments--are partly contractual in nature rather than contested determinations of issues and claims; see, e.g., Magowan v. Magowan, 73 Conn.App. 733, 736-37, 812 A.2d 30 (2002). Nonetheless, judgments entered pursuant to agreements are entitled to conclusive effect in the same manner as the results of contested proceedings--in Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 49, 526 A.2d 1329 (1987), the court stated that " a stipulated judgment may operate as res judicata to the same extent as a judgment after a contested trial, " in turn citing a number of authorities. In other words, the fact that in Eberhart the issue of preclusion was not raised until the second attempt to apply, and was decided on that basis, does not mean that an initial consensual disposition cannot be used in the same manner.
Specifically, " Gagne v. Norton, 189 Conn. 29, 31, 453 A.2d 1162 (1983); William G. Major Construction Co. v. DeMichely, 166 Conn. 368, 375, 349 A.2d 827 (1974); Bryan v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192 (1956); Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187-88, 75 A.2d 404 (1950); annot., 91 A.L.R.3d 1170, 1173-74."
Again, the sui generis nature of these proceedings must be taken into account; although not a formal stipulated judgment, the disciplinary proceedings commenced by the Statewide Grievance Committee and the Chief Disciplinary Counsel were resolved in an agreed manner. The record reflects that an initial objection to the attempted resignation had been withdrawn based on the submission of additional materials that had been requested; see, letter in file from counsel for respondent dated November 3, 2008, representing the withdrawal of the previously-articulated objections. The court's acceptance of the resignation with waiver of right to apply for reinstatement (#105.00) was the disciplinary equivalent of a stipulated judgment.
Even without the " stipulated" quality, i.e. the agreement of the Committee and Counsel, the final order of the court constituted a final judgment--the final resolution of a proceeding by way of a conclusive court order. (#106.55.) The judgment presumptively was final for the purpose of appeal; see, Practice Book § 61-2, and also presumptively triggered the statutory limits on the ability to open or modify a judgment or decree, General Statutes § 52-212a. Whether characterized as a stipulated judgment or " merely" a judgment (on consent of the respondent), the rationale for giving conclusive and preclusive effect to a prior determination is applicable here.
That is not to say that there is no distinction whatsoever between the present situation and the situation in Eberhart (as of the time of the reported proceedings). Here, the 2008 proceedings were final only as to the disposition itself (resignation with waiver); in the second round of proceedings as set forth in the reported Eberhart decisions, there not only had been a final disposition but also a review of the finality of that initial disposition. Eberhart may have been " easier" because it was the second iteration, and there was an earlier iteration upon which reliance could be placed, but there is nothing in the decision that suggests that an earlier attempt to raise the issue of finality would have resulted in a different outcome (or that finality could only be an issue in a second iteration). There almost is a redundancy quality in Eberhart --reliance on the finality of the earlier (unreported) determination of finality.
The respondent tries to distinguish the decision in J.D. Grievance Panel v. Hurley, J.D. Middlesex at Middletown, No. MMX CV115008050S, (Holzberg, J., May 19, 2011). To be sure, Hurley involved a disbarment rather than a resignation, and therefore was subject to different rules relating to reinstatement. The persuasiveness of the decision is the insistence that an inability to reapply for admission for 12 years means that 12 years must elapse before an application can be entertained. In the decision, the court characterized the prohibition on seeking reinstatement for 12 years in absolute terms--the applicant was " categorically prohibited from seeking reinstatement" for that period. Here, of course, " not ever" is substituted for " 12 years" with respect to the terms of the resignation and the then-implicit and now-explicit relevant provision in Practice Book § 2-53. (Note that Hurley is further implicit authority for the use of a motion to dismiss to test the ability of an applicant to have his application for readmission considered; the disposition was the granting of a motion to dismiss.)
A copy of the order is attached as an appendix.
The Statewide Grievance Committee and the Chief Disciplinary Counsel also assert a reliance aspect of the resignation--by virtue of the waiver of the right to apply for reinstatement, all further investigation of the respondent, or complaints asserted against the respondent, would not have been pursued. This is in distinction to disciplinary action taken where reinstatement or readmission to the bar remains a possibility.
In Statewide Grievance Committee v. Burton, 282 Conn. 1, 14-15, 917 A.2d 966 (2007), the court approved of continued pursuit of investigation into complaints against a disbarred attorney, because the individual retained the right to apply for readmission to the bar.
We also agree with other jurisdictions that have concluded that, if the court is required to suspend consideration of such matters until the disbarred attorney seeks readmission, witnesses no longer may be available or their recollections may be dimmed by the passage of time. 282 Conn. 14-15.
This language came after the court's rejection of a claim of mootness (given the status of the disbarred attorney as a non-attorney) because of the potential for an application for reinstatement/readmission:
In the present case, the question is not purely academic. The defendant has not been disbarred for life, but for a specified period of time. Accordingly, she may seek readmission to the bar when her term of disbarment expires; see Practice Book § 2-53; and adjudication of her predisbarment conduct will provide the plaintiff with a more complete and accurate record of her background and character if she applies for readmission. See In re Sloan, 135 App.Div.2d 140, 142, 524 N.Y.S.2d 699 (1988) (postdisbarment disciplinary proceedings not deemed moot " [i]n view of the fact that respondent will, at some future date, be eligible to apply for reinstatement"). 282 Conn. 14.
There is a significant difference, then, between disqualification of an attorney from the practice of law for a finite or indefinite term of years, and a lifetime disqualification--only in the latter scenario is there a sense of absolute finality. Only in the latter scenario is there no concern about the possible need for further proceedings, including investigation of further claims of misconduct.
See, also, In re Kliger, discussed below, quoting from a Florida decision in which the reliance of bar officials is identified as a proper consideration.
Respondent argues that a resignation should not be more permanent than a disbarment, and an application for reinstatement is not categorically barred by the applicable rules (Practice Book § 2-53). As with many " self-evident truths" in life and in law, why not? Disbarment has no voluntary quality to it (other than perhaps with respect to the conduct that led to the disbarment), and if the rules explicitly contemplate consideration of an application by someone subject to disbarment--after an appropriate/designated period of time--then disbarment is not inherently permanent. A resignation with a waiver of right to reapply, however, is facially intended to be permanent--why else incorporate a waiver of right to reapply? A waiver of right to reapply does not automatically attach to every resignation or any other form of discipline--a waiver is a choice, an adjunct to the resignation. There is a contractual quality to a resignation with waiver--there is a quid pro quo between finality to the resignation and the cessation of any/all investigation. Respondent could have resigned without the waiver--but without the associated and presumably-desired benefit of preclusion of further grievances and preclusion of further investigations.
This distinction is not unprecedented. In Application of Kliger, 1997 WL 625451, at *3 (Conn.Super.Ct. Sept. 26, 1997) [20 Conn.L.Rptr. 435, ], the decision quotes from a Florida decision articulating the bargain-like quality of a resignation coupled with a waiver: " We take this opportunity to point out that this holding [concerning disbarment] does not apply where a member of The Florida Bar charged with misconduct enters into an agreement with The Florida Bar to resign from the Bar, and promises never to petition for reinstatement, in exchange for a dismissal of the charges of misconduct. In this situation the member of the Bar will be bound by the agreement he makes with The Florida Bar."
It was not until more than three years later, in January of 2016, that respondent first raised the issue of validity of the waiver. (#116.00.) It was at that time that the concerns of his wife first were articulated and advanced as a reason why his waiver--at that point, more than seven years earlier--was claimed to have been insufficiently knowing and voluntary. Although the supplemental objection claims that the new pleading is a supplement to the earlier objection, the new pleading invokes Practice Book § 1-8 and claims that it would not work an injustice to allow respondent to be considered for reinstatement. The supplemental submission also attempts to distinguish a ruling in another matter in which an attorney had sought readmission to the bar--the court's granting of a motion to dismiss (#102.10) in J.D. Grievance Panel v. Hurley, J.D. Middlesex at Middletown, MMX-CV-115008050S, . In Hurley, the court rejected invocation of Practice Book § 1-8 and strictly enforced the terms of the stipulated disposition.
Note that, again, a motion to dismiss was perceived to be an appropriate mechanism for deciding the issue.
In the supplemental objection, the respondent correctly states that Hurley does not necessarily preclude the exercise of discretion by this court--but it does not support respondent's position that the court should disregard the agreed disposition and especially the waiver of the right to reapply. Mr. Hurley had not agreed to a permanent bar on readmission; respondent did.
At this point, the court will turn to the recently-articulated reasons for the 2008 decision to resign with a waiver of the right to seek reinstatement, and whether those reasons can justify disregard for the otherwise-presumptive and absolute nature of the waiver. In affidavits filed in 2016 (attached to #116.00), the respondent-applicant claimed that his wife was concerned that the ongoing investigation into the respondent might lead to disclosure of the claimed misconduct of the respondent's father in law, which was perceived to have presented an unacceptable risk of injury to his wife's mental health. Thus, in his affidavit, the respondent states:
43. At the time, I had two significant concerns. First, my wife was consumed with fear that an investigation of my professional license would lead to public disclosure of her father's misconduct. Second, I was certain that I would be presumed to have engaged in misconduct by virtue of my past association with [two attorneys who had had serious legal difficulties as recounted in earlier paragraphs].
44. In light of the totality of the circumstances and an overriding concern for my wife's mental health and well-being, I made an ill-considered decision to choose the path of least resistance and resign rather than defend the grievance.
45. Under the circumstances, I believe that by resigning I would protect my family's reputation and care for my wife as the matter would be resolved efficiently, quietly, and with little public interest.
Similarly, the affidavit filed by the respondent's wife expresses similar sentiments:
25. In mid-2008, when my husband informed me of the situation with the Statewide Grievance Committee (" SGC") and its investigation of him, I was overwhelmed with fear that his matter would lead to public disclosure of my family's personal and ugly secret.
26. I was also convinced that the past actions of my husband's law partners had made him a target for the SGC.
27. In the wake of [respondent's partner's] criminal matter, I had little to no faith and trust in the SGC and fully believed they were on a witch-hunt.
28. At the time, my only concern was that my husband do whatever he needed to do to protect my family's secret and avoid any exposure of my father's disgusting and abhorrent conduct.
29. I verbally expressed my concerns to my husband that is continuing to dispute the issue at hand with the SGC would lead to public disclosure of my father's behavior. As a result, I asked him to give up his license as opposed to having my family's secret exposed.
A number of observations about these excerpts need to be made. First, to the extent that the respondent is attempting to claim that his waiver was not knowing and voluntary, these excerpts do not appear to have any significant bearing on that claim. While the rationale may well be plausible and emotionally-attractive, the respondent's own characterization of his decision as " ill-considered" is not the equivalent of a negation of a knowing and voluntary decision. Nor, to the extent the term is invoked, do these facts constitute duress, an alternate characterization given by the respondent.
To conclude that a stipulated judgment resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be. See McCarthy v. Taniska, 84 Conn. 377, 381-82, 80 A. 84 (1911); 1 Restatement (Second), Contracts § 175, especially comment b (1981). Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995).Restatement (Second), Contracts § 175 makes it almost unnecessary to reach the discussion in comment b, relating to the absence of any reasonable alternative (noting that the ability to defend a legal proceeding generally is an available reasonable alternative). Before reaching the issue of alternatives, the necessary element--absent here--is some improper threat.
" For example, the threat of commencing an ordinary civil action to enforce a claim to money may be improper. See § 176(1)(c). However, it does not usually amount to duress because the victim can assert his rights in the threatened action, and this is ordinarily a reasonable alternative to succumbing to the threat, making the proposed contract, and then asserting his rights in a later civil action." Restatement (Second) of Contracts § 175 (1981).
" Duress takes two forms. In one, a person physically compels conduct that appears to be a manifestation of assent by a party who has no intention of engaging in that conduct. The result of this type of duress is that the conduct is not effective to create a contract (§ 174).
The court does not believe that the articulated concerns of the respondent and his wife can be characterized as the equivalent of an improper threat or the need to react/respond to an improper threat. An improper threat is discussed in § 176 of the Restatement . The concern about disclosure of a skeleton in the closet relating to the respondent's wife's family has nothing to do with anything that might be characterized as an improper threat. It is an unforeseeable consequence, from the perspective of the Statewide Grievance Committee and the Chief Disciplinary Counsel, one that cannot have any bearing on the finality of the resignation.
Further, it would be an untenable stretch to allow such an indirect effect to be considered indicative of no available alternative but to agree to the resignation. Particularly with respect to disciplinary investigations, a decision whether to resist or acquiesce virtually always would have a ripple-effect of consequences for the person under investigation and his/her family--conditioning the binding effect (finality) of such a decision on 20-20 hindsight, years later, could only wreak havoc on the process of voluntary agreements.
In #119.00, the respondent cites Traystman, Coric & Keramidas v. Daigle, 84 Conn.App. 843, 844, 855 A.2d 996 (2004) in support of his claim of duress. Although duress was found to have existed in the cited case, the current situation does not even approach any of the standards identified for duress in that case.
" For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will . . . " Where a party insists on a contractual provision or a payment that he honestly believes he is entitled to receive, unless that belief is without any reasonable basis, his conduct is not wrongful and does not constitute duress or coercion under Connecticut law. It is also well settled that [c]ontracts signed under an attorney's threat to withdraw from the case [are voidable] because of undue influence and the relatively helpless situation of the client, who would otherwise be forced into the often impractical alternative of starting all over again with another attorney who is unfamiliar with the case." (Internal quotation marks and citations, omitted.) 84 Conn.App. 846.
Respondent cannot get beyond the first element as quoted above. There was no wrongful act or threat--certainly not by bar officials and not by any known identified person (including third parties). Further, respondent had at least two reasonable alternatives--resign without waiver or contest the charges. It is not clear how the respondent might be characterized as having " acceded" in the absence of any claimed pressure being applied to him (by the Committee or Counsel) to resign with a waiver as opposed to some other outcome. There is no evidence that at the time the decision was made to resign with a waiver, the outcome was unfair. Again, as repeatedly noted, the waiver provided a benefit that the respondent now claims he very much sought, even if perhaps the reasons for that desire were unknown to bar officials at the time.
Respondent's claim is not analogous to the attorney-threatening-to-withdraw scenario, also identified as a basis for a claim of duress in Traystman . Respondent was not at risk of being placed in a helpless situation, with a choice between two intolerable outcomes. To the contrary, the respondent was represented by counsel, and courts often presume that counsel have advised clients properly; see, e.g., State v. Wolff, 237 Conn. 633, 659, 678 A.2d 1369 (1996).
Respondent asserts that his claim of duress, in turn, entitles him to a hearing on the claim, as a matter of due process. A hearing is required only if there is a factual issue that cannot be resolved without benefit of an evidentiary hearing; Property Asset Management, Inc. v. Lazarte, 163 Conn.App. 737, 749, 138 A.3d 290 (2016). There are many situations in which the court's decision as to whether an evidentiary hearing is warranted is entrusted to the discretion of the court. See, e.g., In re Kaleb H., 131 Conn.App. 829, 837, 29 A.3d 173 (2011), aff'd, 306 Conn. 22, 48 A.3d 631 (2012) (court has discretion as to whether to grant a motion seeking a competency evaluation); State v. Brown, 235 Conn. 502, 529, 668 A.2d 1288 (1995) (court has discretion as to whether circumstances require evidentiary hearing on claim of juror misconduct). Indeed, by analogy, the rationale for a motion to strike (Practice Book § 10-39 et seq.) is that the claims being asserted are fatally flawed without regard to the extent of evidence that might be offered, such that no evidentiary hearing is required to determine insufficiency.
Although discussed earlier from a different perspective, the court concludes that the claim of duress--respondent waived the right to apply for readmission to mollify his wife's concerns that a highly embarrassing situation involving allegations directed to her father might surface if investigations were to continue--cannot constitute duress in this context, and cannot vitiate the knowing and voluntary nature of the waiver as stated by respondent in 2008 and as found by the court in 2008. In other words, accepting the factual contentions set forth in the affidavits recently submitted relating to concern about disclosure of family skeletons, the court cannot conclude that that is a cognizable basis for finding a lack of knowing and voluntary waiver. Again, it identifies a difficult decision that needed to be made, but not of a nature that might undermine (or possibly undermine) the enforceability of a waiver--the desire for avoidance of that type of disclosure lacks the coercive quality needed for duress.
Compounding that insufficiency, no explanation has been provided as to why the claim of duress and its variants was not raised in 2012 when the application was filed. The application did not refer to a claimed lack of knowing and voluntary waiver in general terms and made no mention--even conclusorily--of duress. Instead, the arguments were somewhat technical including a claimed failure to obtain a waiver of appellate rights.
" There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it." Citicorp Mortgage, Inc. v. Tarro, 37 Conn.App. 56, 60, 654 A.2d 1238 (1995). Is there any issue, on the record before the court, as to whether the respondent had knowledge of the existence of his right to seek reinstatement under Practice Book § 2-53 and expressed his intention to relinquish that right?
In a pair of decisions addressing the issue of waiver of the right to a jury trial (via contractual provision), our appellate-level courts highlighted the issues and burdens.
We begin by examining our law regarding the general concept of waiver. Waiver involves an intentional relinquishment of a known right . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. Inherent in the concept of waiver is the notion of assent, which is an act of understanding that presupposes that the party to be affected has knowledge of its rights but does not want to assert them. Waiver may be inferred from the circumstances if it is reasonable so to do . . . Whether conduct constitutes a waiver is a question of fact . . . When the trial court is required to make a finding that depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and cross-examine adverse witnesses . . . In order to prevail at this trial-like hearing the movant must introduce evidence to establish his claim." (Internal quotation marks and citations, omitted.) L& R Realty v. Connecticut National Bank, 46 Conn.App. 432, 437-38, 699 A.2d 291 (1997), rev'd, 246 Conn. 1, 715 A.2d 748 (1998).
The Appellate Court concluded that an evidentiary hearing relating to waiver was required. The Supreme Court granted certification to appeal, and reversed the Appellate Court's determination.
Significantly, at oral argument on the motion to strike the cases from the jury docket, L& R merely rested on its claim that an evidentiary hearing was required because the CNB bore the burden of proving that the waiver was knowing and voluntary. L& R did not allege that the waivers had been entered into involuntarily, nor did it come forward with evidence of lack of intent to be bound. Although L& R pointed out that Gail LeFoll, who had signed a guarantee containing a waiver, was not an attorney, that fact alone was insufficient to raise a question as to whether she lacked the intent to be bound by the terms of the waiver agreement. There is no evidence on the face of the documents indicating that the parties did not accede to the jury trial waiver. The clause contained in the loan agreement signed by the general partners of L& R and the clause contained in the guarantee signed by Gail LeFoll were both located in separate paragraphs located near the signatures and were printed in boldface. The waiver clause in the loan agreement was explicitly titled " Waiver of Trial by Jury." Furthermore, there was not even an allegation of a lack of intent to be bound. There was, therefore, no basis for the trial court to suspect that the parties had not clearly intended to be bound by the jury trial waiver clause, and there was no reason for the trial court to conduct an evidentiary hearing to determine the validity of the waiver. We conclude that the trial court properly granted CNB's motion to strike the cases from the jury docket and properly denied L& R's request for a hearing to determine the validity of those waivers." L& R Realty v. Connecticut Nat. Bank, 246 Conn. 1, 16-17, 715 A.2d 748 (1998).
The waiver in this case was not a clause contained in a lengthy document, but rather was recited in a brief, double-spaced document--one page plus one line on the second page. In 10 lines of text, there are three references to waiver--two references to the waiver of the right to apply for readmission and the third reference to waiver included in the statement that " I submit this resignation and waiver knowingly, voluntarily and of my own free will." The respondent further recited that he was represented by counsel (the carryover line on the second page), and of course the respondent himself was an attorney; cf. L& R as quoted above: " Although L& R pointed out that Gail LeFoll, who had signed a guarantee containing a waiver, was not an attorney, that fact alone was insufficient to raise a question as to whether she lacked the intent to be bound by the terms of the waiver agreement."
Further, there was a hearing before the court, explicitly for the purpose of allowing the court to determine, on the record, whether the resignation was knowing and voluntary, and the court (Adams, J.) made such a finding:
After hearing had, and in accordance with Practice Book § 2-52, I hereby find that, the Respondent, Thomas J. Hickey, Juris No. 308735, has knowingly and voluntarily resigned from the Bar of the State of Connecticut and has knowingly and voluntarily waived the privilege of applying for readmission to the Bar at any time in the future. I hereby accept the resignation and waiver, effective the state, November 12, 2008. (#105.00.)
Still further, the record reflects that the resignation was not a spur of the moment decision, as the resignation process, itself, was somewhat " contested." As reflected in #104.00 (filed by respondent), Bar officials were reluctant to allow the resignation to proceed, while document requests directed to the respondent were outstanding. That memorandum of law argued that it was inappropriate if not unconstitutional to refuse to allow a resignation " because the Respondent has asserted his constitutional rights" to refuse to produce documents that had been requested. Approximately 2 weeks after that memorandum had been filed, a letter from counsel for respondent was sent to the court (and the original is in the court file) indicating that additional documentation had been provided such that the Bar officials " agreed to withdraw their objections to the Resignation and Waiver of Thomas J. Hickey." The resignation process, then, took 2 months--the resignation document is dated September 12, 2008, and the hearing and resulting acceptance of the resignation and waiver occurred on November 12, 2008.
Based on the history as recited in the immediately-preceding paragraph, the waiver was a focal issue and important to both sides. Pursuant to Practice Book § 2-52(e), the waiver would put an end to all investigations of alleged misconduct. The dispute over allowing the respondent to resign, while document requests were still outstanding, reflects the Bar officials' unwillingness to allow closure, prior to receiving the requested materials. Conversely, the respondent's desire to have the resignation accepted, notwithstanding the refusal to comply with record-requests, emphasized the importance of the waiver; if the waiver had not been an important element, the option clearly existed to submit a resignation without a waiver. Thus, the claimed too-abbreviated inquiry by the court appears to be a make-weight argument--the court was not compelled to treat an attorney, in turn represented by an attorney, as the equivalent of a self-represented party requiring a detailed canvass before accepting an agreement on the record.
In other words, there was a great deal of attention being paid to the waiver and the consequences of inclusion of the waiver as part of the resignation. There is nothing before the court to suggest that the respondent did not understand or appreciate what he was doing when he stated in his resignation that " I understand that I am waiving the privilege of ever applying for readmission to the bar of the State of Connecticut at any time in the future." Other than the claim of emotional/family pressures, first articulated almost eight years later, there is nothing to suggest that the decision to include the waiver provision was anything but voluntary and knowing. Indeed, the rationale most recently articulated makes it unambiguous that the consequences of the waiver were very much intended and the centerpiece of the decision-making process, because that was the only way to preclude future investigations.
Note that this history/perspective has a reverse Audubon -like quality to it. The parties were at odds over the disciplinary process itself as well as the eventual outcome, and reached something of an agreement. The petitioner obtained what it wanted (sufficient documents to allow it to conclude its then-ongoing investigation of the respondent's trust account) coupled with a form of discipline (resignation), and the respondent obtained something of value to him (total cessation of investigations into his conduct as an attorney for disciplinary purposes, which also would preclude (effectively) any collateral consequences such as disclosure of family skeletons). This may not have been a settlement in the ordinary litigation sense, but it does implicate the same policy concerns; years later, respondent claims that there was no final agreement as to disposition.
Audubon Assoc. Limited Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993).
See, also, Application of Kliger, discussed earlier, in which a Florida decision identified the bargain-nature of such a resignation.
Another perspective is that the respondent seeks to open the determination--" judgment" --from 2008, whereby it was determined that he had resigned from the bar with a knowing and voluntary waiver of the right to reapply. He now claims, and seeks to prove, that his actions were not knowing and voluntary. Aside from the generally applicable 4-month limit on seeking to open a judgment, the granting of such relief is discretionary: " Once the trial court has refused to open a judgment, the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of its discretion." (Internal quotation marks and citations, omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 106, 952 A.2d 1, (2008). Further, " [a] motion to open in order to permit a party to present further evidence need not be granted where the evidence offered is not likely to affect the verdict." (Internal quotation marks and citations, omitted). Id.
The court does not wish to suggest that it does not understand, at least intellectually, the almost-inevitable presence of emotional/family pressures associated with a disciplinary investigation and the possible need to contemplate resignation from the bar. (It would be perhaps too facile to state that the court can empathize.) But it is the very universality of some version of those emotional/family pressures that precludes treating them as undercutting the voluntariness of the resignation and waiver, particularly when the pressure is indirect (attorney's spouse's concern about disclosure of highly-embarrassing information relating to the spouse's parent--with no apparent direct connection between the conduct of the spouse's parent and the conduct of the attorney). The desire or need to accommodate a spouse may be understandable (and perhaps admirable), but in no way does that vitiate the voluntariness of the act of resignation (or the knowing quality of the act).
This was a choice--perhaps a difficult choice but not a " Sophie's choice" --and the need to make a difficult choice does not convert that decision-making process into an involuntary action. See, Computer Reporting Service, LLC v. Lovejoy and Associates, LLC, 167 Conn.App. 36, 59 (2016) (rejecting claim that need to transfer small claims case to regular docket if defendant wished to pursue substantial counterclaim made decision to move to transfer to regular docket " involuntary" conduct).
The initial application and initial objection to the motion to dismiss do not identify any plausible basis for a claimed lack of enforceable waiver. Simply saying " I didn't mean it" is not a basis for challenging the waiver, four years after the fact, four years after a contested process in which there had been initial resistance to acceptance of the resignation with waiver, and four years after conclusion of a process in which he had been represented by counsel throughout the process. For the same reason, the claimed lack of notice of a right to appeal is formalistic, especially given the presumptive 20-day period in which to file an appeal (and again, the respondent had been represented by counsel) as compared to the four years before any issue was raised.
The court, then, is unpersuaded that there is any need for an evidentiary hearing and unpersuaded that the respondent has identified a potentially-cognizable basis for revisiting the voluntary/knowing quality of his resignation with waiver of right to apply for reinstatement.
Conclusion
Given the sui generis nature of admission and other attorney-regulatory proceedings; the facial inapplicability of the usual rules pertaining to civil litigation; and the modest history of the use of a motion to dismiss to address threshold issues such as are presented here, the court has concluded that the motions to dismiss filed by the Committee and Counsel are proper vehicles for raising the issues they have sought to raise.
The court does not believe that the respondent (as applicant) is entitled to an evidentiary hearing. An evidentiary hearing presupposes the existence of a factual issue needing resolution. The court has concluded, however, that there is no factual issue needing resolution. The conclusory claim that the waiver of the right to reapply was not knowing and voluntary is just that--a conclusory claim, insufficient to trigger a right to a hearing. The factual claim, set forth in the affidavits submitted (relating to the undisclosed motivation of avoiding any possible revelations relating to family skeletons), does not justify a hearing for essentially the obverse reason--accepting the facts as set forth in the affidavits, the respondent has not identified a basis on which the court might conclude that the waiver was not voluntary and knowing. To the extent that the respondent seeks to characterize the situation as amounting to duress, the existence of internal family stressors (probably near-universal in situations where resignation from the bar is being contemplated) cannot be equated to duress.
That appropriately segues to the issue of disposition. The essence of a waiver of the right to apply for readmission is finality, and the respondent has not identified a basis to disturb that finality. Assuming as claimed by respondent that he had nothing to hide relating to his conduct as an attorney--and the resignation with waiver ensured that there would be no further exploration in that direction--he obtained an additional (desirable/desired) benefit, unknown to the Committee and Counsel, i.e. the assurance that there would be no inadvertent discovery of the respondent's wife's family skeletons.
Fitness is not the issue in the context of a waiver of the right to apply for readmission--if it were, then there would be almost no difference between waiver and non-waiver situations. Waiver is preclusion of the right to be considered for readmission; the investigative slate is wiped clean and any newly-identified claims of impropriety do not get any follow-up. Respondent received the benefit of the implications of finality inherent in a waiver--no further investigation into his conduct and no possible inadvertent discoveries.
There was no rush to disposition that might be consistent with a claim of lack of knowing or voluntary waiver; rather, respondent, through counsel, had to press to allow his resignation to be considered, over the course of two months, while bar officials resisted the process until there was some level of satisfaction with the results of the then-pending investigation into financial irregularities.
The court does not rule out the theoretical possibility that factual or legal scenarios warranting further evidentiary proceedings might exist, e.g. a colorable claim of cognizable duress. Given this history and these circumstances, the court cannot conclude that there is anything in the record that vitiates the waiver of the right to reapply for admission, and the court cannot conclude that the submissions of the respondent raise any issues requiring further evidence.
For all of these reasons, then, the motions to dismiss are granted.
In the other, a person makes an improper threat that induces a party who has no reasonable alternative to manifesting his assent. The result of this type of duress is that the contract that is created is voidable by the victim." Restatement (Second) of Contracts 72 Intro. Note (1981). There is no suggestion of any physical threat; see, § 174.