Opinion
No. FA 78-0223144
May 27, 2011
MEMORANDUM OF DECISION
I
BACKGROUND AND FACTS
The parties in this case originally filed post-judgment motions for contempt and modification of alimony, based upon the original judgment of the court, Reicher, J., issued on March 30, 1979. Those motions were heard by the court on May 6, 2011, at which the plaintiff appeared in person from his home state of Texas and was represented by counsel. Due to her poor health, and throughout the proceedings in this matter, the defendant appeared telephonically from her home in Philadelphia. She was also represented by counsel, pro hac vice. That hearing was concluded with a finding of contempt and a memorandum of decision was filed in support of this finding by the court on May 13, 2011.
While these proceedings were pending, the defendant filed a motion for sanctions, No. 140, against the plaintiff's attorney, Jennifer Height, for failing to notify him that her client would not be in Connecticut for the originally scheduled hearing in this matter on April 15, 2011. Although Attorney Height was granted permission by the court for the plaintiff to appear telephonically from Texas, this was done without notice to the defendant in violation of a specific directive of the court, Prestley, J., in this case.
Several telephonic hearings occurred in advance of the final hearing on the motions for contempt and modification, eventually held on May 6, 2011. One particular hearing was held by Judge Prestley concerning, inter alia, the anticipated presence of the plaintiff to address the defendant's allegations of contempt. It was clearly stated by Judge Prestley on the record that the plaintiff was expected to be in Connecticut for the contempt hearing scheduled for April 15, 2011. It was then clearly stated by Attorney Height, representing the plaintiff, that there was no firm decision made for her client to be in Connecticut for the hearing and that there would be, in all likelihood, a motion filed to continue the matter or for him to attend telephonically. It was then emphatically stated by Attorney Paul, the defendant's attorney, that any such motion would be strenuously opposed absent medical documentation of an inability to attend in person. Anticipating the possibility of a request for a telephonic hearing, Judge Prestley required that it be in writing with notice to opposing counsel, as would otherwise be the proper practice. At all times, Attorney Paul referred to this request for a telephonic hearing as a motion.
On April 12, 2011, Attorney Height submitted a letter to Jeanne Hayes, the Caseflow Coordinator for the Hartford family docket, requesting a telephonic hearing due to financial hardship. According to an affidavit filed with the court in this matter by Attorney Height's paralegal, Lisa Stutskey, she at all times indicated that the request for a telephonic hearing was opposed by Attorney Paul. By presenting the request as opposed, it was not considered to be an ex parte communication because the word opposed conveys, by strong implication, that the opposing party is aware of the communication. Absent a written objection, the request was granted by Judge Taylor, the trial court judge in this case.
In fact, neither the request by Attorney Height nor the granting of it by Judge Taylor was conveyed to Attorney Paul, who became aware of this sequence of events at the hearing scheduled on April 15, 2011. Because the plaintiff's presence in Connecticut was legitimately anticipated by Attorney Paul, a continuance of the hearing was granted at his request and the court specifically ordered the plaintiff to be present at the next hearing. It must be noted that Attorney Paul is an attorney from Philadelphia who is licensed to practice law in Pennsylvania. He appeared in this case pro hac vice and pro bono. Therefore, he travelled to and from Philadelphia at his own expense on April 15, only to be thwarted by this unanticipated turn of events. As stated previously, the hearing on the underlying motions for contempt and modification ultimately occurred with the plaintiff physically present in Hartford on May 6, 2011.
A hearing on the present motion for sanctions proceeded on May 19, 2011, at which Attorney Height appeared in person and Attorney Paul appeared telephonically. Attorney Height credibly stated to the court that she actively attempted to avoid her client's presence in Connecticut for financial reasons, as anticipated by all parties, by researching a video conferencing option and then, ultimately, by successfully requesting a telephonic hearing. Her admitted failure was that she inadequately ensured that her paralegal informed Attorney Paul of her request for a telephonic hearing, as specifically instructed by Judge Prestley. It should be highlighted, however, that Attorney Height's letter had no certification or other indication of notice to opposing counsel.
It appears clear from Lisa Stutsky's affidavit that she believed a letter requesting a telephonic hearing was all that was required by the court. From these facts, the court finds by clear evidence that Attorney Height's paralegal decided that notification of Attorney Paul was not required. However, the court further concludes that Lisa Stutsky's understanding of court protocols for telephonic hearings was based upon her conversation with Jeanne Hayes. Therefore, Lisa Stutsky's intentional actions were based on a misunderstanding of the requirement of notification in this case, pursuant to Judge Presley's directive. It is not clear to the court, however, whether Attorney Height intentionally ratified this position, although it is certainly implied by her signature on the letter requesting the telephonic hearing. Absent clear evidence, therefore, the court will make no such finding of ratification in this case.
Attorney Height stated in open court that she had apologized to Attorney Paul for her error on April 15, which is uncontroverted. She also stated that she had directed her paralegal to inform Attorney Paul of her request for a telephonic hearing. The court further finds there is no allegation or finding of a selfish motive for Attorney Height's lapse in following Judge Presley's order. These facts suggest an honest mistake, however, there has been no record made of restitution offered to Attorney Paul, which would further reflect support for the conclusion that it was a mistake instead of an act of bad faith. The issue of the plaintiff's presence in Connecticut was ultimately rectified by Attorney Height, who had had her client comply with the court's order without further delay. Therefore, Attorney Paul's underlying case was not prejudiced from a tactical perspective, in that the plaintiff was before the court for cross-examination and subject to the full scope of remedies available upon a finding of contempt.
III
DISCUSSION
The defendant's motion for sanctions cites CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 394-95, 685 A.2d 1108 (1996); overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155, 735 A.2d 333 (1999). In Chowdhury, the Supreme Court upheld common law attorney sanctions imposed by the court for bad faith litigation conduct. In following Chowdhury, our Supreme Court has
generally accepted that the court has the inherent authority to assess attorneys fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons . . . This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation . . . It applies both to the party and his counsel . . . Moreover, the trial court must make a specific finding as to whether counsel's or a party's conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers to impose attorneys fees for engaging in bad faith litigation practices . . .
We agree, furthermore, with certain principles articulated by the Second Circuit Court of Appeals in determining whether the bad faith exception applies. To ensure . . . that fear of an award of attorneys fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and are taken for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of the lower courts . . . Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established . . . To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its wilful violations of court orders; the appropriate focus for the court is the conduct of the party in instigating or maintaining the litigation . . .
(Emphasis added; citations omitted.) Maris v. McGrath, 269 Conn. 834, 844-46, 850 A.2d 133 (2004).
Based upon the Chowdhury and Maris cases, it appears that the court may consider, but is not necessarily limited to, findings of "clear evidence that the challenged actions are entirely without color and are taken for reasons of harassment or delay or for other improper purposes . . . [including] a party's use of oppressive tactics or its wilful violations of court orders . . ." Id. These cases require "clear evidence," and "a high degree of specificity in the factual findings of [trial] courts." This language suggests a higher standard of proof than a preponderance of the evidence, but does not clearly state the standard of proof as clear and convincing evidence, as otherwise applicable to evidentiary findings in attorney discipline cases.
In cases involving code of conduct cases, the standard of proof has been specifically established by common law. Allegations of attorney misconduct must be proven by clear and convincing evidence, regardless of the nature of the sanction ultimately imposed. Statewide Grievance Committee v. Presnick, 215 Conn. 162, 171-72, 575 A.2d 210 (1990). "The phrase `clear and convincing proof' denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . The burden of persuasion, therefore, in those cases requiring a showing of clear and convincing proof is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Citations omitted.) Dacey v. Connecticut Bar Ass'n., 170 Conn. 520, 537, 368 A.2d 125 (1976); see Briggs v. McWeeny, 260 Conn. 296, 322-23, 796 A.2d 516 (2002). In this case, no specific violation of the code has been cited and in cases involving sanctions under the so-called "bad faith" rule, the standard of proof appears less clearly established.
In analyzing the claims made by Attorney Paul, he essentially alleges bad faith trial conduct involving an ex parte communications with the court, contrary to the direct instruction of Judge Presley. Based upon the evidence, the court finds that all of Attorney Height's acts were clearly intentional, except for her failure to notify Attorney Paul of her intention to proceed telephonically with her client on April 15, 2011. The court finds this to have been an unintentional act on her part, involving the negligent supervision of her paralegal. Therefore, the court concludes that Attorney Height's failure to disclose her request for a telephonic hearing was not a "tactic" or a "wilful" violation of a court order done in bad faith. Notwithstanding this finding of negligence, the court notes that Attorney Height's reputation is otherwise unblemished before the court and that her law firm is generally considered to follow high standards of conduct and professionalism. The court further finds that there was no selfish motive involved and that Attorney Height has shown some degree of remorse for her omission. For these reasons, bad faith has not been clearly shown and no sanction shall be imposed.
The court reaches this conclusion using the heightened standard of clear evidence.
In light of the nature of these allegations, the court has evaluated some elements of this case pursuant to the analysis applicable to attorney misconduct. By analogy to cases involving violations of the code of conduct, the court considered the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards). These Standards, although applicable by law after a finding of misconduct, may further elucidate the evidence in a manner consistent with the Chowdhury and Maris cases, which require "a high degree of specificity" in the court's factual findings. "The Standards provide that, after a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorney's mental state; (3) the potential or actual injury stemming from the attorney's misconduct; and (4) the existence of aggravating or mitigating factors . . . 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 . . .' 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.'" (Citations omitted; internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 54-56, 835 A.2d 998 (2003).
The fact remains that Attorney Paul was harmed by the negligent omission of Attorney Height. Attorney Paul was acting in the highest tradition of the bar in his pro bono service to an indigent client in his home city of Philadelphia. At his own expense, he traveled by train to Hartford on April 15, 2011, led by the erroneous belief that the plaintiff would be present to face his contempt hearing. Ordinarily, in contempt proceedings, the imposition of attorneys fees is an appropriate remedy and would have been so in this case, but they were neither requested nor granted, apparently in light of Attorney Paul's pro bono service. The remedy of sanctions in this case, however, is not directed at the plaintiff's contempt but is, instead, directed at his attorney's litigation conduct, which does not meet the applicable factual and legal test for the imposition of such a harsh remedy. Based upon the evidence, the court finds it was negligent to have signed a communication to the court without the requisite notification to opposing counsel, as ordered by Judge Presley.
Based upon these facts and applicable law, the motion for sanctions is denied. Nonetheless, Attorney Height is ordered to deliver a copy of this memorandum of decision to the Managing Partner of her law firm, Brown, Paindiris Scott, LLP.
SO ORDERED.