Opinion
No. CV-03-0824856 S
October 20, 2004
MEMORANDUM OF DECISION
This matter is before the court on the plaintiff's appeal, pursuant to Rule of Practice § 2-38(a), from a decision by the Statewide Grievance Committee, which reprimanded the plaintiff, Arthur D. Machado, who is an attorney. For the reasons stated below, the court finds that the reprimand issued by the Statewide Grievance Committee is fully supported by the record.
I Background
This matter arises from a complaint by a former client of the plaintiff, which resulted in a reprimand issued to the plaintiff for violations of Rules of Professional Conduct 1.2(a) and 1.4(a), by a reviewing committee of the Statewide Grievance Committee. Thereafter, pursuant to Practice Book § 2-35(g), the plaintiff filed a request for review by the Statewide Grievance Committee (Grievance Committee). The Grievance Committee issued its decision on March 21, 2003, in which it affirmed the reviewing committee's decision. See Record, No. 22 (Grievance Committee decision).
The record of the grievance proceedings was filed in this court on May 19, 2003. It this memorandum of decision, the court refers to that Record as "Record No. ___."
This appeal ensued. The parties submitted briefs and the court heard oral argument in connection with the appeal on September 15, 2004.
II Standard of Review
Practice Book § 2-38(f) provides, in pertinent part, "[u]pon appeal, the court shall not substitute its judgment for that of the statewide grievance committee or reviewing committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) in violation of constitutional, rules of practice or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Practice Bock § 2-38(f).
While the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166, et seq., does not apply to the Grievance Committee, the same principles as to the scope of judicial review are applicable. See Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 234-35, 578 A.2d 1075 (1990). The court's role "is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct." (Internal quotation marks omitted.) Weiss v. Statewide Grievance Committee, 227 Conn. 802, 812, 633 A.2d 282 (1993). "The burden is on the . . . committee to establish the occurrence of an ethics violation by clear and convincing proof." Id. Allegations of attorney misconduct must be proven by clear and convincing evidence, regardless of the nature of the sanctions ultimately imposed. See Statewide Grievance Committee v. Presnick, 215 Conn. 162, 171-72, 575 A.2d 210 (1990). "Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of evidence or questions of fact." (Internal quotation marks omitted.) Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996).
"An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action." (Internal quotation marks and citations omitted.) Dolgner v. Alander, supra, 237 Conn. 281.
"[A] reviewing court must defer to the discretion of the fact finder, whether it be the trial court or the committee, because the fact finder is in the best position to evaluate the evidence and the demeanor of the parties." (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 458, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).
III Discussion
Rule of Professional Conduct 1.2(a), concerning "scope of representation," provides, in pertinent part,"[a] lawyer shall abide by a client's decisions concerning the objectives of representation, subject to subsections (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued . . ." Subsection (c) provides that, "[a] lawyer may limit the objectives of the representation if the client consents after consultation." The official Commentary to Rule 1.2 states, "[t]he objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may be for a specifically defined purpose."
Throughout the balance of this memorandum of decision, reference is made to the Rules of Professional Conduct by their fill title or simply as the "Rules."
Subsections (d) and (e) are not pertinent to this matter.
Rule 1.4(a) states, "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
The Grievance Committee found that the plaintiff "needed to confirm his assumptions and beliefs directly with his client, the Complainant, preferably in writing, but he did not do so. The [Grievance] Committee concluded that the reviewing committee found by clear and convincing evidence that [the plaintiff] failed to abide by the Complainant's decision to file for bankruptcy and failed to consult with the Complainant regarding a change in the scope of representation from bankruptcy to release of a sales tax lien in violation of Rule 1.2(a) . . . The [Grievance] Committee noted that the reviewing committee concluded by clear and convincing evidence, that [the plaintiff's] failure to inform the Complainant that the Complainant's agent had instructed [the plaintiff] to change the scope of the representation, constituted a violation of Rule 1.4(a) . . . The [Grievance] Committee concluded that the reviewing committee's findings are supported by clear and convincing evidence." See Record, No. 22 (Grievance Committee's decision).
In his brief and at oral argument, the plaintiff argued that he was told by his incarcerated former client, Scott Adams, that the plaintiff should deal with Adams' agent, Cindra Cihocki, because communication with Adams was difficult, due to his incarceration. He contends that notice to Adams' agent constitutes notice to Adams for the purpose of complying with the provisions of Rules 1.2(a) and 1.4(a). See plaintiff's brief, p. 5.
He summarized the facts supporting this argument as follows: "Attorney Machado was hired to file a bankruptcy and resolve Adams' debt issues. Adams appointed Ms. Cindra Cihocki to act as his agent and communicate with Attorney Machado on his debt issues . . . During the bankruptcy process a tax lien was filed on property owned by Adams . . . Because of the urgency of the situation Attorney Machado's efforts were redirected by Cihocki to a related debt issue, the resolution of the tax lien . . . The Statewide Grievance Committee found Attorney Machado's redirection of the efforts to resolving the tax lien issue at the direction of Adams' agent, without direct contact with the principal, violated Rules 1.2(a) and 1.4(a) . . ." (Citations to the record omitted.) See plaintiff's brief, p. 5. He contends further that "[i]n light of the facts . . . it is unreasonable to assume Ms. Cihocki's authority would not extend to the redirection of Attorney Machado's efforts to resolving the tax lien issues." See plaintiff's brief, p. 6.
Before the reviewing committee, the plaintiff stated that, "The man came to my office for filing a bankruptcy — excuse me, I went to prison for him — for the purposes of filing a bankruptcy . . . I started working on his file, as I'm required to in my scope of representation, which was to file a bankruptcy." Record, No. 17 (Transcript of October 1, 2002 proceeding before the reviewing committee) (hereafter "Tr., p. ___"), p. 46. In his letter to the Windham Grievance Panel, dated March 27, 2002, Record No. 6, the plaintiff stated, "Mr. Adams contacted me either by letter or telephone in late 1999 or early 2000 to file a bankruptcy for him . . . I agreed to meet him at prison, and if appropriate, prepare and file a Chapter 7 bankruptcy petition for him."
As the preface to our Rules of Professional Conduct notes, the Rules are derived from the American Bar Association's (ABA) Model Rules of Professional Conduct: "[t]he Rules contained in the Rules of Professional Conduct as adopted by the American Bar Association and as recommended, with revisions, by the Connecticut Bar Association for adoption were approved by the judges of the superior court, effective October 1, 1986."
Under "Scope," the Rules provide, "[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms `shall' or `shall not.' These define proper conduct for purposes of professional discipline." As noted above, Rule 1.2(a) is one of those rules which contains imperatives, by using the word "shall" twice." Rule 1.4(a) contains a similar imperative.
The "Scope" section also notes that "[f]ailure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation."
An attorneys duty to his client, while based on a retention agreement, is a personal one. "[C]ourts have been mindful that the relationship between an attorney and client must involve personal integrity and responsibility on the part of the lawyer and an equal confidence and trust on the part of the client . . . The relationship between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith." (Citation omitted; footnote omitted; and internal quotation marks omitted.) Matza v. Matza, 226 Conn. 166, 183-84, 627 A.2d 414 (1993). There, our Supreme Court illustrated this central concept by quoting from Charles Dickens, Bleak House, in describing an attorney, "His clients want him; He is all in all." (Emphasis by the Supreme Court; internal quotation marks omitted.) Matza v. Matza, supra, 226 Conn. 183 n. 11.
Our appellate courts have provided guidance to lawyers and to the courts as to how to determine a Rule's meaning and applicability. As an aid to interpreting the Rules they repeatedly have looked to the ABA/BNA Lawyers' Manual on Professional Conduct (the "Lawyers' Manual"). See Pinsky v. Statewide Grievance Committee, supra, 216 Conn. 236; Statewide Grievance Committee v. Presnick, supra, 215 Conn. 172; Statewide Grievance Committee v. Fountain, 56 Conn.App. 375, 381, 743 A.2d 647 (2000).
The Lawyers' Manual states the following concerning Model Rule of Professional Conduct 1.4, which was adopted verbatim in Connecticut's Rule, "The duty is personal, and thus the lawyer must communicate directly with the client." Lawyers' Manual (1990), 31:503. "Lawyers . . . should take special care to keep clients informed — either in person or by letter — of every step and development in the representation." Lawyers' Manual (1990), 31:501.
Model Rule of Professional Conduct 1.4 states, "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
The plaintiff asks the court to revisit the Grievance's Committee's determination, based on his agency argument. "It is well settled that, [t]he nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn." (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 848, 817 A.2d 683 (2003).
The record contains clear and convincing evidence supporting the Grievance Committee's decision that, with regard to the plaintiff's representation of Adams, the two cited Rules were violated. The reviewing committee's finding, affirmed by the Grievance Committee, that the plaintiff's work on the tax lien issue was undertaken outside of the agency relationship authorized by Adams is supported by substantial evidence in the record.
For example, before the reviewing committee, the plaintiff stated that, due to internal stresses in his office organization at the time, he had been mistaken in not having a new fee agreement document prepared when Cihocki asked him to do work on the tax lien issue. See Tr., pp. 33, 36-37. As a result of this change in the scope of the plaintiff's representation, the retainer amount paid was depleted. See Record, No. 6 (plaintiff's letter to the Windham Grievance Panel, dated March 27, 2002). Shortly thereafter, Cihocki picked up the file and retained new counsel. The bankruptcy petition was not filed. See Tr., pp. 30-34.
Before the reviewing committee, the plaintiff stated also that after this proceeding is over, he plans to return to Adams the money which Adams paid to him. See Tr., p. 37.
Notwithstanding his acknowledgement of his mistaken conduct, the plaintiff asserts that it was reasonable for him to assume that Cihocki's authority from Adams extended to the redirection of the plaintiff's work to encompass the tax lien issue. It is unclear whether the plaintiff contends that Cihocki had actual authority or apparent authority.
"Actual authority may be express or implied . . . Implied authority is actual authority circumstantially proved. It is the authority which the principal intended his agent to possess . . . Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal and from the acts of the principal and [the] agent." (Citations omitted and internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates L.P., 260 Conn. 598, 607, 799 A.2d 1027 (2002).
"Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal . . . The issue of apparent authority is one of fact to be determined based on two criteria . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citations omitted and internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734-35, 629 A.2d 333 (1993).
The plaintiff cites several facts on which he relies to support his contention that it is unreasonable to assume Cihocki's authority would not extend to the redirection of his efforts. See plaintiff's brief, p. 6. Among these are that "Adams told Attorney Machado Ms. Cihocki was to act as his agent;" that "Attorney Machado spoke with Adams at his initial meeting and at least once by telephone regarding the tax liens;" and "the tax liens were among the debts to be discharged in the bankruptcy." See plaintiff's brief, p. 6.
Besides ignoring his own statement to the reviewing committee, quoted above, concerning his mistake in not having a new fee agreement prepared, the plaintiff also ignores Adams' statements. Adams testified before the reviewing committee that, after he retained the plaintiff for a flat fee to complete his "entire bankruptcy," see Tr., p. 11, he had one opportunity to speak with the plaintiff by telephone, in which he asked the plaintiff questions regarding the tax lien which "were of a fairly simple nature and should not have incurred any additional expense. They were basically to the effect of how the tax lien was going to affect my bankruptcy, should I pay these taxes before filing bankruptcy, should I not pay them, would I still be liable for them after I file bankruptcy." See Tr., p. 13. While Adams acknowledged that Cihocki contacted the plaintiff for Adams, see Tr., p. 11, he denied that she was his agent. See Tr., p. 11. Adams stated that the plaintiff's office, against Adams' instructions, gave "my entire file to an unauthorized party." See Tr., p. 25. Adams also stated that he believed that the plaintiff had taken advantage of the fact that he was incarcerated. See Tr., p. 20.
Before the reviewing committee, the plaintiff testified and cross-examined Adams. Neither Adams nor the plaintiff testified before the reviewing committee that Adams had given a power of attorney to Cihocki. In his neither of his two response letters to the Windham grievance panel, Record Nos. 6 and 12, dated March 27, 2002, and June 13, 2002, did the plaintiff contend that either Adams or Cihocki ever stated to him that Adams had given a power of attorney to Cihocki. In addition, in his letter, dated March 3, 2003, requesting review by the Grievance Committee of the reviewing committee's decision, the plaintiff summarized the facts, but did not suggest that Cihocki had a power of attorney from Adams. See Record, No. 20.
At the oral argument before the court, the plaintiff stated that it was his belief that Cihocki had a power of attorney. As discussed, evidence of a power of attorney is not part of the record on appeal. See discussion below of the plaintiff's presentation of supplementary material after the oral argument.
"[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct . . . [A]s a reviewing court [w]e must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Citation omitted; footnote omitted; internal quotation marks omitted.) Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 209-10, 804 A.2d 1027 (2002).
In essence, while the trier of fact, here the reviewing committee, concluded that Cihocki acted as Adams' agent, it also concluded that the plaintiff's "work on removing the sales tax lien was outside the scope of the agency relationship authorized by [Adams]." See Record, No. 18 (reviewing committee decision), p. 2; the Grievance Committee agreed, see Record No. 22, p. 2. The determination of the scope of the agency relationship was made by the reviewing committee after hearing the testimony of the witnesses and observing their demeanor. As the trier of fact, it was the reviewing committee's responsibility to assess the witnesses' credibility and the weight of the evidence. It is apparent to this court that the reviewing committee's determination of the scope of the agency relationship, which was affirmed by the Grievance Committee, is supported by substantial clear and convincing evidence in the record, including Adams' and the plaintiff's testimony. The conclusions which followed are legally and logically correct. It is not this court's function here to act as the finder of fact.
Although the court stated to the parties, on September 15, 2004, after hearing their oral arguments, that it considered the matter to be fully submitted, the plaintiff subsequently submitted what he termed "supplementary material in support of plaintiff's appeal," dated September 17, 2004. Included in this material are an affidavit from Cihocki, claiming that she had a power of attorney from Adams, which is now lost, and an affidavit from the plaintiff, both dated September 17, 2004.
As the plaintiff notes in his supplementary material, an appeal from a decision of the Grievance Committee is normally limited to a review of the record. Practice Book § 2-38(d) provides, in pertinent part, "The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the statewide grievance committee or reviewing committee are not shown in the record, proof limited thereto may be taken in the court."
The plaintiff does not argue that any irregularities in procedure occurred before the reviewing committee or the Grievance Committee. Instead, he asserts that the court should consider these affidavits because, in its brief and at oral argument, "the respondent made an assertion, not supported or even referenced by the record," that Cihocki did not have a power of attorney. He also states that he was unable to locate Cihocki until September 16, 2004, one day after the oral argument. See Supplementary Material, p. 1.
Although he claims that Cihocki had authority to change the scope of his representation of Adams, the plaintiff did not even know her name at the time of the hearing before the reviewing committee. See Tr., p. 22. As noted, the court must defer to the reviewing committee's assessment of the credibility of the witnesses and the weight of the evidence.
The statement by the Grievance Committee in its brief (#103), p. 6, that the "record contains no evidence of any power of attorney executed by [Adams] to Ms. Cihocki," was made on November 20, 2003, over nine months before the oral argument before the court. There is certainly nothing improper about commenting, either in a brief or at oral argument, for the purpose of pointing out a weakness in the plaintiff's argument, about the lack of evidence in the record. See ARB Construction, LLC v. Pinney Construction Corp., 75 Conn.App. 151, 160 n. 5, 815 A.2d 705 (2003).
The court would be contravening Practice Book § 2-38(d) if it were to consider the newly submitted affidavits. In so doing, it also would be improperly taking on the role of fact finder. See Daniels v. Statewide Grievance Committee, supra. As noted, the plaintiff had the opportunity, in October 2002, to present evidence and to cross-examine Adams, at the hearing conducted by the reviewing committee. See Record, No. 17 (transcript of hearing). Neither Adams nor the Grievance Committee would have the opportunity to contradict or cross-examine either Cihocki or the plaintiff in response to the evidence which the plaintiff now asks the court to consider and which was not part of the record. The court declines to consider the supplementary material.
The plaintiff also argues that he "lacked the scienter necessary to constitute a violation" of the Rules. See plaintiff's brief, pp. 6-8. As our Appellate Court observed in Statewide Grievance Committee v. Presnick, 18 Conn.App. 316, 322, 559 A.2d 220 (1989), a finding of a professional misconduct violation does not necessarily depend on a finding of corrupt motive or bad faith. "[I]t is not a defense to an ethical violation that the attorney did not act in bad faith or intend to violate the code." (Internal quotation marks omitted.) Daniels v. Statewide Grievance Committee, supra, 72 Conn.App. 211. See Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 488, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992) (lawyers are chargeable for deviations from the codes governing their conduct).
As noted, both Rule 1.2(a) and Rule 1.4(a) contain the imperative "shall." The fact that the plaintiff may have acted in good faith does not negate the substantial evidence in the record that the two Rules were violated.
Finally, the plaintiff also argues that Adams' discharge of the plaintiff alleviated him of any further duty, citing Rule 1.16(a)(3) of the Rules of Professional Conduct, which provides that a lawyer shall not represent a client after he is discharged. See plaintiff's brief, pp. 3-4. This argument is unavailing. The findings of violations of Rules 1.2(a) and 1.4(a) were based on the plaintiff's failures to abide by Adams' decision to file for bankruptcy, his failure to consult with Adams regarding the change in the scope of representation, and the failure to inform Adams that Cihocki had instructed the plaintiff to change the scope of the representation.
The evidence in the record is clear and convincing that these failures to comply with the Rules occurred prior to the removal of the file from the plaintiff's office by Cihocki, when he worked on the sales tax lien issue and the retainer which Adams had paid to the plaintiff for the bankruptcy was depleted thereby. For example, the plaintiff testified that, shortly after his single meeting with Adams, he began receiving telephone calls from Cihocki concerning the sales tax lien issue. He stated that "she was trying to get me to clear the lien so she could reopen the store." See Tr., p. 31. The plaintiff testified that he "did a fair amount of work trying to chase down what was needed to be done to get this tax lien released." See Tr., p. 31. He made what he described as a "bunch of telephone calls." See Tr., p. 31. Eventually, he advised Cihocki, not Adams, that "I'm not a person who just does this tax lien work, I was retained for a bankruptcy." See Tr., p. 31. He advised Cihocki, not Adams, that "instead of paying me an additional retainer, you should take this file and find an attorney in the Meriden area who can help you." See Tr., pp. 31-32. She subsequently picked up the file. Clearly, the violations of Rules 1.2(a) and 1.4(a) occurred prior to the time when the file left the plaintiff's office.
To the extent that the plaintiff listed other issues in his appeal, the court must deem them to be abandoned, since they were not developed, either by being briefed or at oral argument. See Aillon v. Meachum, 211 Conn. 352, 356 n. 4, 559 A.2d 206 (1989).
CONCLUSION
For the reasons stated above, the court finds that the decision issued by the Statewide Grievance Committee is fully supported by clear and convincing evidence and is correct as a matter of law. Accordingly, the plaintiff's appeal is dismissed. Judgment may enter in favor of the defendant, the Statewide Grievance Committee. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT