Opinion
No. CV 01 0510911-S
September 24, 2003
MEMORANDUM OF DECISION
Joseph Notopoulos, an attorney and commissioner of the Connecticut Superior Court, appealed this decision of the statewide grievance committee. It reprimanded him for violating the Rules of Professional Conduct. The committee's decision is affirmed in concluding that Notopoulos violated Rules 8.2(a) and 8.4(4), but it is rescinded in its conclusion that he violated Rule 3.5(3).
Rule 8.2(a) provides that "[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge."
Rule 8.4(4) provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."
Rule 3.5(3) provides that "[a] lawyer shall not . . . engage in conduct intended to disrupt a tribunal."
Attorney Notopoulos was admitted to the Connecticut Bar and is a commissioner of the Superior Court. This case arose from conservator proceedings in behalf of Notopoulos' mother and the subsequent probating of her estate upon her death. While the mother was in failing health, Notopoulos filed an application with the Connecticut Probate Court sitting in West Hartford and sought the appointment of a conservator of his mother's estate and person. At a hearing before Judge John A. Berman, Notopoulos objected to the court's receiving testimony from a representative of the department of social services. He further disagreed with the court's appointment of Carolyn Levine to investigate his mother's care and financial assets. Ultimately, the court appointed Notopoulos as conservator of his mother's estate and on January 20, 1999 appointed Denny Fuller conservator of her person.
Upon admission to the bar in Connecticut, an attorney takes two oaths. One is the oath of an attorney pursuant to General Statutes § 1-25. The other is the oath of a commissioner of the Superior Court pursuant to Practice Book § 2-10. See General Statutes § 51-85.
Over the next four months, Notopoulos had further disagreements with Judge Berman over, amongst other things, the payment of Levine and Fuller's fees and also over a "do not resuscitate order" which the judge issued to Fuller. This order permitted Fuller to refuse medical treatment for Notopoulos' mother without first consulting with either Notopoulos or his brother, who is also an attorney. The mother died on May 29, 1999. Thereafter, her estate was opened in the West Hartford Probate Court and Notopoulos with his brother were appointed co-executors of the estate. Subsequently, Notopoulos became dissatisfied with the administration of the estate when he did not receive timely notice of the probate decree closing the estate. It was at this point in the proceedings that Attorney Joseph Notopoulos wrote a letter, which was critical for these CT Page 10881-s proceedings, to Renee Bradley, a member of the court staff. In this letter, he sharply criticized the court and Judge Berman. A copy of this letter was sent to Notopoulos' brother, Philip J. Notopoulos, and to his mother's physician, Julian Parsons. The letter, in part, reads:
However, these obligations in no way run to the personal whims and fancies of an elected town politician, in a lame duck term he cannot even complete, who has clearly prostituted the integrity of his office and is presently running it as a financial spoils system for the cronies he calls his "professional conservators" in brazen violation of Section B of Cannon 2 of the Code of Probate Judicial conduct . . . Having come face-to-face during conservator proceedings with the rampant financial conflicts of interest that presently afflict the West Hartford Probate Court . . . Consequently, the assets of this estate have long ago been placed far beyond the venal and avaricious reach of the House of Berman-Levine . . . It is hardly surprising that Mr. Berman is now some 5 1/2 months derelict in his obligation to execute Form PC-263 and close out this estate given the litany of abuses of his office that this family has been compelled to abide . . . Representative but hardly all-inclusive of these abuses is his reprehensible extortion from the undersigned, without legal authority, of money for his crony Mrs. Levine on January 25, 1999 resorting to threats to impose upon the undersigned a substantial conservator's cash bond or to dispatch a psychiatrist to our residence to examine my mother and bill the estate, giving no consideration to Medicare fraud since that entity would ultimately absorb the bill; his reckless and irresponsible interference with and impairment of the physician-patient relationship through his endorsement of Mrs. Levine's sleazy, financially motivated and medically discredited attacks on my late mother's and my physician who is held in high esteem by his professional peers in the local medical community; his arrogant and contemptuous issuance of a decree in February 1999, which had to be amended at legal expense to this family, granting Mr. Fuller carte blanche authority to terminate my mother's life; and his placement of the financial greed of his cronies above my mother's best interest and welfare with utter contempt for applicable requirements of the Connecticut General Statutes to act in her best interest . . . In this regard, most telling was his opportunistic, cynical and readily transparent exploitation of my late mother, in end of life circumstances with rapidly escalating medical expenses, to fund a private Marshall Plan for the support, care and feeding of his crony Denny Fuller, her court appointed dependent who conferred her with no benefit whatever and contributed absolutely nothing to her medical care but nonetheless managed to line his pockets with more than $3600 of her funds in less than 4 months . . . Because Mr. Berman has become not merely an embarrassment to this community but a demonstrated financial predator of CT Page 10881-t its incapacitated and often dying elderly whose interests he is charged with the protection, in my capacity of a registered West Hartford elector, I am herewith demanding that he submit his resignation immediately rather than wait until compelled to do so by his advanced age that has seemingly impaired his ability to conduct his office with the integrity and competence that this community, including its physicians, may rightfully expect and demand.
Upon receiving this letter from Attorney Joseph Notopoulos, Judge Berman filed a complaint with the statewide grievance committee. That matter was referred to the New Britain/Hartford Judicial District grievance panel. It concluded there was probable cause to believe that Notopoulos violated Rules 3.5, 8.2 and 8.4 of the Rules of Professional Conduct. The matter was then referred to the statewide grievance committee for hearing. This hearing before a reviewing committee of the statewide grievance committee took place on April 3, 2001. At that proceeding, Attorney Notopoulos appeared and presented evidence. Judge Berman did not personally appear. On February 22, 2002 the reviewing committee issued a decision reprimanding Notopoulos. It found, by clear and convincing evidence, that the letter written by Attorney Notopoulos violated rules 8.2(a), 8.4(4), and 3.5(3) of the Rules of Professional Conduct. The decision of the reviewing committee was affirmed by the entire statewide grievance committee on April 18, 2002. On May 6, 2002 Notopoulos appealed this decision to the Superior Court. — We heard oral argument on June 11, 2003.
The committee also considered comments contained in Notopoulos' answer to the grievance complaint, which were similar in content and criticism of the Probate Court and Judge Berman.
"Upon 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 [sic], 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 Book § 2-38(f).
Although the statewide grievance committee is not an administrative agency, ". . . the scope of the court's review of the [statewide grievance committee's] decision is similar to the limited scope of review given to the decision of an administrative body. In reviewing a decision of the statewide grievance committee to issue a reprimand, . . . the CT Page 10881-u trial court [does not] take 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 . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof." (Citations omitted; internal quotation marks omitted.) Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 209, 804 A.2d 1027 (2002); see also Yamin v. Statewide Grievance Committee, 53 Conn. App. 98, 100-01, 728 A.2d 1128 (1999).
I
Notopoulos was reprimanded for violating Rule 8.2(a) of the Rules of Professional Conduct. This rule provides that "[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. Notopoulos argues that the rule does not apply here because he was not acting in a representative capacity when he wrote the letter to Renee Bradley of Judge Berman's court staff. He argues that the rule is inapplicable because he was acting only in a pro se capacity. We conclude otherwise.
"The Rules of Professional Conduct bind attorneys to uphold the law and to act in accordance with high standards in both their personal and professional lives." (Emphasis added.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 450, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001); Statewide Grievance Committee v. Shluger, 230 Conn. 668, 679, 646 A.2d 781 (1994); see Preamble to Rules of Professional Conduct. As long as the rule being applied is not limited, by its terms, to only apply when an attorney is representing a client, it does not matter whether an attorney was acting in a representative capacity or a pro se capacity at the time of the rule violation. Somers v. Statewide Grievance Committee, 245 Conn. 277, 287-89, 715 A.2d 712 (1998); Esposito v. Presnick, 15 Conn. App. 654, 667, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988). "Whether an attorney represents himself or not, his basic obligation to the court as an attorney remains the same. He is an officer of the court no matter who is the client. Disciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers [of the court]and commissioners of the [Superior] court. An CT Page 10881-v attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system. The special relationship between courts and their officers, [i.e.,] those attorneys who practice before them, requires a court to monitor the conduct of those officers of the court. The purpose of such control is to protect the public from the effects of possible future misconduct by an officer of the court. The protection needed is no less necessary because the miscreant behavior occurs while the officer represents himself." (Citations omitted.) In The Matter Of Presnick, 19 Conn. App. 340, 345-46, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). The prohibitions of the rule are applicable whether an attorney is representing a client or acting pro se. Here, the reviewing committee concluded that the statements Notopoulos made about Judge Berman and the probate court were done with reckless disregard for the truth concerning the qualifications or integrity of Judge Berman. This rule does not specify the standard for determining what is "reckless disregard for the truth."
See Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 578 A.2d 1075 (1990).
An attorney is not merely the servant or agent of his client. His oath imposes on him duties and obligations to the court as well as to his client. He is an officer of the court and like the court itself, under a duty to advance the ends of justice. Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 547, 596 A.2d 436, cert. granted in part, CT Page 10881-aa 220 Conn. 929, 598 A.2d 1100 (1991), reversed on other grounds, 222 Conn. 541, 610 A.2d 1260, on remand, 29 Conn. App. 634, 617 A.2d 466 (1992).
The court agrees with the reviewing committee that it is not necessary to find that Notopoulos had "actual malice" against Judge Berman. Therefore, the court does not apply a subjective test, similar to that used when determining whether criticism of a public official would. result in civil or criminal liability. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). An attorney disciplinary proceeding results in neither civil nor criminal liability. It is, therefore, of no consequence whether Notopoulos actually believed that his statements about Judge Berman and the probate court were true.
Although the Supreme Court has not yet addressed this issue, the majority of courts of other jurisdictions apply an objective test in the context of attorney disciplinary procedures. The cases seek to determine what a reasonable attorney would do, or would say, under similar circumstances. See, e.g., In re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn. 1990), cert. denied sub nom Graham v. Weraz, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990); Matter of Westfall, 808 S.W.2d 829 (Mo. en banc 1991), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); In re Evans, 801 F.2d 703 (4th Cir 1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1349, 94 L.Ed.2d 520 (1987); Burton v. Statewide Grievance Committee, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 573377 (September 24, 1998, McWeeny, J.), rev'd and remanded on other grounds, 60 Conn. App. 698, 70 A.2d 1027 (2000). This court concludes that an objective standard applies and the court should look to what a reasonable attorney would do under the circumstances. CT Page 10881-w
The court agrees with the reviewing committee that it is clear that Notopoulos strongly disagreed with the appointments of Carolyn Levine and Denny Fuller as agents of the probate court. It is also clear that he disagreed with actions taken by Levine and Fuller and with their fees. The committee stated that their decision may have been different if Notopoulos had limited his statements to criticism of those issues. Notopoulos, however, personally attacked Judge Berman and the West Hartford Probate Court and ascribed actions and motives to Judge Berman totally unsupported by any evidence. In his letter Notopoulos alleged, amongst other things, that Judge Berman "prostituted the integrity of his office," engaged in "reprehensible extortion" and was a "demonstrated financial predator." These statements directly attacked the integrity of Judge Berman. None of these statements were supported by evidence. There was, therefore, no reasonable basis for making them and no reasonable attorney in these circumstances should have done so. The letter, in pertinent part, was therefore written with reckless disregard for the truth concerning the qualifications and integrity of Judge Berman. The grievance committee had clear and convincing evidence that Notopoulos violated Rule 8.2(a) of the Rules of Professional Conduct.
Such statements may violate Rule 8.2(a) even if not intended to question the court's integrity if they might be construed in that manner. See Evans v. Commissioner of Correction, 37 Conn. App. 672, 676 n. 6, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995); Wendt v. Wendt, 59 Conn. App. 656, 694-97, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000); see also Burton v. Statewide Grievance Committee, 48 Conn. Sup. 94 (2002), aff'd., 79 Conn. App. 364 (2003).
II
Attorney Notopoulos was also reprimanded for violating Rule 8.4(4) of the Rules of Professional Conduct. This rule provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." Case law reveals that the scope of the rule covers a wide range of conduct. Courts in other jurisdictions have found that statements by an attorney that are demeaning to the judiciary, and that violate Rule 8.2(a) of the Rules of Professional Conduct, may also violate Rule 8.4(4). See Matter of Westfall, supra, 808 S.W.2d 829; In re McClellan, 754 N.E.2d 500 (Ind. 2001). This court concludes that there was clear and convincing evidence that the statements by Notopoulos, which attacked the integrity of Judge Berman without any reasonable factual basis, were prejudicial to the administration of justice. The grievance committee, therefore, was correct in concluding that Notopoulos violated Rule 8.4(4).
See, e.g., Daniels v. Statewide Grievance Committee, supra, 72 Conn. App. 203 (failure of lawyer to timely pay personal default judgment that had been rendered against him); Statewide Grievance Committee v. Gifford, 76 Conn. App. 454, 820 A.2d 309 (2003) (failure of lawyer to answer grievance complaint); Statewide Grievance Committee v. Whitney, 227 Conn. 829, 633 A.2d 296 (1993) (refusal of attorney to attend scheduled pretrial conferences); Statewide Grievance Committee v. Fountain, 56 Conn. App. 375, 743 A.2d 647 (2000) (forging and notarizing affidavit by attorney); Statewide Grievance Committee v. Solomon, Superior Court, judicial district of New Haven at Meriden, Docket No. 269373 (Dec. 12, 2000, Levine, J.) (refusal by attorney to record deed until fee was paid); Statewide Grievance Committee v. Timbers, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 152030 (Dec. 18, 1996, Lewis, J.) (although not proven by clear and convincing evidence in this case, repeated failure to pay occupational tax could violate Rule 8.4(d)).
III
Attorney Joseph Notopoulos was further reprimanded for violating Rule 3.5(3) of the Rules of Professional Conduct. This rule provides that "[a] lawyer shall not . . . engage in conduct intended to disrupt a tribunal." Here, the decision by the reviewing committee holds, in conclusory fashion, that Notopoulos violated Rule 3.5(3). It contains no explicit subordinate findings that Notopoulos had the specific intent to CT Page 10881-x disrupt the tribunal. The record is also silent concerning any evidence upon which this finding of Notopoulos' intent can be based. Certainly the record does not contain clear and convincing evidence that, in writing the letter, Notopoulos had an intent to disrupt a "tribunal."
Even though Rules 3.1 through 3.9 of the Rules of Professional Conduct are listed under the heading "Advocate," the rules do not only apply to attorneys acting in a representative capacity, as Notopoulos argues. An attorney may also be an advocate on behalf of his own interests. See Somers v. Statewide Grievance Committee, supra, 245 Conn. 288 n. 16.
Rule 3.5(3) is generally intended to cover disruptive conduct either immediately before, during or after an official proceeding. The ABA/BNA Lawyers' Manual on Professional Conduct catalogues the rule in connection with "courtroom speech and conduct." See American Bar Association/Bureau of National Affairs Lawyers' Manual on Professional Conduct § 61:901-19. Connecticut decisions also support this construction of the rule.
In Prucker v. Statewide Grievance Committee, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 541436 (June 9, 1995, Maloney, J.), aff'd., 41 Conn. App. 906, 675 A.2d 9, cert. denied, 237 Conn. 933, 677 A.2d 1372 (1996), the court found that an attorney had violated Rule 3.5(3) when he shouted an expletive and walked out of an informal workers' compensation hearing. The attorney thought the hearing had concluded but the compensation commissioner testified that the hearing had not finished. However, in Statewide Grievance Committee v. Whitney, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 511142 (August 18, 1992, Maloney, J.) ( 7 Conn.L.Rptr. 215, 7 C.S.C.R. 1029), aff'd., 227 Conn. 829, 633 A.2d 296 (1993), the court held that the refusal of an attorney to attend any pretrial conferences, despite the judge's order to do so, did not violate Rule 3.5(3) because there was no evidence that the attorney intended to disrupt the court. Similarly, in Melnick v. Statewide Grievance Committee, Superior Court, judicial district of Fairfield, Docket No. 319511 (June 26, 1995, Levin, J.), the court held that a letter written by an attorney to a neighbor in connection with a pending grievance complaint did not violate Rule 3.5(3) because there was no intention to disrupt a tribunal. The absence of clear and convincing evidence in this record showing an intent by Notopoulos to disrupt a tribunal and the failure of the grievance committee to make a subordinate finding on the requisite intent requires the court to sustain the appeal concerning any violation of Rule 3.5(3).
IV
Finally, Attorney Notopoulos argues that the statements contained in his letter are absolutely protected by the First Amendment to the United States Constitution. This court disagrees. First Amendment protections are not absolute. Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002). "Although a lawyer does not CT Page 10881-y surrender [his] freedom of expression upon admission to the bar, once admitted, a lawyer must temper [his] criticisms in accordance with professional standards of conduct." (Citations omitted.) Burton v. Statewide Grievance Committee, 48 Conn. Sup. 94 (2002), aff'd., 79 Conn. App. 364 (2003).
In the context of disciplinary proceedings, an attorneys right of free speech must be balanced with the state's interest in preserving the integrity of the judicial system. Id.; see also Burton v. Statewide Grievance Committee, supra, Superior Court, Docket No. 573377. Because lawyers have an intimate knowledge of the legal system, they are perceived as uniquely qualified to evaluate judges. See The Florida Bar v. Ray, 797 So.2d 556, 559-60 (Fla. 2001), cert. denied, 535 U.S. 930, 122 S.Ct. 1302, 152 L.Ed.2d 214 (2002). The public's perception of judges and of the legal system is greatly influenced by the statements and opinions of attorneys who participate in the legal system. The official commentary to Rule 8.2 of the Rules of Professional Conduct provides that ". . . false statements by a lawyer can unfairly undermine public confidence in the administration of justice." Here, the significant state interest in preserving public confidence in the judicial system outweighs the free speech rights of Notopoulos to make reckless accusations about the integrity of a probate judge.
Additionally, as officers of the court, lawyers must comply with stricter standards of conduct than would be expected of non-lawyers. See In re Sawyer, 360 U.S. 622, 646-47, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Stewart, J. concurring). "Judges are not exempt from just criticism, and whenever there is proper ground for serious complaint against a judge it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language and offensive conduct toward the judges, personally, by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted. (Citations omitted.) In re Evans, supra, 801 F.2d 707.
Attorney Notopoulos could have brought his complaints about Judge Berman to the attention of the Council on Probate Judicial Conduct. See General Statutes § 45a-63 et seq. Making reckless accusations in a letter sent to the probate court and to a local physician erodes public confidence in the judiciary and attacks the integrity of the judicial system. An officer of the court is charged with acting in a manner consistent with upholding and preserving public confidence in the judicial system whether the attorney is representing a client or is CT Page 10881-z acting on his own behalf. "False statements, made with reckless disregard for the truth, do not enjoy constitutional protection." (Citations omitted; internal quotation marks omitted.) Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995), cert. denied, 517 U.S. 1223, 116 S.Ct. 1854, 134 L.Ed.2d . 954 (1996); Burton v. Statewide Grievance Committee, supra, 48 Conn. Sup. 94.
The appeal is dismissed as to the decision reprimanding Joseph Notopoulos for violating Rules 8.2(a) and 8.4(4). The appeal is sustained as to Rule 3.5(3) because upon review of the entire record, this court concludes that no violation of Rule 3.5(3) has been proven by clear and convincing evidence.
William P. Murray A judge of the Superior Court