Opinion
No. HHB CV 10 6009737
September 30, 2011
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiff Michael Peck brings this action against David Glucksman and the Statewide Grievance Committee for a declaratory judgment. In his prayer for relief, the plaintiff asks this court to declare that the Statewide Grievance Committee violated his rights and exceeded its statutory and constitutional authority in its determination of the outcome of a grievance against him. The defendant Statewide Grievance Committee has filed a Motion for Summary Judgment (#107) asserting that there are no facts in dispute and that the defendants in this case are entitled to judgment in their favor as a matter of law. The plaintiff agrees that there are no material facts in dispute and has filed his own Motion for Summary Judgment (#115) claiming entitlement to judgment in his favor based on the applicable law.
STANDARDS FOR SUMMARY JUDGMENT
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the movant is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
THE LAW OF ATTORNEY GRIEVANCE PROCEEDINGS
The law of attorney grievance proceedings is governed in Connecticut by the Connecticut Practice Book §§ 2-19 thorough 2-65, enacted by the judges of the Connecticut Superior Court pursuant to their rulemaking power. When a complaint alleging certain kinds of attorney misconduct is filed, the complaint is first referred to a grievance panel in the judicial district in which the respondent attorney maintains his principal office, Conn. P.B. § 2-32(a)(1). That panel investigates the complaint, 2-32(f), and may conduct a hearing, 2-32(h), to determine whether probable cause exists that the respondent attorney is guilty of misconduct. If the panel finds that probable cause exists, the panel refers the matter to the Statewide Grievance Committee for further action. Conn. P.B. § 2-32(i). Such a finding of probable cause becomes a matter of public record, regardless of any further action by the Statewide Grievance Committee. Conn. P.B. § 2-32(k).
Upon receipt of a probable cause finding from a local grievance panel, the Statewide Grievance Committee assigns the case to a Reviewing Committee composed of members of the Statewide Grievance Committee. Conn. P.B. § 2-35(a). The Reviewing Committee holds a hearing on the complaint, 2-35(c). The hearing is public and on the record. The complaint is pursued by Disciplinary Counsel, and the respondent attorney is entitled to be represented by counsel. They are allowed to present evidence, examine and cross-examine witnesses, and offer a closing statement. Conn. P.B. § 2-35(d).
The Reviewing Committee must then render a written decision. The Reviewing Committee may dismiss the complaint, impose sanctions and conditions as authorized by § 2-37, or direct disciplinary counsel to file a presentment against the respondent attorney with the Superior Court. Among the sanctions authorized under Conn. P.B. § 2-37 are reprimand; restitution; assessment of costs; an order that the respondent return the client's file; and various sanctions associated with attending legal education, resolving fee disputes, monitoring the respondent's office accounting practices, and undertaking treatment for health issues. Notice of a reprimand shall be published in the Connecticut Law Journal. Conn. P.B. § 2-54.
A respondent attorney may appeal to the Superior Court a decision of a Reviewing Committee imposing sanctions, provided s/he first requests a review by the entire Statewide Grievance Committee. Conn. P.B. § 2-38(a). There is no provision for appealing a Reviewing Committee's decision to dismiss a complaint or direct a presentment.
All records related to a grievance proceeding in which a local panel has found probable cause are public records, whether or not the complaint is subsequently dismissed. Conn. P.B. § 2-50(c).
THE FACTS
David Glucksman was a landlord involved in a dispute with Geraldine Ficarra, his former tenant and a law partner of Michael Peck, over the return of a security deposit. Peck undertook to represent Ficarra in a small claims action to recoup Ficarra's security deposit from Glucksman. During the course of this representation, Peck sent Glucksman several emails. Glucksman considered the emails to be unprofessional, disrespectful and inflammatory. On February 1, 2010, Glucksman filed an attorney grievance against Peck. On April 20, 2010, the Middlesex Judicial District Grievance Panel found probable cause that Peck had violated Rules 8.4(1) and 8.4(4) of the Rules of Professional Conduct. The probable cause finding of the Middlesex Grievance Panel triggered a hearing before a Reviewing Committee of the Statewide Grievance Committee, pursuant to Conn. P.B. § 2-35. That hearing was conducted on August 20, 2010. An Assistant Disciplinary Counsel pursued the matter. Peck was represented by counsel. Peck and Glucksman both testified.
Rule 8.4 provides: "It is professional misconduct for a lawyer to (1) [v]iolate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; [and] (4) [e]ngage in conduct that is prejudicial to the administration of justice . . ."
The Reviewing Committee of the Statewide Grievance Committee rendered its written decision on September 17, 2010. The Reviewing Committee criticized Peck's conduct in sending the offensive emails to Glucksman. The text of the opinion makes note of Peck's lack of professionalism, maturity and judgment. The Reviewing Committee concluded, however, that the record did not support a finding by the requisite standard of proof that Peck had engaged in conduct prejudicial to the administration of justice, under Rules of Prof. Cond. 8.4(4) nor that he had violated any other of the Rules of Professional Conduct under 8.4(1).
It is the final sentence of the written decision that gives rise to the plaintiff's claims in this lawsuit. It reads, "For all of the foregoing reasons, this reviewing Committee dismisses the complainant (sic) with the criticism noted."
THE CLAIMS OF THE PARTIES
The plaintiff claims that the phrase used by the Reviewing Committee in dismissing the complaint constitutes an expansion of the type of dispositions available in attorney grievance matters beyond that prescribed by the Connecticut Practice Book. The plaintiff points to Connecticut law regarding judicial discipline, which permits, among other dispositions, an admonishment recommending a change in the jurist's behavior. Such a disposition is permitted in the event the Judicial Review Council finds that the jurist has not engaged in proscribed conduct but has acted in a manner that gives the appearance of impropriety or that constitutes an unfavorable judicial practice. Conn. Gen. Stat. § 51-51l(b). The plaintiff argues that this is essentially what the Statewide Grievance Committee decided to do in the plaintiff's case, but that unlike the authority of the Judicial Review Council, there is no statute or rule that permits the Statewide Grievance Committee to do so. He argues that he has been harmed and his rights have been infringed as a result. His claim is that a declaratory judgment can cure this harm.
The defendant claims that this is a wilful misreading of the disposition of the Reviewing Committee. The defendant has filed an affidavit of Michael Bowler, Statewide Bar Counsel, whose role is to act as legal adviser to the Statewide Grievance Committee in lawyer discipline matters, who states that the disposition in this case is treated in all respects as a dismissal. Though the records of the proceeding remain a matter of public record pursuant to the Practice Book rules, the records were not and will not be published by the disciplinary authorities. The affidavit states that if any member of the public were to make an inquiry to the office of Statewide Bar Counsel or the office of Disciplinary Counsel about Peck's disciplinary history relative to this matter, the offices would respond that the matter had been dismissed.
ANALYSIS
The plaintiff claims that the Statewide Grievance Committee has exceeded the scope of its authority in his case by crafting an intermediate sanction — a dismissal with criticism — and characterizes it as "a new non-reviewable sanction." Plaintiff's Brief on Summary Judgment (#116), page 10. At the end of its written decision explaining in detail why his conduct was unprofessional but why it did not rise to a rules violation, the Committee dismissed the complaint. To be sure, the Committee used the phrase "[dismissed] with the criticism noted," but this is no different syntactically from the often used phrase "for the reasons stated above," or "for all the foregoing reasons," or the like. Indeed the text of the written decision criticizes his conduct. But aside from the plaintiff's subjective concern that this dismissal will somehow be treated differently from any other dismissal issued by the Statewide Grievance Committee, there has been absolutely no showing that it is any different. To the contrary, the Bowler affidavit demonstrates that the Committee's decision is in all respects a dismissal like any other.
The plaintiff maintains that his constitutional rights have been trampled by the explanation and unfavorable analysis of his conduct in the written decision. He cites cases holding that a lawyer has interests of constitutional magnitude to practice one's profession and preserve one's reputation, such that those rights cannot be infringed without due process of law. This court agrees. But he has provided no persuasive analysis of how the current disciplinary scheme in general, and the dismissal of this grievance in particular, infringed on those rights.
For example, the plaintiff cites the case of Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 578 A.2d 1075 (1990) for the proposition that due process requires that any attorney who receives a sanction ordered by the Statewide Grievance Committee must be afforded a right to judicial review of that sanction. Likewise with the case of Daniels v. Statewide Grievance Committee, a Superior Court case NNH CV00 0437413, 2000 Ct.Sup. 11113, 28 Conn. L. Rep. 106 (Sept. 12, 2000), the court found that the attorney's rights were implicated when the Statewide Grievance Committee found no attorney misconduct under the rules, but nonetheless ordered the sanction of restitution. In determining that the attorney had standing to challenge the sanction, the court held that the imposition of a sanction without a proper finding of liability violated "fundamental legal principles, and, arguably, fundamental constitutional principles as well."
But despite the plaintiff's attempt to characterize it otherwise, no sanction was ordered here. The attorney grievance rules provide a comprehensive set of procedures that balance the protection of the public from attorney misconduct and the protection of attorneys from untoward complaints and unfair discipline. As part of that regulatory scheme, the rules permit the Superior Court to hear appeals from decisions imposing sanctions and to preside over presentments. The rules do not permit the Superior Court to edit or rewrite the text of dismissed grievance decisions to ameliorate an attorney's embarrassment. Nor does the attorney have any statutory or constitutional right to such an intervention. The plaintiff was afforded due process. The defendant followed all appropriate procedures and imposed no sanction or discipline whatsoever on the plaintiff. Though the plaintiff is stung by the criticism of his conduct in the written decision, the outcome, despite his attempt to characterize it otherwise, has been a dismissal of the grievance against him.
The court finds that the undisputed facts are that the grievance against the plaintiff was dismissed, that no reprimand or lesser sanction of any kind was issued against him, and that the dismissal has been and will be treated as all other dismissals are treated. That being the case, the defendant is entitled to judgment as a matter of law. Ordinarily, such a holding would mean that the defendant's Motion for Summary Judgment would be granted and the plaintiff's Motion for Summary Judgment would be denied. However the court must discuss one further aspect of this case in determining the form of the judgment that must enter.
JUSTICIABILITY OF THIS CONTROVERSY
The defendant raises the issue of justiciability, arguing that this court has no subject matter jurisdiction because the matter terminated in the plaintiff's favor before the Statewide Grievance Committee. The plaintiff responds that the issue of justiciability has already been determined earlier in this case, when a Motion to Dismiss, premised on non-justiciability, was filed and denied (Rittenband, J.). The plaintiff argues that that decision on the Motion to Dismiss is now the law of the case and should not be revisited.
It is true that an earlier decision by one jurist ought not ordinarily be reversed by another jurist later in the case. This court declines to follow that rule here for three reasons. First, the decision involves subject matter jurisdiction, which continues to implicate the ability of this court to act on the plaintiff's complaint at every phase of this case. Second, it affects the form of the judgment in this matter: that is, a judgment on the merits for the defendant, as the court explains above, as opposed to a judgment of dismissal for lack of subject matter jurisdiction. Third, this court is of the view that the earlier point was incorrectly decided. While a judge should be hesitant to revisit or overturn the decision of another judge in the same case, the subsequent judge may do so if the subsequent judge "becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed . . ." Breen v. Phelps, 186 Conn. 86, 98-99, 100, 439 A.2d 1066 (1982). That is the case here.
The determination of the standards for justiciability are well-settled in Connecticut.
Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . .; (2) that the interests of the parties be adverse . . .; (3) that the matter in controversy be capable of being adjudicated by judicial power . . .; and (4) that the determination of the controversy will result in practical relief to the complainant. (Citations omitted.)
CT Page 20776 Pellegrino v. O'Neill, 193 Conn. 670, 674, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83 L.Ed.2d 176 (1984). The third and fourth criteria — that the matter is capable of being adjudicated and that the court can grant practical relief to the plaintiff — are both lacking in this controversy. As described above, the grievance was dismissed at the administrative level, terminating in the plaintiff's favor, and there is nothing more the court can do for the plaintiff.
A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction. Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).
CONCLUSION
The motions for summary judgment demonstrate that there are no material facts in dispute in this matter, and that the plaintiff cannot prevail on any of his claims. They also demonstrate that this court has no subject matter jurisdiction regarding this controversy. Accordingly this matter is dismissed as to all parties.