Opinion
No. TTD CV09-4011501-S
July 7, 2009
RULING ON APPLICATION FOR STAY PENDING APPEAL
The Appellant, Sandra Sherlock-White, has, pursuant to Conn. Gen. Stat. § 45a-186(f), moved this court to stay during the pendency of this appeal the order of the Probate Court for the District of Ellington indefinitely suspending the Appellant from practicing law before that court. The propriety of that order is the sole subject of this appeal. The order reads in its entirety:
ORDERED: As a result of egregious impropriety against the Ellington Probate Court, and specifically against the Judge in an attempt to improperly influence the outcome of the conservatorship of Patricia R. Williams in said Court, Sandra Sherlock White is hereby immediately SUSPENDED from practicing law in any matter or case within the jurisdiction of the Ellington Probate Court.
This matter has been forwarded to the Statewide Grievance Committee.
Such suspension shall continue until the grievance process, including any referrals, trials or appeals are completed, or until further order of the Court.
Signed at Vernon, Connecticut this 15th day of June 2009.
The Appellant claims that the Probate Court lacks the authority to issue any such sanction. She further claims that even if the Probate Court has such authority the sanction issued is nevertheless invalid because it was issued without notice or any hearing in violation of her constitutional rights under both the Constitution of the State of Connecticut and the Due Process Clause of the United States Constitution. Finally, she claims that the sanction is unwarranted and excessive under the circumstances. Because the matter that resulted in her suspension is ongoing and scheduled for another hearing before the Probate Court on July 21, 2009, she has asked this court to stay the order of the Probate Court until the merits of her appeal can be addressed.
FACTUAL BACKGROUND
The Appellant filed this appeal and her Application for Stay on June 29, 2009. The court held a hearing on the Application that afternoon at which the Appellant appeared with her counsel. Also present was the Honorable O. James Purnell, who issued the order in question. The facts set forth below were presented by both the Appellant and Judge Purnell at the hearing and are not in dispute.
This appeal arises out of the Appellant's representation of Sherrill Jones, the conservator of Patricia R. Williams, in proceedings before the Probate Court for the District of Ellington. In those proceedings, a motion was made to remove Ms. Jones from that position. A hearing on that motion was held before the Honorable O. James Purnell, III. On or about April 22, 2009, after the above hearing was held but before Judge Purnell ruled on the motion, Ms. Jones sent a letter to Probate Court Administrator, the Honorable Paul Knierim, complaining about Judge Purnell's handling of Ms. Williams' matter. Thereafter, Judge Purnell spoke with Judge Knierim regarding the matter. Subsequent to that conversation, on or about May 4, Ms. Williams' matter was reassigned to the Honorable Peter Jay Alter. In early June, the Appellant filed with the Probate Court a request for payment of legal fees for her representation of Ms. Jones. Although the matter was no longer before Judge Purnell, he reviewed the Appellant's request. In doing so, he saw that between January and April the Appellant had time entries for seven conversations lasting between .3 and .5 hours with Attorney Tom Gaffey, counsel to the Probate Court and one conversation lasting one hour with Judge Knierim. Based on these time entries, Judge Purnell concluded that the Appellant initiated these conversations to "put undue pressure" on Judge Purnell and that the Appellant's actions resulted in him "being forced off the case." Judge Purnell also concluded that the Appellant must have "ghost written" Ms. Jones' letter to Judge Knierim. Based on these conclusions, Judge Purnell issued the order suspending the Appellant and also filed a complaint against the Appellant with the Statewide Grievance Committee.
Although Ms. Williams' matter was reassigned to Judge Alter, it is still a proceeding in the Ellington Probate Court, to which Judge Purnell takes the position that his suspension order still applies. Another hearing in the matter is scheduled for July 21, before Judge Alter. Without a stay being granted, the Appellant will be unable to represent Ms. Jones at that hearing or any future hearings.
LEGAL STANDARD
The court must analyze four factors in determining whether to grant a stay: "(1) the likelihood that the appellant will prevail; (2) the irreparability of the injury to be suffered from immediate implementation of the [probate court's] order; (3) the effect of a stay upon other parties to the proceeding; and (4) the public interest involved." Griffin Hospital v. Commission on Hospital Health Care, 196 Conn. 451, 456-57, 493 A.2d 229 (1985). The decision to grant a stay requires a "balancing of the equities," taking into account these four factors. Id. The application for a stay is left to the "general equitable powers" of the court. Park City Hospital v. Commission on Hospitals Health Care, 210 Conn. 697, 700-01, 556 A.2d 602 (1989).
1. Likelihood of Success
The Appellant raises two legal issues in support of her Application for Stay. First, she claims that the Probate Court lacks any authority to issue an order disciplining an attorney. According to the Appellant, that power is reserved exclusively to the Superior Court under the Connecticut Practice Book, particularly §§ 2-44 and 2-45. In further support of this argument the Appellant notes that probate courts are courts of limited jurisdiction and only have the powers specifically granted them by statute, and that there is no statute authorizing the probate courts to discipline attorneys.
While the Appellant raises an interesting issue regarding a probate court's authority to discipline attorneys who appear before it, an issue that does not appear to have been addressed in Connecticut to date, the Appellant has not demonstrated a likelihood of success on this issue at this stage of the proceedings. In particular, Conn. Gen. Stat. § 51-84 appears to specifically authorize the Probate Court to issue the type of order at issue here. Section 51-84(a) provides "attorneys admitted by the Superior Court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act." (Emphasis added). Section 51-84(b) in turn provides " any such court may fine an attorney for transgressing its rules and order an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause." (Emphasis added). By its express terms, § 51-84 clearly contemplates some level of discipline by courts other than the Superior Court. Further, the discipline imposed by Judge Purnell is precisely what is authorized in the statute. Thus, accepting that the probate court are courts of limited jurisdiction, which they are, the Legislature has expressly authorized them to do what was done here.
The fact that § 51-84 is meant to include the probate courts is also confirmed by the language of § 51-1a which includes the "courts of probate" among the courts within the Judicial Department. Having specifically identified the probate courts among the courts covered by Title 51, one would expect the Legislature to have explicitly excluded them from the grant of authority in § 51-84, had it intended to do so.
Further, our Supreme Court over 100 years ago interpreted the exact statutory language that currently appears in § 51-84 broadly as applying to any court. In Fairfield County Bar v. Taylor, 60 Conn. 11, 12, 22 A. 441 (1891), after noting that only the Superior Court has the power to admit attorneys to the practice of law and hence the power of "total suspension or displacement," the Court stated "[a]ny other court than the Superior Court may fine an attorney for transgressing its rules and doubtless has the power to forbid him from appearing before it." There is nothing in any court decision to suggest that this principle does not apply to a court of limited jurisdiction where the legislature has expressly granted such authority to act.
The Appellant points out the Appellate Court drew a distinction between the authority of constitutional courts and courts of limited jurisdiction in In the Matter of Daniel V. Presnick, 19 Conn.App. 340, 563 A.2d 299 (1989). Based on this distinction, the Appellant argues that while other constitutional courts besides the Superior Court may discipline attorneys that appear before them, courts of limited jurisdiction, like the probate courts, may not. The Appellant misreads Presnick. The court there held that only constitutional courts have the inherent power to discipline attorneys who appear before them. The Probate Court's order here is not based on any claim of inherent power though. As noted above, this court believes that § 51-84 constitutes an explicit grant of authority to all courts, including the probate courts.
The court's conclusion is also supported by how some Superior Courts have interpreted Conn. Gen. Stat. § 51-33. That statute provides that "any court" has the power to punish contemptuous behavior that occurs before it. Section 51-33 has been interpreted as applying to probate courts. See, e.g., Boyd v. Gale, 2004 Conn.Super. LEXIS 3527 (Conn.Super.Ct. Nov. 30, 2004) (Riley, J.); Bellonto v. Richardson, 1990 Ct.Sup. LOIS 3155 (Conn.Super.Ct. Oct. 24, 1990) (Higgins, J). There is no reason to believe that the Legislature intended the reference to "any court" in § 51-33 to be construed more broadly than the reference to "any such court" in § 51-84. The court believes that both references are meant to include the courts of probate.
For these reasons, the Appellant has not demonstrated a likelihood of success on this issue It appears clear that Judge Purnell had the authority to issue the order in dispute.
The Appellant's second argument is that Judge Purnell's order is invalid and must be set aside because it was issued without due process of law. The law is clear that "[b]ecause a license to practice law is a vested property interest and disciplinary proceedings are `adversary proceedings of a quasi-criminal nature,' an attorney subject to discipline is entitled to due process of law.'" Burton v. Mottolese, 267 Conn. 1, 19, 835 A.2d 998 (2003), quoting, Kucej v. Statewide Grievance Committee, 239 Conn. 449, 462, 686 A.2d 110 (1996), cert. denied, 520 U.S. 1276 (1997). This right to due process attaches even when the proposed discipline involves a temporary suspension to practice before a single court. Presnick, supra, 351. Due process is a flexible concept and the amount of process required will vary depending on the circumstances. Burton, supra, 20. Despite this flexibility, "[t]o satisfy the requirements of due process, attorneys subject to disciplinary action must receive notice of the charges against them." Id. Further, such notice must be given before the disciplinary proceedings commence. Id., 21. The notice must be sufficiently intelligible as to advise the attorney of the accusations or allegations that she must be prepared to meet. Thaiheini v. Greenwich, 256 Conn. 628, 649-50, 775 A.2d 947 (2001).
In addition to notice, "ordinarily due process would require that a hearing be held before sanctions can be imposed." Presnick, supra, 351; Briggs v. McWeeny, 260 Conn. 296, 318, 796 A.2d 516 (2002). While due process does not always require that the hearing be an evidentiary one, there is a right to such a hearing where there are contested factual issues to be resolved. Presnick, supra, 351.
In this case, while there is a factual dispute between the Appellant and the Probate Court regarding the underlying basis for any sanction, there is no dispute regarding the process, or lack thereof, employed by the Probate Court before sanctioning the Appellant. The Appellant was provided with no notice of a possible sanction by the Probate Court. She was not informed of the nature of the charges against her. She was not provided with any opportunity to respond to Judge Purnell's suspicions.
Nor was any evidentiary hearing conducted by Judge Purnell. Instead, Judge Purnell based his decision to suspend the Appellant on inferences he drew from reading the letter Ms. Jones sent to Judge Knierim, his conversation with Judge Knierim and the Appellant's time records. Based on his consideration of these extrajudicial materials, Judge Purnell concluded that the Appellant had improperly attempted to influence or affect the outcome of the proceedings before him.
Based on the admitted lack of process here before suspending the Appellant, the court concludes that there is a substantial likelihood that the Appellant will prevail on this issue. She was entitled to notice of the nature of the charges against her and the possible sanctions she faced before any such sanctions were imposed. She received none. Further, given that she disputes Judge Purnell's conclusion that she was attempting to improperly influence or affect the outcome of the matter, she was entitled to an evidentiary hearing before any sanction was imposed. This is not a case where an attorney is alleged to have misbehaved in front of the judge. Nor is it a case, like Presnick, where there is no factual dispute regarding the attorney's conduct. In this case, Judge Purnell reached his conclusion only by piecing together information he received outside of the courtroom from a variety of sources. The Appellant had a right to challenge both the quality of that information and the inferences Judge Purnell drew from it before she was sanctioned. In addition, she had a right to present her own evidence in her defense. By issuing his order in the manner he did, it appears to the court that Judge Purnell deprived the Appellant of her due process rights.
2. Irreaparability of Harm
Having found that the Appellant is likely to prevail on the merits of her appeal, the court now turns to the issue of irreparable harm. The court concludes that the harm to the Appellant of an immediate suspension would be irreparable. First, if the suspension remains in effect the Appellant will be precluded from representing her client at the July 21, hearing before Judge Alter and any future proceedings in the matter. The Appellant testified at the June 29, hearing that she is the only counsel of record for Ms. Jones, and has been so since January of this year. Given the indefinite nature of the suspension order, if the suspension remains in place the Appellant's relationship with her client will be interrupted and perhaps destroyed. A final determination in the Appellant's favor months or years from now can not undo such damage.
Second, there are numerous collateral consequences to an attorney who is under an order of suspension. The Appellant is admitted not only in Connecticut, but also in Massachusetts. She is a member in good standing in both jurisdictions and has never been subject to discipline proceedings in either jurisdiction. A suspension by a Connecticut court will likely need to be reported in Massachusetts, as well as in any other jurisdiction where the Appellant seeks to practice. Certainly, if the Appellant were to apply for pro hac vice admission in another court she would have to disclose the suspension order, which could affect that court's consideration of her application.
Third, an attorney's reputation and good standing are vital to her ability to earn a living. An order of suspension will, while in place, in all likelihood negatively impact the attorney's practice. Such damage cannot be undone if the attorney prevails months or years later in challenging the suspension.
3. The Effect of A Stay on Other Parties
In addition to considering any harm to the Appellant from not granting a stay, the court must also consider the harm to others resulting from its decision. First, failure to grant a stay will have significant negative consequences for the Appellant's client, Ms. Jones. As noted above, the indefinite nature of the suspension order will interrupt and possibly destroy the attorney client relationship between Ms. Jones and the Appellant. Ms. Jones would be required to retain new counsel who would have to be brought up to speed. Doing so would involve a substantial additional expense and probably a delay in resolution of the matters pending before the Probate Court. This loss of time and money cannot be recovered if the suspension order is later set aside.
The billing records reviewed by Judge Purnell which he used in part to support his order of suspension show that the Appellant has billed approximately $35,000 on this matter since January 2009.
On the other hand, the court finds that there is nobody who is likely to be negatively effected by a stay. To the extent that discipline of the Appellant is necessary to compel compliance with the Probate Court's rules and orders it can be achieved through the grievance proceeding instituted by Judge Purnell and after a full consideration of the merits of this appeal. Immediate invocation of the suspension order is not necessary to vindicate the court. This is particularly true given that Judge Purnell acknowledged at the June 29, hearing that he has never had an issue with the Appellant in any other matter and that the Appellant has no history of bad behavior before the Probate Court or any other court. Further, given that the probate proceedings will now proceed before Judge Alter there is no danger of further conflicts or disputes between the Appellant and Judge Purnell.
4. Public Interest Involved
The final factor to be considered under Griffin is the public interest in immediately enforcing the Probate Court's order. The public obviously has an interest in ensuring that its courts are operated fairly and without undue or improper influence. Thus, to the extent that there is a danger that the Appellant will engage in any such improper conduct during the pendency of this appeal, this factor would mitigate against granting the stay. The facts here do not suggest any such danger. First, because the Probate Court did not conduct a factual hearing before issuing its suspension order, the court cannot say whether there was a sound factual basis for Judge Purnell's conclusion that the Appellant improperly attempted to affect the outcome of the matter before him. Second, given that there is no evidence that the Appellant has ever been accused of engaging in such conduct at any other time during her 28 years in practice the court does not believe that the danger of such conduct happening in the future is very great. Further, given that the suspension order is limited to the Ellington Probate Court any protection of the public or courts, to the extent it is needed, is limited in nature. Overall, the court sees little or no public interest harmed by granting a stay.
CONCLUSION
Balancing all of the above factors and considering the equities of this matter, the court concludes that the Appellant is entitled to a stay of the Probate Court's suspension order pending final resolution of this appeal. The substantial likelihood that the Appellant will prevail on her due process claim and the irreparable harm that will be felt by the Appellant and her client if a stay is not issued far outweigh any possible negative consequences of granting the stay. The Appellant's Application is granted and the suspension order of the Probate Court is stayed pending final resolution of this appeal.