Opinion
No. DBD CV03-0351055 S
December 17, 2007
MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER
The complainant has filed a motion for protective order seeking to preclude the respondent from taking the depositions of various witnesses relative to a presentment hearing for attorney discipline scheduled for February 26, 2008. The complainant contends that no prehearing discovery is available to the respondent outside of the provisions of Chapter 2 of the Practice Book because an attorney disciplinary proceeding is neither a civil or criminal matter, and is in fact sui generis. The respondent has filed an objection to the motion in which she contends that such discovery is not strictly prohibited by court rule and that due process demands that she be allowed to conduct such discovery. The motion and objection were heard by the court on December 10, 2007. For the reasons set forth below, the court grants the motion for protective order and overrules the objection thereto.
I PROCEDURAL BACKGROUND
The present action is an attorney disciplinary proceeding brought by the complainant for the presentment of the respondent relative to violations of rules 8.2(a) and 8.4(4) of the Rules of Professional Conduct, The underlying allegations of the presentment are that the respondent wrote to the Chief Justice of the Connecticut Supreme Court and accused several Superior Court judges of conducting themselves "in a manner presenting the stark appearance of judicial corruption" and asked that they be investigated. After the Supreme Court declined to invoke its investigatory powers, the respondent again wrote to the Chief Justice repeating her allegations. Based on those allegations, letters complaining of the respondent's conduct were sent to the statewide grievance committee. In turn, the matter was referred to the Fairfield County grievance panel which found probable cause for the respondent's violation of the Rules of Professional Conduct. The matter was then brought to the statewide grievance committee which elected to pursue a presentment of the respondent to the Superior Court pursuant to Practice Book § 2-47 et seq.
No formal grievance complaint was filed by any judge. It was the Fairfield County grievance panel which investigated the case and filed its own complaint. Thus it is the Fairfield County grievance panel which is the nominal complainant rather than any of the judges.
The respondent has been, and remains, disbarred by the court due to a prior presentment. See Burton v. Mottolese, 267 Conn. 1, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073 (2004). This proceeding is separate and apart from the prior action of the court. For a detailed procedural history of this matter including appeals to the Appellate and Supreme Courts, see, Statewide Grievance Committee v. Burton, 282 Conn. 1, 917 A.2d 1 (2007).
Prior to proceeding on a presentment hearing, the court (Mintz, J.) dismissed the matter, sua sponte, finding that since the respondent had been previously disbarred, the court could not grant any practical relief and therefore lacked jurisdiction over the matter. (See footnote 2 below.) That ruling was overturned on appeal by the Supreme Court in Statewide Grievance Committee v. Burton, 282 Conn. 1, 917 A.2d 1 (2007), which ordered the matter remanded to this court for the purpose of conducting the presentment hearing.
Following the remand of the presentment in this court, the respondent issued notices of deposition to six individuals, four of whom are, or were, Superior Court judges. In light of the respondent's issuance of the notices of deposition, the complainant has moved the court to issue a protective order to prevent the depositions from taking place.
The respondent issued notices of deposition, one each to the Hon. Socrates H. Mihalakos, Hon. Howard J. Moraghan, Hon. A. William Mottolese, retired judge Robert Fuller, and statewide bar counsel Michael Bowler. The respondent sent three separate notices to the Hon. Edward F. Stodolink. As a pro se party, she has also sought pursuant to Practice Book § 7-19 subpoenas to he issued by the court to compel the attendance of each deponent at the noticed deposition. No action has been taken on the issue of those applications pending the resolution of the instant motion.
III DISCUSSION
The power to discipline attorneys is explicitly set forth in Practice Book § 2-44 which states that "[t]he superior court may, for just cause, suspend or disbar attorneys and may, for just cause, punish or restrain any person engaged in the unauthorized practice of law." In addition to specific rules, "[t]he Superior Court possesses inherent authority to regulate attorney conduct and to discipline members of the bar." Massameno v. Statewide Grievance Committee, 234 Conn. 539, 553, 663 A.2d 317 (1995); see also Practice Book § 2-45 (acknowledging the inherent power of the court to regulate attorney misconduct).
Presentments to the superior court are specifically addressed by Practice Book § 2-47. In part, § 2-47(a) states that presentments "shall be made by written complaint of the disciplinary counsel. Service of the complaint shall be made as in civil actions." A hearing is to be held on such a complaint at which "the respondent shall have the right to be heard in his or her own defense and by witnesses and counsel." Practice Book § 2-47(a). While service of the complaint is to be made as in civil actions, the Practice Book does not authorize discovery at any stage of the proceedings except for the limited purpose of allowing the discovery of information in the disciplinary counsel's complaint file. Practice Book § 2-34A(b)(3). "The proceeding to disbar . . . an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court . . ." (Internal quotation marks omitted; citation omitted.) Burton v. Mottolese, 267 Conn. 1, 26, 835 A.2d 998, cert. denied, 541 U.S. 1073 (2004). Neither party disputes that discovery is allowed in civil matters and to a limited extent in criminal matters under Practice Book Chapters 13 and 40, respectively. However, because a presentment is neither a civil or criminal matter, Chapters 13 and 40 are inapplicable. Rather, a presentment proceeding is specifically governed by Chapter 2 of the Practice Book.
For the statutory authority regarding presentments by the statewide grievance committee, reference is made to General Statutes § 51-90.
As noted above, attorney discipline matters are considered to be sui generis. Burton v. Mottolese, supra. Because "disciplinary proceedings are adversary proceedings of a quasi-criminal nature, an attorney subject to discipline is entitled to due process of law." (Internal quotation marks omitted.) Id., 19. "Procedural due process is a required constitutional right adhering to those attorneys who are subject to disciplinary action so that they are not unjustly deprived of their reputations or livelihoods . . . A defendant attorney is entitled to notice of the charges and a fair hearing." (Citation omitted.) Statewide Grievance Committee v. Gifford, 76 Conn.App. 454, 461, 820 A.2d 309 (2003). "In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination in the exercise of sound judicial discretion, of the questions at issue . . ." (Citation omitted.) Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991).
Even though a presentment is an adversarial proceeding of a quasi-criminal nature, there is no constitutional right to pre-hearing discovery. Pet v. Dept. of Health Services, 207 Conn. 346, 356, 542 A.2d 672 (1988). In Pet, our Supreme Court addressed the issue of pre-hearing discovery in a de-licensing proceeding. "It is well settled that parties to judicial or quasi-judicial proceedings are not entitled to pre-trial discovery as a matter of constitutional right." Id. While Pet was decided in the context of the application of the Uniform Administrative Procedure Act, its logic and analysis is applicable to the present procedure where sanctions such as disbarment (i.e., licensing issues) are governed by specific rules set by our courts for the administration and oversight of attorneys admitted to practice within our jurisdiction. This authority is acknowledged and referenced in the Rules of Professional Conduct, which state in part: "The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts." (Emphasis added.) Rules of Professional Conduct, Preamble: A Lawyer's Responsibilities. The court's authority referenced in the Preamble is embodied in part in the rules set forth in Chapter 2 of the Practice Book.
There is no doubt that the respondent is entitled to procedural due process ensuring a fair hearing. Statewide Grievance Committee v. Gifford, supra, 76 Conn.App. 462. That right is safeguarded by the procedures set forth in Practice Book § 2-47(a) which preserves the respondent's right to be heard, to present witnesses on her own behalf, and to be represented by counsel. Such procedures exceed the minimal procedural safeguards mandated by due process. The respondent has argued that without discovery prior to a hearing, such a hearing would fail to comply with the due process requirements of the law. She notes that other states have allowed discovery in disciplinary proceedings and that there is nothing in the Connecticut court rules which prohibit discovery. While there are other states that allow general discovery in such circumstances, the respondent has not cited a single case in this state which has allowed a respondent in a disciplinary proceeding to do so. This court could find no Connecticut Superior or Appellate Court authority to support the respondent's proposition, and will not act as a Superior Court rules committee of one and carve out a rule allowing such discovery where none exists. The respondent is correct that there is nothing in the rules that explicitly prohibits such discovery. However, the issue of discovery in disciplinary matters has been addressed in § 2-34A(b)(3). By addressing the issue, the rules implicitly establish a parameter for, or limit to, the extent of such discovery in attorney disciplinary proceedings. Beyond that limit the court cannot extend the scope of discovery despite the absence of explicit language in the rules prohibiting it from doing so. It is axiomatic that the language of the rules must be given their plain meaning and followed until such time as they are either amended by a vote of the judges of this state, or, the issue now before the court has been directly addressed by our appellate courts.
Respondent has cited Middlesex County Ethics Comm. v. Garden State Bar Ass'n., 457 US. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (interpreting New Jersey law); In re Fletcher, 424 F.3d 783 (8th Cir. 2005) (Missouri law); Squire v. Coughlan, 469 F.3d 551 (6th Cir. 2006) (Ohio Rules of Civil Procedure). Other states have taken the opposite view: Cooper v. Board of Medical Examiners, 49 Cal.App.3d 931, 943, 123 Cal.Rptr. 563 (1975); Hanlon v. Board of Education of the Parkway School District, 695 S.W.2d 930, 933 (Mo.App. 1985); Marshall v. State Board for Professional Medical Conduct, 73 App.Div.2d 798, 799, 423 N.Y.S.2d 721 (1979).
The rules of statutory construction apply equally to statutes and rules of practice. Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).
III CONCLUSION
There is no right to general pre-hearing discovery such as that conducted through a deposition in attorney disciplinary matters. Chapter 2 of the Practice Book sets forth the limit of discovery available in such proceedings. The safeguards set out in that Chapter for the opportunity to be heard, the presentation of witnesses, the respondent's representation by counsel, and the disclosure of the complainant's file, are sufficient to meet the due process requirements of the law. Accordingly, the motion for protective order seeking to preclude the deposition of the witnesses is granted.