Opinion
No. CV 01-0807173S
July 9, 2003
MEMORANDUM OF DECISION
The Statewide Grievance Committee brought this Application for Reciprocal Discipline, pursuant to Practice Book § 2-39, following notice of the respondent's suspension from the practice of law in the state of Rhode Island for sixty (60) days commencing April 13, 2001. The petitioner subsequently filed an amended application notifying the court that on June 19, 2001, the Rhode Island Supreme Court suspended the respondent indefinitely from the practice of law in that state pending resolution of all disciplinary matters against him. Certified copies of the suspension orders issued by the Rhode Island Supreme Court were appended to the original and amended applications and filed with the court in accordance with § 2-39 (a). Hearings were held on the application on October 23, 2001, November 13, 2001, December 3, 2001, and March 4, 2002. Based on the full exhibits and the testimony of the respondent, the court found that the respondent failed to establish by clear and convincing evidence any defense to the petitioner's application. A decision was then issued by the court on May 7, 2002, placing the respondent under the supervision of the court for a period of eighteen months. Pursuant to the order, the respondent was required to meet the following conditions:
The relevant version of Practice Book § 2-39(c) provides in pertinent part as follows:
After hearing, the court shall take commensurate action unless it is found that any defense set forth in the answer has been established by clear and convincing evidence.
In fact, when the respondent appeared on October 23, 2001, he had not filed an answer to the application despite the language of § 2-39 (c) mandating the court to "take commensurate action" unless a defense set forth in "the answer" is established by "clear and convincing evidence." There was no answer filed to the original application. An answer to the amended application was filed only after the court read the pertinent language of § 2-39 (c) to the respondent in open court and insisted that he file an answer prior to proceeding with the hearing if he wished to defend against the application.
(1) register, attend and complete a course on the subject of professional ethics with a minimum grade of "B" or the academic equivalent, in each course, administered by an approved law school. The law school as well as the content of the course must also be preapproved by counsel for the petitioner. Alternatively, the respondent is allowed to substitute an approved bar review course on legal ethics if he immediately upon completion and within the eighteen (18) month period of court supervision, takes and passes the MPRE (Multistate Professional Responsibility Examination). The courses in question must be completed prior to the conclusion of the eighteen (18) month period;
(2) register, attend and complete a course on the subject of law office management administered by an approved law school. The law school as well as the content of the course must also be preapproved by counsel for the petitioner. Alternatively, the respondent may substitute 6.0 hours of continuing legal education credit on the subject of law office management and 6.0 of continuing legal education credit on the subject of professional ethics for a total of 12.0 hours of continuing legal education credits. The 6.0 hours of continuing legal education on the subject of law office management must include all day (8:30 am. 4:45 p.m.) attendance at the CT Bar Institute, Inc., program offered on Friday, June 14, 2002, at the CBA Law Center, 30 Bank Street, New Britain, CT, entitled, "Law Office Risk Management." The courses in question must be completed prior to the conclusion of the eighteen (18) month period;
(3) cooperate with any and all pending or newly filed disciplinary proceedings in any jurisdiction as well as any discipline imposed in connection therewith;
(4) accept and comply with the supervision of Ronald F. Stevens, Esq., Stevens, Harris Guernsey, P.C., 351 Main Street, Niantic, Connecticut 06357; telephone (860) 739-6908, who is hereby appointed by the court to serve as a mentor for the respondent for a nine (9) month period commencing June 1, 2002. During the mentor period, the respondent is to present Attorney Stevens with a list of all cases in which he has appeared as counsel as of June 1, 2002, pending in the courts of the state of Connecticut. For each case, the respondent is to provide a brief status report which is to include the name, address and telephone number of the court in which the case is pending as well as the names, addresses and telephone numbers of all appearing counsel. These files shall be subject to periodic inspection by Attorney Stevens who will report to the court at ninety (90) day intervals during the nine (9) month period, or more frequently as circumstances may require, for the purpose of determining whether the respondent is in compliance with the applicable provisions of the Practice Book, including but not limited to chapters 4, 10, 11, 13, 14, 16, 17, 36-44, as well as the rules of professional conduct. Since this is a mentor relationship, it is expected that any guidance offered by Attorney Stevens concerning compliance with the Practice Book or the rules of professional conduct will be followed.
The court also issued the following caveat to its order:
If at any time during the interim eighteen (18) month period, the court finds, after a hearing, that the respondent is not in full compliance with the foregoing terms, or not fully cooperating with Attorney Stevens, a final disciplinary hearing shall be commenced.
Pursuant to the foregoing caveat and following the first interim report, dated August 14, 2003, submitted by the court-appointed mentor, on September 12, 2002, the court issued a supplemental order which stated in pertinent part as follows:
The court has received and reviewed the interim report of the court-appointed mentor, Ronald F. Stevens, Esq. based on this review, it appears that respondent persistently fails to appear in court on time to the consternation of the court, assistant state's attorneys and his clients . . . The failure of the respondent to be in full compliance with . . . the . . . rules of professional conduct as well as the guidance and direction of the mentor may provoke a revocation of the order of supervision and ultimately result in his suspension from the practice of law in Connecticut.
In response to the third interim report submitted by Attorney Stevens on December 31, 2002, the court scheduled a hearing on February 10, 2003. Hearings were also held on April 28, 2003 and June 3, 2003. Prior to the February 10, 2003 hearing, the petitioner filed a motion requesting that the court also consider that the respondent was disbarred by the Rhode Island Supreme Court on December 11, 2002. At the February 10, 2003 hearing, the respondent was ordered to undergo a psychological or psychiatric evaluation within sixty (60) days to include an assessment of his mental fitness to practice law. A hearing was then scheduled for April 28, 2003 to address the evaluation. In the meantime, Attorney Stevens submitted his fourth and fifth interim reports, dated March 12, 2003 and April 25, 2003, respectively. The fifth interim report indicated that the respondent "has not been showing up in Court when he is supposed to," and failed to maintain communication with the mentor as required by the court's initial order. At the April 28, 2003 hearing, the court entered an interim order suspending the respondent from the practice of law in Connecticut pending a final disciplinary hearing to be held on June 3, 2003.
Although there has been no medical information admitted into evidence, the respondent's comments and behavior in court indicate that he has been overwhelmed by his life circumstances at least since January 2000, which has impacted on his ability to practice law effectively.
A final disciplinary hearing was held on June 3, 2003. At that hearing, the respondent was given an opportunity to address the mentor's reports and to present mitigating evidence on his behalf. The respondent did not dispute any of the information contained in the mentor's reports. Since the hearing, the court has reviewed the history of these proceedings, including all the exhibits. The court has also considered the comments of the assistant bar counsel as well as the testimony and comments of the respondent. Based on that review, the court makes the following conclusions.
Since May 7, 2002, the court-appointed mentor has submitted a total of five interim reports. Collectively, these reports reflect that the respondent is unable to comply with either the requirements of the court-ordered supervision or the rules of professional conduct on a sustained basis. The statements of the respondent in court show a remarkable lack of insight as to his inability to function effectively as a professional. Despite the options offered by the court and the virtual round-the-clock availability of the court-appointed mentor as a resource, as of June 3, 2003, there has been no indication that the respondent has made any real progress during his period of supervision. Rather, his track record while on supervision indicates that he often failed to stay in communication with the mentor; he was constantly late for court; he failed to meet professional obligations which resulted in further disciplinary proceedings in Connecticut; and, clients continued to complain about his failure to communicate with them on a timely basis.
These reports are dated August 26, 2002, October 24, 2002, December 31, 2002, March 12, 2003 and April 25, 2003, all are included in the court file and were also marked as exhibits at the hearing held on June 3, 2003.
The respondent has also failed to comply with the educational components of the May 7, 2002 order. With the eighteen-month deadline looming in December 2003, as of June 3, 2003, the respondent was not able to articulate a plan to comply with subparagraphs (1) and (2) of the order of supervision. Most significantly, although he attended the continuing legal education program on June 14, 2002, which was identified for him by the court in its May 7, 2002 order, he failed to make any arrangements or even to investigate available options toward completing the remaining 6.0 hours of continuing legal education required by the order. Upon inquiry by the court, it was apparent that the respondent had not yet figured out how he was going to comply with professional ethics requirement of the order by seeking out courses or a bar review course in preparation for talking the MPRE (Multistate Professional Responsibility Examination). He also conceded that he missed the opportunity to take summer courses and had not begun to investigate anything for the fall.
In sum, at the June 3, 2003 hearing, it appeared that the respondent had no clear understanding of what options were available to him which would satisfy the terms of the court's May 7, 2002 order. Despite being ordered by the court on February 10, 2003, to arrange for a psychiatric or psychological evaluation within sixty (60) days, the respondent failed to make it a priority. Therefore, based on the respondent's consistent failure to meet the terms of his supervision or to effect any positive change in the manner in which he approaches the practice of law, the court is mandated to impose the most serious discipline.
It is worth noting that the respondent was not only regularly late for court appearances on behalf of clients, he was also late for meetings with Attorney Stevens and even for hearings before this court. Also, to put it charitably, the respondent is careless about representations made to the court. During the period of supervision, there were only sporadic reports of some progress after which the respondent inevitably lapsed into his old ways. As the interim reports and Attorney Stevens' statements in court at the February 10, 2003 and April 28, 2003 hearings reflect, Attorney Stevens made himself totally available to the respondent at Attorney Stevens' home, office and court at virtually any time of day or night. Attorney Stevens reviewed the respondent's files with him, coached him, prodded him, and ran interference for him with the prosecutors with whom the respondent had cases and the judges before whom the respondent appeared. Attorney Stevens did everything and more to assist the respondent than the court could reasonably expect of a pro bono mentor. The fact that the respondent had such a dedicated and competent resource in Attorney Stevens and failed so utterly makes the respondent's failure all the more damaging to his cause.
On April 28, 2003, after the court ordered a suspension pending a final disciplinary hearing, the respondent asked the court for a two-day stay until May 1, 2003, so that he could resolve two criminal matters for which he represented relatives, one in Norwich and one in New London, assuming he paid his client security fund fee. He twice referred to these individuals as relatives. At the hearing on June 3, 2003, the respondent conceded that one of those individuals was not a relative.
Attorney Stevens is an exemplary role model and the respondent was fortunate to have him available to him to guide him through the period of supervision. The court commends Attorney Stevens for his outstanding service and obvious commitment to both the bench and bar.
There have continued to be issues relating to the currency of the respondent's address with both the court and the Statewide Grievance Committee. As previously noted, on December 11, 2002, the respondent was disbarred by the Rhode Island Supreme Court. On December 20, 2002, the Statewide Grievance Committee found probable cause that Attorney Cozzolino engaged in the unauthorized practice of law in Rhode Island after his disbarment based on evidence that he continued to use checks from his clients' account at his law office address in Westerly, Rhode Island, which he had been ordered to close pursuant to the disbarment order in violation of Rule 5.5(1) and Rule 8.4(3) of the Rules of Professional Conduct; and, on April 21, 2003, the respondent was suspended from the practice of law in Connecticut (Beach, J.), for failure to pay his client security fund fee which was due on June 15, 2002. As reported by the respondent at the hearing on April 28, 2003, he continues to have both physical and emotional problems that interfere with his ability to meet his commitments as a lawyer. Although the court has allowed him several opportunities, the respondent has never produced any admissible evidence of his medical claims.
On August 1, 2001, the original application for reciprocal discipline was amended to include an indefinite suspension ordered by the Rhode Island Supreme Court on July 19, 2001. That action was taken by the Rhode Island Supreme Court pending resolution of other pending disciplinary matters. The resolution of those pending matters was the disbarment of the respondent from the practice of law in Rhode Island on December 11, 2002, which has been incorporated by the court as part of these proceedings at the request of the petitioner at the hearings held on February 10, 2003 and April 28, 2003.
As the court noted in its decision of May 7, 2002, "commensurate action" does not necessarily mean "identical action." The trial court has "inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it." In re Weissman, 203 Conn. 380, 384, 524 A.2d 1141 (1987). "[O]f paramount importance in attorney disciplinary matters is the protection of the court, the profession of the law and of the public . . ." (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, 230 Conn. 668, 681, 646 A.2d 781 (1994).
The respondent has a long history of grievances in the states of Rhode Island and Connecticut. The discipline that has resulted arises not from dishonesty but from poor time management, deficient practice skills, a failure to respect the rules of court and rules of professional conduct and a failure to respond promptly and appropriately to disciplinary proceedings. The respondent simply lacks proper regard or concern for the importance of public confidence and professionalism in the practice of law.
The Rhode Island Supreme Court noted in its disbarment decision the extensive discipline imposed by the Supreme Court Disciplinary Board since 1988 as well as the respondent's repeated failures to comply with the orders of disciplinary counsel. The court finds that there is a factual basis for the findings articulated by the Rhode Island Supreme Court which supports its order of disbarment. See In re Cozzolino, 811 A.2d 638 (R.I. 2002) (per curiam).
Finally, the court has exhausted its ability to preserve the respondent's license to practice law in the state of Connecticut. Although the court originally thought a period of suspension would suffice, the respondent's failure to provide a meaningful defense to the application, his cumulative record of prior discipline and his demonstrated carelessness and shortcomings while under this court's supervision mandate disbarment. The respondent's disorganized and undisciplined manner of practicing are unacceptable when the liberty and property of our citizens are at risk. The profession and the public cannot wait in vain for the respondent to reform himself. Accordingly, the court finds, for all the foregoing reasons, that there is clear and convincing evidence that the respondent is not capable of maintaining the minimum standards of the legal profession in the foreseeable future. He is hereby ordered disbarred from the practice of law in Connecticut.
The court has previously appointed Attorney Paul F. Chinigo pursuant to Practice Book § 2-64 to inventory the files of the respondent's clients and to take such actions as is necessary to protect the interests of those clients. Attorney Chinigo is hereby ordered to prepare a report within thirty (30) days of this order.
Peck, J.