Opinion
No. CV 03 0196758
February 2, 2004
MEMORANDUM OF DECISION
The petitioning Statewide Grievance Committee brought this presentment action, pursuant to Practice Book § 2-47(a), seeking the reimposition of discipline against the respondent, Stephen Schaffer, as the Court deems appropriate. Specifically, as indicated at the presentment hearing on September 18, 2003, the petitioner seeks the respondent's disbarment. The respondent has a significant history of professional discipline. A recitation of the specifics of that history is necessary to put his more recent conduct into proper context.
Practice Book § 2-47(a) provides, in pertinent part: "Presentment of attorneys for misconduct, whether or not the misconduct occurred in the actual presence of the court, shall be made by written complaint of the statewide grievance committee or a reviewing committee . . . After such hearing the court shall render a judgment dismissing the complaint or imposing discipline as follows: reprimand, suspension for a period of time, disbarment or such other discipline as the court deems appropriate."
I. RESPONDENT'S DISCIPLINARY HISTORY
The respondent was initially reprimanded by the Statewide Grievance Committee on January 19, 1995 for violating Rule 1.8(a) of the Rules of Professional Conduct for his failure to properly advise a former client in writing to seek independent counsel prior to obtaining a loan from that former client and for his failure to secure the former client's consent in writing. Domino v. Schaffer, Grievance Complaint #93-0089.
On June 17, 1996, the Court suspended the respondent for a period of three months effective July 1, 1996, for violations of Rule 1.15 of the Rules of Professional Conduct and Practice Book § 2-27, formerly § 27(A), for his failure to properly maintain client's funds in his trustee account and by converting funds to his own use. Statewide Grievance Committee v. Stephen N. Schaffer, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 95 148902 (June 17, 1996, Karazin, J).
On July 19, 2001, in response to an Application for an Order of Interim Suspension, Judge Karazin appointed an attorney to serve as monitor over the respondent's trustee accounts. In addition, Judge Karazin ordered that all checks in excess of $750 or for the respondent's benefit drawn against the trustee accounts must be cosigned by the monitor. Stamford/Norwalk Judicial District Grievance Panel v. Stephen N. Schaffer, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 183928 (July 19, 2001, Karazin, J.).
On March 7, 2003 the Reviewing Committee of the Statewide Grievance Committee reprimanded the respondent and ordered him to attend a continuing legal education course in law office management for his failure to promptly deliver proceeds from a real estate transaction to his client and for failure to safeguard client funds in violation of Rule of 1.15(a) of the Rules of Professional Conduct. Grievance Complaint No. 00-0845, Giles v. Schaffer.
On August 22, 2003, the respondent was placed on interim suspension until further order of the court and Attorney Andrew Nevas was appointed Trustee. Stamford/Norwalk Judicial District Grievance Panel v. Schaffer, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV03 193859 (August 22, 2003, Mintz, J.). Judge Mintz found that the respondent violated the following Rules of Professional Conduct: Rule 1.15(b) by failing to safeguard escrow funds; Rule 4.1(1) by making a false statement to a third party regarding the safety of funds; Rule 4.1(2) by failing to disclose to a third party that he had disbursed that person's funds; and Rule 8.4(4) by signing the monitor's name to checks for his clients' trust fund in contravention of Judge Karazin's Order appointing a monitor and directing that all checks must be co-signed by the monitor. Judge Mintz also found that the respondent violated Practice Book § 2-27(b) by failing to keep a client ledger for his clients' funds account.
II. FACTS
The petition before the court contains three counts detailing allegations of misconduct involving character, integrity, and professional standing and conduct. Most of the facts contained in the petition are not in dispute and a "Stipulation of Facts," dated September 18, 2003 and signed by both respondent and assistant bar counsel for the Statewide Grievance Committee, was filed with the Court. All three counts relate to the respondent's activities with one client, Petrus Van De Goor (hereinafter Van De Goor).
Van De Goor, through his LLC formed by the respondent, Export Autos, LLC, made arrangements for sales of expensive automobiles. The respondent allowed Van De Goor's customers to transfer funds into his clients' funds account for the purchase of those vehicles. The respondent then disbursed the funds at Van De Goor's request.
First Count — Dan Mershon Grievance Complaint
In January 2002, Dan Mershon agreed to purchase a 2001 Ferrari 360 Modena Spyder from Van De Goor. The sales contract, dated January 12, 2002, was signed by Jason Lee as seller. The contract provided that Mershon was to wire transfer $160,000 into the respondent's trustee account with the car to be released after the buyer's inspection. The respondent did not receive a copy of Mershon's contract until after these grievance proceedings had begun. The respondent, however, did receive the $160,000 into his trustee account on January 16, 2002. The next day, without requesting any contract or documentation regarding the transaction from either Van De Goor or Mershon and at the direction of Van De Goor, the respondent disbursed all of the funds to Van De Goor and/or creditors and customers as follows: $25,050 to bank account of Van De Goor; $50,000 to creditors or customers of Van De Goor; $84,954 check to himself as trustee which he exchanged for bank checks and/or money orders.
Lee put Mershon in contact with Van De Goor as owner of the motor vehicle on May 16, 2002. Van De Goor signed a sales contract agreeing to sell the Ferrari to Mershon.
The respondent did not confirm with Mershon that the funds could be distributed but acted solely on the representation of his client van De Goor that the car was ready for delivery. Mershon never received the car from Van De Goor.
A few weeks after signing the January 12, 2002 contract, Mershon contacted the respondent inquiring as to the location of the Ferrari. He thereafter telephoned the respondent on several occasions over the next few months as to the location of the car and the safety of his funds. Finally, by letter dated April 8, 2002, Mershon formerly demanded the return of his funds if he did not receive the Ferrari. The respondent did not respond to Mershon's letter.
On May 30, 2002, the respondent wire transferred $64,940 to Mershon pursuant to Van De Goor's instruction but has not transferred any additional funds to Mershon. In or around September of 2002, Mershon visited the respondent's law office and requested the remainder of his funds, and the respondent indicated he was working on the situation.
Second Count — Miko Tam Grievance Complaint
On April 24, 2002, after the respondent received Mershon's formal demand letter requesting return of his funds and when he was aware of Van De Goor's failure to deliver the Ferrari to Mershon, the respondent received $150,000 by wire transfer into his trustee account from Miko Tam for the purchase of another Ferrari from Van De Goor. The next day, without requesting any contract or documentation concerning the Tam transaction and without speaking with Tam, the respondent disbursed $147,500 in accordance with Van De Goor's instructions to Van De Goor and/or his creditors or customers, in part, as follows: $14,500 to Van De Goor's bank account, wire transfers of $35,000 and $65,000 to customers or creditors of Van De Goor and $1,000 to himself for attorneys fees for work related to Tam's transaction with Van De Goor. The respondent did not confirm with Tam that the funds could be disbursed and Tam never received the Ferrari from Van De Goor. In attempting to locate the Ferrari, Tam telephoned the respondent who advised Tam that he was sure he would receive his vehicle and that he, the respondent, would inquire of Van De Goor as to the location of the Ferrari. Subsequently, Tam attempted to reach the respondent on several occasions on or about June 2002 but was unable to speak to him directly. Tam left messages with the respondent's secretary, but the respondent did not respond.
The respondent wire transferred $20,000 to Tam on July 3, 2003 upon Van De Goor's instructions, but did not wire any other funds to Tam and has never provided Tam with an accounting in relation to the funds.
Third Count — Van De Goor's Grievance
The respondent represented Van De Goor in relation to the formation of his limited liability company. The respondent allowed Van De Goor's customers to transfer funds into his trustee account, followed Van De Goor's instructions regarding distribution of these funds, and received attorneys fees, approved by Van De Goor, for allowing these deposits, for making these disbursements and for providing legal advice. The respondent did not provide Van De Goor with any invoices for the work performed, although these were requested on several occasions and assurances given that he would do so.
The respondent borrowed $20,000 from Van De Goor, $10,000 sometime in late 2001 and $10,000 sometime in 2002. The respondent did not provide Van De Goor with promissary notes, did not advise him, in writing, that he should seek the advice of counsel before agreeing to the loan and did not obtain Van De Goor's consent in writing, although the respondent knew that the Rules of Professional Conduct required such a writing. Respondent did not repay the Van De Goor loans despite numerous demands and failed to respond to Van De Goor's letters after July 2002. The respondent did not send Van De Goor a letter confirming termination of his representation.
On August 22, 2003, the petitioner filed a three-count presentment action against the respondent. This court held two days of hearings on September 18, 2003 and October 16, 2003 where evidence and testimony were presented. On October 30, 2003, the parties filed post-hearing memoranda of law. On November 5, 2003 the petitioner filed a reply brief. The petitioner alleges that the respondent violated Rules 1.8(a), 1.15(a), 1.15(b), 1.16(d), 4.1(1), 4.1(2), 8.4(1), and 8.4(3) of the Rules of Professional Conduct.
In Briggs v. McWeeny, 260 Conn. 296, 319, 796 A.2d 516 (2002), the Supreme Court noted that the Statewide Grievance Committee is not required to include the specific sections of the Code of Professional Responsibility in its presentment given its CT Page 1382 sui generis nature. Furthermore, "reference to specific rules of professional conduct within the context of a presentment does not . . . constitute the only basis for a finding of guilt, but serves rather to assist the trial court in making its own conclusions as to whether, under the totality of the circumstances, professional misconduct has occurred." Id.
III. DISCUSSION
A "presentment proceeding 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." Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 483 (1991), cert denied, 502 U.S. 1094, 112 S.Ct. 1170 (1992). "[T]he Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar . . . Thus, the judiciary has the power to admit attorneys to practice and to disbar them . . . to fix the qualifications of those to be admitted . . . and to define what constitutes the practice of law . . . Moreover, a comprehensive disciplinary scheme has been established to safeguard the administration of justice, and designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners." (Citations omitted, internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 835 A.2d 998 (2003).
In any disciplinary proceedings, including presentment actions, the statewide grievance committee must prove by clear and convincing evidence that the attorney engaged in misconduct in violation of the Rules of Professional Conduct. Burton v. Mottolese, supra, 261 Conn. 38. In addition, "[t]he trial court conducts the presentment proceeding de novo . . . In determining whether an attorney violated the Rules of Professional Conduct and the appropriate sanction to impose, the trial court possesses a great deal of discretion." (Citation omitted, internal quotation marks omitted.) Statewide Grievance Committee v. Timbers, 70 Conn. App. 1, 3, 796 A.2d 565 (2002).
In determining which rules, if any, were violated, the court must review the "totality of the circumstances" and the court may look to those rules cited by the Statewide Grievance Committee for assistance. Briggs v. McWeeny, 260 Conn. 296, 319, 796 A.2d 516 (2002). After reviewing the entire record, including exhibits, hearing testimony, and each party's briefs, this court finds that the petitioner has met its burden in proving, by clear and convincing evidence, that the respondent violated Rules 1.8(a), 1.16(a), 1.15(a), 1.15(b), 4.1(1), 4.1(2).
A. RULE VIOLATIONS 1. Rule 1.8(a)
To begin, the respondent violated Rule 1.8(a). Under Rule 1.8(a), a lawyer is prohibited from entering into a business transaction with a client unless the client is fully informed of the terms of the transaction in writing, the client is advised in writing that he should seek the advice of independent counsel, and the client consents in writing. "Rule 1.8 embodies the public policy that an attorney must avoid any conflicts of interest." Mark v. Simoneau, Superior Court, judicial district of Meriden, Docket No. CV 02 0281062 (April 7, 2003, Wiese, J.), citing Cheverie v. Ashcraft Gerel, 65 Conn. App. 425, 435, 783 A.2d 474, cert. denied 258 Conn. 932, 785 A.2d 228 (2001). "In essence, the terms and the transaction must be fair and fully disclosed" when lawyers choose to conduct business with their clients. Statewide Grievance Committee v. Shea, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 0183070 (October 10, 2001, Karazin, J.) ( 2001 Ct. Sup. 13855).
Here, the respondent admitted that he entered into two loan agreements between late 2001 and 2002 with his client, Van De Goor, whereby the respondent borrowed a total of $20,000 from Van De Goor. (Stipulation of Facts at pg. 12, ¶ 8). The respondent also admitted that he did not prepare promissory notes for these transactions. (Stipulation of Facts at pg. 12, ¶ 9). Finally, the respondent admitted that he did not inform Van De Goor that he should seek the advice of independent counsel nor did he receive Van De Goor's written consent prior to entering into these transactions. These admissions represent clear violations of Rule 1.8(a). By violating Rule 1.8(a), the respondent created a conflict of interest by making Van De Goor one of his creditors, and as stipulated, these loans remain unpaid.
2. Rule 1.16(d)
Subsequent to terminating his representation of Van De Goor, the respondent violated Rule 1.16(d). In relevant part, Rule 1.16(d) provides that "[i]f the representation of the client is terminated either by the lawyer withdrawing from representation or by the client discharging the lawyer, the lawyer shall confirm the termination in writing to the client before or within a reasonable time after the termination of the representation."
Sometime after Van De Goor's arrest in July 2002, the respondent decided to terminate his representation of Van De Goor. However, the respondent admitted that he did not notify Van De Goor in writing as the Rule 1.16(d) requires. (Stipulation of Facts at pg. 12, ¶ 13). In fact, rather than the written notification required, the respondent did not respond to Van De Goor's phone calls or letters.
3. Rule 1.15(a)
Next, the respondent violated Rule 1.15(a). Rule 1.15(a), mandates that lawyers must keep "[c]omplete records of [client] account funds and other property shall be kept by the lawyer and shall be preserved . . ." By his own admission the respondent never kept any accounting records or ledgers during his representation of Van De Goor. (Stipulation of Facts at pg. 4, ¶ 6).
Rule 1.15(a) provides in relevant part: "A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property . . . Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved . . ."
4. Rule 1.15(b)
The difficult circumstances in which the respondent now finds himself can largely be attributed to his violations of Rule 1.15(b). In relevant part, Rule 1.15(b) states:
A review of the respondent's memorandum of law reveals a large discussion supporting the view that the respondent did not violate Rule 1.15(c). However, the petitioner's presentment complaint does not allege any violation of that rule, nor does this court believe Rule 1.15(c) is implicated under the circumstances of this case.
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds . . . that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (Emphasis added.)
Consequently, a lawyer has a duty of care over all funds placed into his trustee accounts. Indeed, the Commentary to Rule 1.15 notes, "a lawyer should hold property of others with the care required of a professional fiduciary." Further, "[w]hen an attorney receives money on behalf of a third party who is not his client, he nevertheless is his fiduciary as to such third party. Thus, the funds in his possession are impressed with a trust and his conversion of such funds is a breach of the trust." Statewide Grievance Committee v. Ross, Superior Court, judicial district of New Haven, Docket No. CV 95 0370261 (October 18, 1996, Barnett, J.).
With regard to the Mershon transaction, the respondent received $160,000 by wire transfer from Mershon prior to having any information about the sale. Without contacting Mershon and at the direction of Van De Goor, the respondent distributed the funds the following day to Van De Goor and his creditors. Mershon's funds were gone and the Ferrari was never delivered. The respondent contends that he was not aware that Van De Goor utilized him as an escrow agent and that he had no knowledge of Mershon's "interest" in the funds. The evidence is to the contrary and these arguments fail to convince this court that Rule 1.15(b) was not violated. The evidence presented to this court clearly shows that the respondent knew Van De Goor used him as an escrow agent. First, according to the credible testimony of Mershon, between February 2002 and April 2002 the respondent reassured him that his funds were safe suggesting that the respondent was fully aware of his role as an escrow agent. The respondent's claim that he never reassured Mershon cannot be accepted. Mershon would not have waited over three months before demanding the return of his funds if he was not assured that his funds were safe. Second, the respondent's January 2002 bank statement, which he received in early February, describes Mershon's wire transfer as "ESCROW FOR 2001 FERRARI." (Exhibit J — Petitioner's Brief). Finally, Mershon's April 8, 2002 letter (Exhibit J — Petitioner's Brief) contains the following notation "RE: refund of escrow for 2001 Ferrari."
The respondent cites Shapiro v. McNeil, 92 N.Y.2d 407 (1992), for the proposition that a lawyer is not responsible for disbursing funds where the lawyer has no knowledge either of the existence of an escrow agreement or of a third party's interest in funds. However, the facts in Shapiro are different. In Shapiro, a third party sought to recover funds that were given to the lawyer's client, who then deposited the funds into the lawyer's escrow account. The third party had no direct contact with the lawyer. Here, Mershon himself deposited the funds into the respondent's trustee account.
Furthermore, whether the respondent actually knew he was being used as an escrow agent before transferring Mershon's funds to his client does not change the result. Under Rule 1.15(b), the respondent owed a fiduciary duty to Mershon at the moment those funds were deposited into the respondent's trustee account. Consequently, the respondent had a responsibility to find out what the funds were related to and who was entitled to receive them before disbursement. Here, the respondent made no attempts to ascertain the full nature of the sales transaction between Mershon and his client, nor did he contact Mershon to ascertain when Van De Goor was entitled to receive the funds. Instead, the respondent trusted Van De Goor's representations that Van De Goor was entitled to the funds. Simply disbursing Mershon's funds without contacting Mershon clearly violates his duty to safeguard the funds of a third party.
On April 24, 2001, the respondent received $150,000 by wire transfer from Miko Tam. Similar to the Mershon transaction, the respondent distributed the funds the following day to his client without asking any questions or contacting Tam. The result was also the same — no car was delivered and Tam's funds were disbursed to Van De Goor and his creditors. The respondent again claims that he was not aware that Van De Goor was using him as an escrow agent at the time of the Tam transaction. However, it is inconceivable to this court that the respondent was not aware he was being used as an escrow agent for the Tam transaction since he now knew that Mershon thought he was an escrow agent. In addition, Van De Goor had still not delivered the Ferrari to Mershon. By releasing Tam's funds to his client without contacting Tam, the respondent again violated Rule 1.15(b). This violation is particularly egregious in light of the respondent's knowledge, at the time he released Tam's funds, of the Mershon transaction and Van De Goor's failure to produce the car or return the funds.
5. Rule 4.1(1) and Rule 4.1(2)
When the respondent falsely assured Mershon that the $160,000 he transferred was safe, he violated Rule 4.1(1). According to Rule 4.1(1), in pertinent part: "In the course of representing a client a lawyer shall not knowingly . . . [m]ake a false statement of material fact or law to a third person." Mershon called the respondent numerous times between February 2001 — March of 2001 to inquire about his funds and was assured by the respondent that his funds were safe. However, the respondent knew this was not true because Mershon's funds had been distributed by the respondent to Van De Goor and/or Van De Goor's creditors the day after they were deposited in to the trustee account. The whereabouts of those funds certainly was a material fact and false claims related to their safety violates Rule 4.1(1).
Similarly, the respondent violated Rule 4.1(2) when he failed to inform Mershon that the $160,000 was no longer in the respondent's possession. Under Rule 4.1(2): "In the course of representing a client a lawyer shall not knowingly . . . [f]ail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited by Rule 1.6." That Mershon's funds had been transferred to Van De Goor was a material fact necessary to avoid assisting Van De Goor's fraudulent acts. The respondent's knowing failure to notify Mershon that he no longer possessed the funds, despite Mershon's repeated inquires as to safety of those funds, violated Rule 4.1(2).
B. SANCTIONS
The court now must determine what sanction to impose on the respondent. "A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession . . . Thus, a court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what the sanction should be." (Citations omitted; internal quotation marks omitted.) Burton v. Mottolese, supra, 261 Conn. 54. The trial court has "inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound judicial discretion to determine what sanction to impose in light of the entire record before it." (Internal citations omitted.) Statewide Grievance Committee v. Shluger, 230 Conn. 668, 678 (1994). "[C]ourts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice." (Internal citations omitted). Id., 679.
"In sanctioning [the respondent], the trial court is guided by the American Bar Association's Standards for Imposing Lawyer Sanctions . . . The [ABA] Standards provide that, after a finding of misconduct, a court should consider: (1) the nature of the duty violated; (2) the attorney's mental state; (3) the potential or actual injury stemming from the attorney's misconduct; and (4) the existence of aggravating or mitigating factors. A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 3.0, p. 25." Briggs v. McWeeny, 260 Conn. 296, 333-34, 796 A.2d 516 (2002).
Although the judges of the Superior Court use the ABA Standards as a guide, "the Standards, originally promulgated in 1986, have not formally been adopted by the judges of this state." (Internal quotation marks omitted.) Burton v. Mottolese, supra, 261 Conn. 55, n. 50.
First, the nature of the duties violated by the respondent concern his duties to his own client, fiduciary responsibilities to the public, and his responsibilities, as an officer of this court, to safeguard the administration of justice. Second, the respondent's mental state did not appear to be a factor either at the time of his misconduct or at the presentment hearings. Third, the respondent's misconduct caused Mershon and Tam to suffer substantial monetary losses. Finally, the aggravating factors referred to in the ABA Standards include the following: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; (k) illegal conduct, including that involving the use of controlled substances. A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 9.22, p. 49. The court will address only those aggravating factors that pertain to the circumstances of this case.
The respondent's lengthy disciplinary history, which dates back to 1995 and detailed in section one of this opinion, is significant and involves similar violations to those at issue here, i.e. taking improper loans from client, the mishandling of his trustee accounts, and the failure to safeguard client funds. Of particular note, in August 2003 Judge Mintz found that the respondent repeatedly violated a Superior Court order when he, on three occasions, forged the signature of a court appointed trustee charged with co-signing all checks drawn on the respondent's trustee account.
Next, the respondent claims to have not acted with any selfish or dishonest motive. However, when the respondent assured Mershon his funds were safe he was either covering for Van De Goor's misdeeds or trying to conceal his own mistakes.
The respondent's misconduct also fits into a recent pattern of misconduct which began in 1995. The court further notes that the respondent's present misconduct occurred during a period in which his trustee account was already being monitored by the court. In addition, his misconduct at issue here involved multiple offenses against his own client and two third parties.
Throughout the presentment proceedings the respondent maintained that he, too, was a victim of Petrus Van De Goor, despite admitting to conduct which shows that he violated numerous sections of the Rules of Professional Conduct. The respondent's forty-one years of experience in the practice of law makes his misconduct difficult to comprehend and is therefore another aggravating factor.
Next, we turn to the mitigating factors. ABA Standard § 9.22 includes the following list of mitigating factors: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of prior offenses. A.B.A., Standards for Imposing Lawyer Sanctions (1986) Standard 9.22, p. 50.
The respondent offered evidence to support of a finding of the existence of certain mitigating factors. In particular, the respondent did not, in any significant way, personally benefit from the Mershon or Tam transactions. In addition, the respondent made attempts to recover some of the funds he was responsible for distributing and was partly successful. The respondent presented two character witnesses who testified to the respondent's good character and has shown a cooperative attitude toward these proceedings. The respondent also claims he is remorseful, but steadfastly maintains that he is not responsible for what occurred because he, like Mershon and Tam, was the unknowing victim of Van De Goor's duplicity.
"An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited . . . Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." (Emphasis in original, internal quotation marks omitted.) Doe v. Statewide Grievance Committee, 240 Conn. 671, 684-85, 694 A.2d 1218 (1997); Burton v. Mottolese, supra, 261 Conn. 54.
The respondent's prior disciplinary history resulted in a reprimand, a short-term suspension and the appointment of a trustee to monitor the respondent's trustee account. The petitioner now seeks the respondent's disbarment. According to the commentary of § 5.0 of the ABA Standards: "[t]he most fundamental duty which a lawyer owes the public is the duty to maintain the standard of personal integrity upon which the community relies. The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct." Furthermore, § 5.11(b) states that disbarment is generally appropriate when "a lawyer engages in other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously reflects on the lawyer's fitness to practice."
The respondent's misconduct convinces this court that he cannot be trusted with the duties and responsibilities of an attorney and is unfit to practice law. He has violated fundamental duties of this profession. Despite being disciplined in the past, the respondent continued to violate numerous Rules of Professional Conduct. His behavior demonstrates that he is not a safe and fit person to be entrusted with the responsibilities and obligations of an attorney. He cannot be trusted to protect the interests of his clients, the public, and the administration of justice.
Viewing the totality of the circumstances and balancing the factors set forth in the ABA guidelines, it is hereby ordered that Stephen N. Schaffer be disbarred from the practice of law in this state and that he be prohibited from applying for readmission for a period of three years. Given the fact that the respondent is currently under interim suspension, a trustee has previously been appointed to protect the respondent's clients. Furthermore, any application for readmission shall be conditioned on the respondent achieving a passing score on the Multistate Professional Responsibility Exam (MPRE).
HILLER, JUDGE.