Opinion
No. CV 03-0472701
April 17, 2003
MEMORANDUM OF DECISION
The petitioning Statewide Grievance Committee has brought this presentment petition in which it seeks the respondent's disbarment based on alleged misconduct involving his character, integrity and professional standing and conduct. The respondent has had a long history of professional discipline. Indeed, his right to practice law has been under continuous suspension since May 1, 1998. A recitation of the history of the disciplinary actions taken against the respondent is necessary to put his more recent conduct into proper context.
The respondent was initially reprimanded by the Statewide Grievance Committee in October 20, 1995, for failure to have a written fee agreement within a reasonable time and for withdrawing from his client's case without giving the client notice prior to the court hearing. Chambers v. Dixon, Grievance Complaint #94-0643. On April 19, 1996, the respondent was again reprimanded by the Statewide Grievance Committee in the matter of D'Andrea v. Dixon, Grievance Complaint #84-0888 for failing to honor a protection letter to a medical provider.
On July 29, 1997, the court suspended the respondent for a period of nine months, effective July 30, 1997, with automatic reinstatement scheduled for April 30, 1998. The suspension was based upon the respondent's having settled a client's uninsured motorist claim without prior approval of the client and for presenting a general release to the insurance company which had been pre-signed in blank by the client, misdated and falsely witnessed. The respondent also did not appropriately transfer the settlement proceeds to his client. Statewide Grievance Committee v. Dixon, Docket No. CV 07-0398826 S (Judicial District of New Haven).
The respondent was again presented to the Superior Court for the imposition of discipline, and on October 15, 1998, he was suspended for a period of two years, retroactive to May 1, 1998, with the requirement that he apply for readmission after fulfilling certain preconditions pursuant to Practice Book § 2-53. This decision was affirmed in Statewide Grievance Committee v. Dixon, 57 Conn. App. 904 (2000), cert denied, 253 Conn. 920 (2000).
As a result of his failure to have a fee agreement with his clients and having divided fees with an attorney not in his firm without his client's knowledge or consent in violation of Rule 1.5(c) of the Rules of Professional Conduct, the respondent was suspended from the practice of law yet again on December 7, 1999 for a period of nine months. The trial court required that the respondent apply for readmission pursuant to Practice Book § 2-53, and that decision was also affirmed by the Appellate Court. Statewide Grievance Committee v. Dixon, 61 Conn. App. 507 (2001).
The petitioner's second amended presentment is the operative pleading in this proceeding, and it contains three counts, the essential facts of which are not disputed by the respondent. Although he was eligible to apply for readmission to the bar as of May 2000, the respondent had not done so. He was therefore still under suspension when, on July 5, 2001, he filed an appearance in a criminal case on behalf of an acquaintance named Aldo Delrosario and attempted to enter not guilty pleas on his behalf. When an Assistant State's Attorney pointed out to the court, John R. Downey, J., that the respondent was under suspension, a colloquy ensued during the course of which the court expressed its displeasure at the respondent's conduct and indicated that it would refer the matter to the Statewide Grievance Committee, which it did.
The respondent offers no real defense to this allegation. In purported mitigation of his conduct, however, he notes that he did not fill in a "juris number" on the appearance form. His unpersuasive argument appears to be that because he did not list the "juris number," he was therefore not really holding himself out to be a member of the bar. When questioned by Judge Downey, he also indicated that he was only filing his appearance as a stopgap measure until the defendant could hire his own attorney, but this explanation likewise does not render his conduct any less improper. The respondent's actions involved dishonesty and misrepresentation in violation of Rule 8.4(3) and was prejudicial to the administration of justice in violation of Rule 8.4(4) of the Rules of Professional Conduct.
The second count alleges that on four separate occasions between September 16, 1998 and May 18, 1999, the respondent was arrested and charged with numerous crimes including breach of peace, threatening, violation of a protective order, harassment and tampering with a witness, the latter charge being a felony. On October 9, 2001, he entered nolo contendere misdemeanor pleas to one count of threatening and three counts of violating a protective order. He was sentenced by the court, Hadden, J., to a total effective sentence of four years, execution suspended, with three years of probation. He is thus presently on probation and will be on probation through October of 2004. The respondent's criminal conduct violated Rules 8.4(2) and (4) of the Rules of Professional Conduct.
The third count of the second amended presentment alleges that a reviewing committee of the Statewide Grievance Committee had issued a decision presenting the respondent to the Superior Court in Grievance Complaint #01-0835, New Haven judicial district for the towns of Bethany, New Haven and Woodbridge Grievance Panel v. Dixon. The respondent filed a request for review of that decision on February 29, 2003 on legal stationery that indicated that he was an "attorney at law." At the time that he wrote that letter, the respondent was, as he has been since May 1, 1998, suspended from the practice of law. The respondent acknowledges that this conduct violates Rules 8.4(3) and (4) of the Rules of Professional Conduct. His unsatisfactory explanation for doing so was that his legal stationery was the only writing paper available to him at the time that he was preparing to request review of the reviewing committee's decision.
Samuel E. Dixon, Jr. was admitted as a member of the bar of the state of Connecticut on May 10, 1985. He remained a member in good standing until the spate of misconduct outlined in the opening paragraphs of this memorandum of decision.
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, 117 L.Ed.2d 416 (1992). "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." Doe v. Statewide Grievance Committee, 240 Conn. 671, 684-85, 694 A.2d 1218 (1997), quoting Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995).
While they have not been officially adopted as rules by the Judges of the Superior Court, the American Bar Association's Standards for Imposing Lawyer Sanctions have frequently been utilized in determining the appropriate discipline to be imposed in presentment matters. Our Supreme Court has noted their usefulness in Statewide Grievance Committee v. Spirer, 247 Conn. 762, 782, 725 A.2d 948 (1999); see also Statewide Grievance Committee v. Shluger, 230 Conn. 668, 673 n. 10, 646 A.2d 781 (1994). The Standards provide useful guidance to a court that seeks to assure itself that all relevant considerations have been taken into account.
Section 3.0 of the Standards states that "[i]n imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors: (a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors." The duties violated by the respondent in this case are primarily those of candor and honesty toward the court. The respondent wilfully violated the court's order suspending him from the practice of law by filing an appearance in a criminal case and misrepresenting himself as an attorney. His attempt to deny that he misrepresented himself because he did not include his juris number is thoroughly unpersuasive. He also violated protective orders issued by the court and, in doing so, violated our criminal statutes. Although it is unlikely that Dixon thought he was fooling anyone on the grievance committee by writing his request for review on attorney letterhead, he once again showed a lack of candor to an arm of the court.
As to Dixon's mental state, neither party offered any evidence. The respondent has, throughout this proceeding, been polite and courteous both to the court and to counsel for the Statewide Grievance Committee. This court is at a loss to explain an escalating pattern of misconduct that has characterized the respondent's last several years, and the respondent himself offered no reasonable explanation for his professional decline. There has certainly been no claim that the respondent's conduct is the result of mental illness.
There has been no evidence that any client suffered actual injury as a result of Dixon's wrongdoing. Any claim of potential injury would be speculative. The principal harm here has been to the profession and to the administration of justice.
Section 9.1 of the ABA Standards states that "[a]fter misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose." The § 9.22 aggravating factors include: (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; 6) indifference to making restitution; (k) illegal conduct, including that involving the use of controlled substances.
The court has already detailed the respondent's lengthy disciplinary history that has culminated in suspension from the practice of law for nearly five years. This is a significant aggravating factor. There is no evidence of a selfish or dishonest motive with regard to the three counts of the instant presentment. Occurring as they did during a period of suspension, these multiple acts of misconduct must be viewed as part of a pattern of misconduct, and this too is a serious aggravating factor. Although the respondent has been polite and prompt in his handling of these allegations, it is also true that the third count of the second amended presentment itself demonstrates deception during the course of the disciplinary process. Dixon has admitted all of the allegations of the petition, but he does not appear to understand their seriousness. He views his filing an appearance on behalf of a criminal defendant as something he had to do to help a friend who did not have another lawyer at the time. He seems to feel that the domestic difficulties that resulted in four criminal convictions are a) not his fault and b) not suggestive of any character flaw that might call in to question his ability to practice law, and that violating three protective orders does not reflect on his attitude toward the court or the administration of justice.
There has been no evidence tending to suggest the existence of an especially vulnerable victim. Restitution is not an issue in this case.
Dixon had practiced law actively for ten years. Even though his years of practice had been followed by five years worth of suspensions, with that degree of experience, there is no rational excuse for his doing what he did. The court therefore considers the respondent's substantial previous experience in the practice of law as a somewhat aggravating factor. The fact that the second count references four criminal convictions, resulting in sentences for which the respondent is still on probation, is a substantial aggravating factor.
The § 9.32 mitigating factors include: (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 disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of a successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of prior offenses. The respondent has offered no evidence in support of a finding of the existence of any of these mitigating factors other than the absence of a dishonest or selfish motive and a cooperative attitude toward these proceedings. One cannot help but wonder whether there is some mental disability that has contributed to the respondent's decline, but he himself has not suggested this, nor has he submitted medical evidence that might support such a conclusion, and there certainly has been no evidence that he has recovered and that future misconduct is therefore unlikely.
The Petitioner seeks the respondent's disbarment. The respondent himself suggests a short term of suspension. Absent extraordinary circumstances, however, if a suspension were imposed in this case, it would at a minimum be co-existent with the term of the respondent's criminal probation, that is, through October of 2004. See, e.g. Statewide Grievance Committee v. Mercer-Falkoff, No. C97-0404805 (Mar. 17, 2000), 2000 Ct. Sup. 2973, 26 Conn.L.Rptr. 669; Statewide Grievance Committee v. Hochberg, Docket No. CV97-0575688S (Hartford Judicial District, July 12, 1999). The respondent had already been under suspension, however, at the time of the acts which led to the filing of the instant presentment, and that suspension seems not to have deterred him. Even now, he displays little appreciation of the seriousness of his misconduct and its implications for his prospects of ever being worthy of being trusted to engage in the practice of law.
An attorney's fitness can be judged by conduct beyond his or her role as an attorney:
An attorney at law admitted to practice, and in the exercise of the right thus conferred to act as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercised 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. As important as it is that an attorney be competent to deal with the oftentimes intricate matters which may be entrusted to him, it is infinitely more so that he be upright and trustworthy.
In re Application of Pagano, 207 Conn. 336, 345 (1988), citing In re Peck, 88 Conn. 447, 450 (1914). See, Statewide Grievance Committee v. Shluger, 230 Conn. 668, 674-75 (1994); Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55 (1995).
A review of the ABA standards suggests that absent aggravating or mitigating circumstances, the respondent's misconduct includes the sort that could properly be dealt with by either disbarment or suspension. The commentary to Section 5.0, Violations of Duties Owed to the Public, states:
The most fundamental duty which a lawyer owes the public is the duty to maintain the standards 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.
A "serious crime" is defined as any felony and any lesser crime a necessary element of which involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy to commit a "serious crime."
Section 5.11 states that disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.
Section 5.12 states that suspension is generally appropriate when:
a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.
The commentary to this section cites the Model Rules of Professional Conduct:
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
The respondent's criminal convictions do not include felonies, but they do include three counts of violating protective orders of the court. Such violations constitute intentional and repeated interference with the administration of justice and strongly suggest an indifference to legal obligation.
Section 6.11 suggests that disbarment is generally appropriate when:
a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
Section 6.12 of the Standards suggests that suspension is appropriate when:
a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.
The respondent's conduct in submitting an appearance in a criminal case while under suspension, thereby holding himself out to be an attorney admitted to practice, constitutes the making of a false statement with the intent to deceive the court. Under the circumstances here, it produced a potentially adverse effect on the legal system. Standing alone, this act would probably subject the respondent to no more than a suspension, but in the context of the larger pattern of misconduct he has exhibited, a suspension is inadequate.
Section 7.1 of the standards notes that:
Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.
Section 7.2 suggests that:
Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.
The filing of an appearance while under suspension, even if ostensibly in order to try to benefit a "client," is a violation of a duty owed to the profession. It might have carried the potential for injury to that "client," and is certainly caused potential harm to the legal system, on which the public relies to maintain the existence of a qualified Bar.
Part of the context in which the respondent's misconduct occurred is the fact that he has been the subject of numerous disciplinary proceedings and was under suspension at the time of the acts constituting all three counts of the instant petition. Section 8.0 of the Standards, which deals with prior discipline orders, notes that:
Severe sanctions should be imposed on lawyers who violate the terms of prior disciplinary orders. While such lawyers may also demonstrate a pattern of misconduct that will serve as an aggravating factor (see Standard 9.22), these violations are so serious as to warrant special discussion.
Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving prior discipline.
8.1 Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession;
The commentary to this section states:
Disbarment is warranted when a lawyer who has previously been disciplined intentionally or knowingly violates the terms of that order and, as a result, causes injury or potential injury to a client, the public, the legal system or the profession. The most common case is one where a lawyer has been suspended but, nevertheless, practices law. The courts are generally in agreement in imposing disbarment in such cases. As the court explained in Matter of McInerney, 389 Mass. 528, 451 N.E.2d 401, 405 (1983), when the record establishes a lawyer's willingness to violate the terms of his suspension order, disbarment is appropriate "as a prophylactic measure to prevent further misconduct by the offending individual."
These suggestions in the standards are all prefaced by the phrase, "absent aggravating or mitigating circumstances." As previously discussed, there is little in the way of meaningful mitigation presented by the respondent, and many aggravating circumstances have been highlighted by the petitioner.
Over the last several years, the respondent has committed numerous violations of our Rules of Professional Conduct, both while engaged in the practice of law and outside of it. To this day, he continues to demonstrate that he is "an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney."
Sadly, the court has received no evidence whatsoever that would give it reason to believe . . . or even to hope . . . that the respondent is capable of reforming himself. To the contrary, the pattern of his misconduct and his nearly total lack of insight suggests little likelihood that the respondent will ever be able to be trusted to follow our rules of professional conduct.
It is always distressing to see someone squander a career, but this is exactly what the respondent has done. This court longs for an explanation of his conduct that would persuade it that, given time and supervision, the respondent would be able to demonstrate the moral qualifications and character required for reinstatement to the bar. His polite and pleasant external demeanor are the only cause for such optimism, however, and this court is forced to conclude that this apparent quality serves only to mask the fact that the respondent is unable to conduct himself in accordance with the rules of our profession.
With regret, therefore, the court agrees with the recommendation of the Statewide Grievance Committee and disbars the respondent. Given the fact that the respondent has already been under suspension for five years, there is no need to appoint a trustee to protect the interests of either the respondent or his clients.
Jonathan E. Silbert, Judge