Opinion
No. CV00-0803164
January 7, 2011
MEMORANDUM OF DECISION
BackgroundOn June 22, 1999, the Superior Court, Berger, J., suspended Nitor Egbarin from the practice of law for a period of five years. The court found that: "[He] violated Rule 8.4(3) by engaging in conduct that involved dishonesty, fraud, deceit and misrepresentation . . . We have a continuing duty to make it entirely clear that the standards of conduct, nonprofessional as well as professional, of the members of the profession of the law in Connecticut have not changed, and that those standards will be applied under our rules of law . . . Those standards require that attorneys be honest and forthright. Moreover, the Preamble to the Rules of Professional Conduct states, [a] lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs . . . Certainly these principles apply to the financial aspects of a real estate closing. The respondent has woefully failed to meet these standards. In this case he has fraudulently misrepresented relevant facts to his mortgage lender and to the seller of his former home. He has failed to pay his taxes and he has been less than honest and forthright with this court." (Emphasis in original; citations and internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, Superior Court, Judicial District of Hartford at Hartford, Docket No. CV 98-0585474S (Berger, J., June 22, 1999). That decision was affirmed by the Appellate Court in Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, cert. denied, 255 Conn. 949 (2001).
On November 28, 2001, Egbarin was disbarred from the practice of law based on a six-count presentment involving numerous violations of the rules of professional conduct which he did not contest. Those violations included failing to advise a client that her case had been settled, repeatedly telling her it had not, and withholding the settlement funds from her for over a year. The violations also included numerous failures to honor letters of protection given to health care providers as well as an overdraft of Egbarin's clients' trust account.
By application dated January 12, 2009, Egbarin sought readmission to the bar. The application was referred to the Committee on Recommendations for Tolland County because of a conflict on the part of the Committee for Hartford County in that Egbarin's attorney was member of that Committee. On August 11, 2009, the Committee recommended that Egbarin's application be granted subject to various conditions. In response, after conducting a hearing on November 2, 2009, and determining that the record was inadequate for it to undertake an appropriate review of the Committee's decision, the undersigned panel of the Superior Court remanded the matter to the Committee. On November 5, 2009 the panel issued the following order: "that in considering the Application the Committee shall: 1. Consider the decision of Judge Berger dated June 22, 1999 suspending the Applicant, affirmed, 61 Conn.App. 445 (2001), as well as the grounds for the disbarment of the Applicant by Judge Langenbach on November 28, 2001. Notice of the hearing shall be given to all complainants in those proceedings. 2. Have a record made of its proceedings which includes a transcript of any hearing held, any exhibits received by the panel, and any other documents considered by the panel in reaching its decision. The record shall also contain copies of all notices provided by the panel in accordance with the provisions of Practice Book § 2-53. 3. Take all testimony at the hearing under oath. 4. Include in its report its subordinate findings of facts and conclusions as well as its recommendations. 5. Submit its report and the record of its proceedings to this court."
In response to the panel's remand order, the Committee conducted an ab initio hearing on March 4, 2010, and, on June 2, 2010, issued its findings and recommendations in which it found that Egbarin had not met his burden of proof with regard to his fitness to practice law and concluded that he not be readmitted to the practice of law. The Committee's report, as well as the record of its proceedings, in accordance with the panel's order of November 5, 2009, was filed with the court. A hearing on the Committee's recommendation was held on October 26, 2010.
Discussion
The Appellate Court in Statewide Grievance Committee v. Rapoport, 119 Conn.App. 269, 273-4, cert. denied, 297 Conn. 907 (2010), recently had occasion to set forth the standard of review to be utilized by the court when considering a recommendation concerning reinstatement of an attorney. The Court held: "The standard that the trial court is to apply when reviewing the committee's recommendation is well settled. The standard of review in cases involving admission or readmission to the bar has been clear since it was announced by this court in 1906 in O'Brien's Petition, [ 79 Conn. 46, 55-56, 63 A. 777 (1906), overruled in part on other grounds by In re Application of Dinan, 157 Conn. 67, 72, 244 A.2d 608 (1968)] . . . In O'Brien's Petition, supra, 55, our Supreme Court held that the [Superior Court] had rightly declined to hear evidence as to questions the decision of which was entrusted to the State bar examining committee and that it was proper for [the court] to inquire whether the approval of the bar was withheld after a fair investigation of the facts. We have since adhered to that rule generally, stating that the issue before the court is whether the committee or the bar . . . acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts . . . Our Supreme Court very clearly has stated the standard to be employed in cases involving readmission to the bar. It is well established that the trial court must determine whether the standing committee, in recommending a denial of an application, acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts." (Emphasis in original; citations and internal quotation marks omitted.) The court also noted that "[w]e review the committee's findings of fact under the clearly erroneous standard of review. See Friedman v. Connecticut Bar Examining Committee, 77 Conn.App. 526, 529, 824 A.2d 866 (2003) (Superior Court's role in reviewing a petition for admission is not that of factfinder . . .), appeal dismissed, 270 Conn. 457, 853 A.2d 496 (2004); see also Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 840, 890 A.2d 622 (2006) (reviewing committee in attorney grievance appeal is trier of fact); Henry v. Statewide Grievance Committee, 111 Conn.App. 12, 21, 957 A.2d 547 (2008) (factual findings reviewed under clearly erroneous standard)." (Internal quotation marks omitted.) Id., 284-5.
As the court stated in Statewide Grievance Committee v. Kalkstein, Superior Court, Judicial District of Hartford at Hartford, Docket No. HHD CV 020817230 (Graham, J., Gold, J., Elgo, J. March 10, 2009): "The readmission process following the indefinite suspension of an attorney must focus . . . on the issue of present fitness to practice . . . Character is not measured in the crucible of a single instance and the assessment for reentry appropriately centers on the question of present fitness . . . As such [t]he dispositive issue raised by an application for reinstatement to the bar is whether the applicant is presently fit to exercise the privileges and functions of an attorney, as an officer of the court, and as a confidential manager of the affairs and business of others entrusted to his care . . . Regarding the question of an applicant's fitness, [a]s 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 . . . An applicant for readmission to the bar must be possessed of such standards of honor and honesty and have such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law . . . Good moral character is a necessary and proper qualification for admission to the bar . . . [T]he ultimate burden of proving good character rests upon the applicant." (Citations and internal quotation marks omitted.)
"[T]he appropriate inquiry when deciding whether to grant admission to the bar is whether the applicant has present fitness to practice law . . . Fitness to practice law does not remain fixed in time." (Emphasis in original; citation and internal quotation marks omitted.) Statewide Grievance Committee v. Rapoport, 119 Conn.App. 269, 277, cert. denied, 297 Conn. 907 (2010). "The readmission process of a disbarred attorney must focus on the issue of present fitness to practice law . . . The burden of proving fitness is on the applicant." (Citations omitted.) In Re Application of Presnick, 53 Conn.App. 174, 176 (1999).
The respondent makes much of his claim that his disbarment was overly harsh in relation to the penalties given out to others for what, he argues, was more egregious behavior. Yet it is not the job of this panel to review the disbarment decision. Egbarin had every opportunity to seek appellate review of his disbarment if he felt his disbarment was inappropriate, which he did not. The sole job of this panel to determine whether the Committee acted arbitrarily or unreasonably or in abuse of its discretion in recommending that Egbarin not be readmitted.
The Committee found that Egbarin's disbarment was based on numerous violations which he did not contest. The Committee expressed concern that Egbarin did not comprehend the seriousness of the violations or express much regret or remorse. The Committee found that he had made no restitution to any complainants. The Committee also found that he had not engaged in education or counseling regarding the reasons for his disbarment other than the required ethics course. In addition, despite not having practiced law for ten years, he had not engaged in any continuing legal education courses.
As noted above, the determination for the Committee was whether Egbarin was presently fit to practice law. Other than the passage of time, and the completion of an online ethics course, there is little in the record on which the Committee could base this decision. "A redemptive and rehabilitative life requires the passage of time for documentation. The more serious the misconduct, the more time required to meet the burden of moral trustworthiness." (Citation and internal quotation marks omitted.) Statewide Grievance Committee v. Rapoport, 119 Conn.App. 269, 275, cert. denied, 297 Conn. 907 (2010). Although more than ten years has elapsed since Egbarin has practiced law, the record provides little insight, or documentation, as to what he has accomplished during that time which would reflect his present fitness to practice law. He referenced working on a commission basis for two financial services company, being affiliated with two charitable organizations, although doing little actual work for them, and presently working as a manager for soccer players in Europe. Although Egbarin testified that in his financial services' jobs there was never any claim made that he mishandled clients' funds, the record does not contain any references from any of his employers or other objective evidence which could enlighten the Committee or the court as to the scope or nature of his job duties during the recent past. Therefore an evaluation cannot be made of his present fitness to practice law based on his recent work history. The Committee also referenced the lack of proof that Egbarin had engaged in any education or counseling addressed to the personal and organizational problems that he indicated precipitated his ethical lapses and the record reveals none. The Committee was also concerned with Egbarin's lack of involvement with the law since his disbarment. Although he alleged in his application for readmission that he had worked as a paralegal, no evidence to support this claim appears in the record. The record reveals that he did not take any other legal education courses, besides the required ethics course, prior to the Committee's decision. Besides representing himself in his own litigation and reading the Connecticut Law Tribune, there is no evidence in the record to support a conclusion contrary to that of the Committee that Egbarin has had a significant lack of involvement in the law since his disbarment.
Although, at the hearing before the panel, Egbarin submitted evidence that, in September 2010, he did complete a course on federal civil practice and procedure.
Based on the record before the Committee the panel cannot conclude that the Committee acted arbitrarily or unreasonably or abused its discretion in recommending that Nitor Egbarin not be readmitted to the practice of law in Connecticut.
Conclusion
For the reasons stated above, we unanimously agree with the recommendation of the Committee and the Application for Readmission to the Bar is denied.
CHRISTINE E. KELLER, Superior Court Judge, JAMES T. GRAHAM, Superior Court Judge, JANE S. SCHOLL, Senior Superior Court Judge.