Opinion
No. CV 00-0596154
November 28, 2000
MEMORANDUM OF DECISION
I
The Statewide Grievance Committee (Committee) has brought the present matter seeking disciplinary action pursuant to Practice Book § 2-41 against the respondent, Edward Morelli, as a result of a felony conviction in the United States District Court, District of Connecticut, on January 28, 2000. While the respondent entered a plea of guilty on October 1, 1996, to the charge of filing false statements in violation of 18 U.S.C. § 1005, he was sentenced on January 28, 2000, to five months imprisonment and two years supervised release including a five month period of home incarceration. In addition, the respondent was ordered to pay restitution in the sum of $332,674 at the rate of $500 per month to be modified based upon his financial circumstances. The respondent has served the five months incarceration and will be confined to his home until January, 2001.
Practice Book § 2-41 states:
"(a) An attorney shall send to the statewide bar counsel written notice of his or her conviction in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States of a serious crime as hereinafter defined within ten days of the entry of the judgment of conviction. That written notice shall be sent by certified mail, return receipt requested.
"(b) The term "conviction as used herein refers to the disposition of any charge of a serious crime as hereinafter defined resulting from either a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of any appeal.
"(c) The term `serious crime' as used herein shall mean any felony as defined in the jurisdiction in which the attorney was convicted.
"(d) The written notice required by subsection (a) of this section shall include the name and address of the court in which the judgment of conviction was entered, the date of the judgment of conviction, and the specific section of the applicable criminal or penal code upon which the conviction is predicated.
"(e) Upon receipt of the written notice of conviction the statewide bar counsel shall obtain a certified copy of the attorney's judgment of conviction, which certified copy shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney on the basis of the conviction. Upon receipt of the certified copy of the judgment of conviction, the statewide bar counsel shall file a presentment against the attorney with the superior court for the judicial district wherein the attorney maintains an office for the practice of law in this state, except that, if the attorney has no such office, the statewide bar counsel shall file it with the superior court for the judicial district of Hartford. The sole issue to be determined in the presentment proceeding shall be the extent of the final discipline to be imposed, provided that the presentment proceeding instituted will not be brought to hearing until all appeals from the conviction are concluded unless the attorney requests that the matter not be deferred. The statewide bar counsel shall also apply to the court for an order of immediate interim suspension, which application shall contain the certified copy of the judgment of conviction. The "court may in its discretion enter an order immediately suspending the attorney pending final disposition of a disciplinary proceeding predicated upon the judgment of conviction. Thereafter, upon good cause shown, the court may, in the interest of justice, set aside or modify the interim suspension. Whenever the court enters an order suspending or disbarring an attorney pursuant to this section, the court may appoint a trustee, pursuant to Section 2-64, to protect the client's and the attorney's interests.
"(f) If an attorney suspended solely under the provisions of this section demonstrates to the court that the underlying judgment of conviction has been vacated or reversed, the court shall vacate the order of interim suspension and place the attorney on active status. The vacating of the interim suspension shall not automatically terminate any other disciplinary proceeding then pending against the attorney.
"(g) An attorney's failure to send the written notice required by this section shall constitute misconduct.
"(h) No entry fee shall be required for proceedings hereunder."
On March 29, 2000, this court placed the respondent on interim suspension and the Committee is now requesting that this court suspend the respondent for at least the term of his supervised release. The respondent does not oppose a suspension, but for a variety reasons, he argues that the suspension should terminate at the conclusion of the home confinement portion of the supervised release.
II
"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.) Doe v. Statewide Grievance Committee, 240 Conn. 671, 684, 694 A.2d 1218 (1997), quoting Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995).
Section 2-41 (e) of the Practice Book states, in part, that "[t]he sole issue to be determined in the presentment proceeding shall be the extent of the final discipline to be imposed." This court is certainly familiar with the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards), which, while not adopted by the judges of this state, have been widely used in determining the proper sanctions to impose in disciplinary actions. The system balances aggravating and mitigating factors.
Our Supreme Court acknowledged these Standards in reviewing and upholding a trial court's decision in Statewide Grievance Committee v. Shluger, 230 Conn. 668, 673 n. 10, 646 A.2d 781 (1994).
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; and (c) the actual or potential injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors."
Section 9.1 of the Standards states that: "[a]fter misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose."
The aggravating factors in § 9.22 of the Standards 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;
"(j) indifference to making restitution;
"(k) illegal conduct, including that involving the use of controlled substances."
The mitigating factors in § 9.32 of the Standards 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 boards 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 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."
Without discussing each of the specific factors mentioned below, the Committee argues that since the respondent's one count conviction involved multiple instances of filing false statements and that such conduct necessarily involved deceit and misrepresentation, that a substantial suspension — at least for the term of the federal supervised release period — should be imposed.
Rule 8.4 of the Rules of Professional Conduct states, in part:
"It is professional misconduct for a lawyer to:
"(1) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
"(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
"(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
"(4) Engage in conduct that is prejudicial to the administration of justice. . . ."
The respondent argues that the conviction must be put in perspective. The improper conduct involved the failure to disclose the existence of a second mortgage for certain real estate closings, all of which occurred in 1988 and 1989, some eleven years ago. In discussing both the aggravating and mitigating factors, the respondent first stresses that he has no prior disciplinary record. Next, the respondent emphasizes that there was no dishonest or selfish motive. He testified that he had an extremely successful real estate practice having handled over 4,000 closings and representing, at the time of the incidents, approximately thirty banks. The unlawful activity apparently had stemmed from a plan devised by a banker and a real estate agent, and, while they did in fact derive substantial economic benefit, the respondent received something less than $3000 in total legal fees as attorney for the lender. Thus, the respondent argues that selfishness is not an aggravating factor.
The respondent next notes that when he was contacted by the federal prosecutors in 1994, he immediately confessed his wrongdoing and cooperated with the government — working hundreds of hours — gathering information for the prosecution of others. The respondent's actions in working closely with the government certainly can be considered a mitigating factor.
In connection with whether the conduct involved a single pattern of behavior or multiple offenses, the respondent acknowledges that the improper conduct involved nine closings, although his plea concerned only one instance. The respondent notes that the acts occurred about five years after he was admitted to practice. The respondent certainly could not be considered inexperienced in the real estate field of law.
The issue of the vulnerability of the victim is multifaceted. Surely the fact that the respondent was representing a financial institution as opposed to an individual does not lessen the conduct or even make the client necessarily less vulnerable. Yet, the respondent makes a number of arguments in his defense. Again, the conduct involved the respondent's failure to disclose the existence of second mortgages at the time of the closing of residential properties. The properties all went into foreclosure. The respondent argues that the victim bank engaged in a no asset and "no income verification" loan process and that the foreclosures occurred, in part, as a result of both the downturn in the Hartford economic market and gang warfare in the particular neighborhood. (Respondent's Memorandum, p. 5.) While conceding that the subject conduct was clearly wrong, the respondent maintains that it did not cause the financial loss to the bank. Moreover, the respondent points out that the lending bank was actually purchased by a larger bank which sued, then settled, with the respondent in 1998. This court had no specific evidence concerning the individual foreclosure actions or the settlement with the successor bank and can make no findings as to any of those issues. It is important to note, however, that Judge Covello's sentence did include a restitution component of some $332,674.
Finally, the respondent stresses that when confronted in 1994, he quickly confessed his guilt. Moreover, as noted, the respondent entered into the plea agreement in October, 1996, but was not sentenced until January, 2000. The respondent commented on the impact the six year waiting period had on his and his family's life up to the time he went to prison. While the respondent continued to practice law until his suspension in March, 2000, he terminated his real estate practice in 1994. The respondent informed the court that his time in prison was terrible and made even more so by a snapped Achilles tendon. This court was impressed with the respondent's genuine expression of remorse.
This court received copies of a number of very complimentary letters that were initially addressed to Judge Covello in support of the respondent. Apparently, the respondent has been very active in his community.
III
This court previously has entered suspensions for the term of the incarceration or probation for attorneys who have been convicted of felonies. See Statewide Grievance Committee v. Hochberg, Superior Court, judicial district of Hartford, Docket No. 575688 (July 14, 1999) ( 25 Conn.L.Rptr. 213); Statewide Grievance Committee v. Rothenberg, Superior Court, judicial district of Hartford, Docket No. 598362 (July 24, 2000). As indicated, the Committee seeks such a disciplinary order and the respondent argues that this court should depart from that stance in this case.
It should be noted that while the Committee is only seeking a suspension, § 5.11 of the Standards states that "[d]isbarment is generally appropriate when: (a) a lawyer engages in a serious criminal conduct a necessary element of which includes . . . fraud . . . or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice. Section 5.12 of the Standards provides the penalty of suspension for that conduct which is not covered by § 5.11.
While recognizing this court's position, the respondent stresses that other cases support a more lenient view. First, the respondent refers to our Supreme Court's opinion in Statewide Grievance Committee v. Spirer, 247 Conn. 762, 725 A.2d 948 (1999), in which the court upheld a six month suspension in a case in which the respondent had been sentenced to a three year period of probation after conviction in federal court of two felonies, finding that the trial court did not abuse its discretion. In the somewhat related case of Statewide Grievance Committee v. Glass, 46 Conn. App. 472, 699 A.2d 1058 (1997), another felony conviction with a three year term of probation, a judicial reprimand was upheld by the Appellate Court after finding that the trial court had not abused its discretion. Superior Court judges have also imposed disciplinary measures of suspension for less time than the criminal sentence. See Statewide Grievance Committee v. Skolnick, Superior Court, judicial district of New Haven at New Haven, Docket No. 407542 (April 24, 1998, Silbert, J.) (attorney sentenced to two years probation for violation of 26 U.S.C. § 7206 (1) but only suspended from the practice of law for one year); Statewide Grievance Committee v. Bennett, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 55198 (August 30, 1996, Rush, J.) (attorney sentenced to three years probation for violation of 18 U.S.C. § 1957 but only suspended from the practice of law for three months); Statewide Grievance Committee v. Hoffman, Superior Court, judicial district of Stamford Norwalk at Stamford, Docket No. 138427 (August 24, 1994, Lewis, J.) (attorney sentenced to three years probation for violation of 18 U.S.C. § 1014 but only given reprimand).
In Statewide Grievance Committee v. Rothenberg, supra, Superior Court, Docket No. 598362, this court found no reason to depart from its stated policy that it would be imprudent to reinstate an attorney while he was still serving his sentence. Support has been found not only in this state; see, e.g., Statewide Grievance Committee v. Mercer-Falkoff, Superior Court, judicial district of New Haven, Docket No. 404805 (March 17, 2000, Silbert, J.) ( 26 Conn.L.Rptr. 669); but also in other jurisdictions. See, e.g., In the Matter of the Application of Dortch, 687 A.2d 245, 251 (Md.App. 1997);In the Matter of Micci, 225 App.Div.2d 888, 639 N.Y.S.2d 642, 643 (1996); In the Matter of Marinangeli, 211 App.Div.2d 272, 628 N.Y.S.2d 79, 80 (1995); In the Matter of Ament, 890 S.W.2d 39, 41 (Tex. 1994); In re Culpepper, 770 F. Sup. 366, 373 (E.D.Mich. 1991); In the Matter of the Reinstatement of Walgren, 708 P.2d 380, 388 (Wash. 1985) In the Matter of Griffin, 677 P.2d 614, 614-15 (N.M. 1983); The Florida Bar Petition of Pahules, 382 So.2d 650, 651 (Fla. 1980).
In Statewide Grievance Committee v. Mercer-Falkoff, supra, 26 Conn.L.Rptr. 669, Judge Silbert wrestled with the conflict between the persuasive mitigating factors and the necessity of safeguarding the administration of justice. Many of those same mitigating factors exist in this case as well. Additionally, this court is aware that despite having confessed to his misconduct in 1994, and having pleaded guilty in 1996, the respondent was not sentenced until 2000. Morelli assisted the government in its prosecution of others involved in similar schemes during this period, which may have exacerbated the delay. of course, one of the Standards' mitigating factors is the delay in the disciplinary proceedings. See Standards § 9.32(j). While the petitioner surely did not delay the institution of these proceedings, the delay in the criminal prosecution has impacted these proceedings.
Judge Silbert stated that "[a]lthough agreeing in principle with such pronouncements, this court is disturbed that the one remaining impediment to the respondent's reinstatement is the somewhat serendipitous fact that the respondent is still on probation for a single series of events that occurred some eleven years ago. Given his lack of any other disciplinary actions, the references provided for him by distinguished members of the Bar of this state, his stellar military record, his willing compliance with the terms of his probation, exceeding, even, the pace at which his community service was to be performed, and the court's sense that it is highly unlikely that he would violate our rules of conduct in the future, there is little doubt that but for the existing federal supervised release, this court would be prepared to terminate the suspension of the respondent's license to practice immediately." Statewide Grievance Committee v. Mercer-Falkoff, supra, 26 Conn.L.Rptr. 671.
The Standards, however, state that "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 abide by the law; public confidence in the integrity of the officers of the court is undermined when lawyers engage in illegal conduct." Standards § 5. Faced with the same balancing issues, this court strongly believes that the reasoning of the court in In Re Culpepper, supra, 770 F. Sup. 373, holds true: "Although the Court was impressed with Mr. Culpepper's testimony and sincerity concerning his contrition and rehabilitation, as well as the testimony of other witnesses at the hearing regarding his competence and learning in the law, the Court finds that his resumption to the practice of law before this Court before he has completed his term of parole on the sentence of incarceration on Counts 3 and 4 would be detrimental to the integrity and standing of the Federal Bar." That court further added that "[a]t a time such as the present when the ethics and practices of the legal profession are under intense public scrutiny and criticism, it seems to this Court inappropriate to reinstate to the practice of law an attorney who is still serving a sentence of incarceration imposed by this Court. . . . In this Courts view, it would be a disservice to the public, to the practicing bar and this Bench to effectively say that, although a person is legally disabled, by virtue of his criminal conviction status, from a serving as a juror, it is acceptable for him to serve as an officer of this court." Id., 374.
Mr. Culpepper had been convicted of three counts of income tax evasion and failure to file income tax returns in violation of 26 U.S.C. § 7201 and was sentenced to three years of confinement and five years of probation upon release and ordered to pay a fine of $15,000. In re Culpepper, supra, 770 F. Sup. 366. He was ordered suspended from the practice of law before the United States District Court for the Eastern District of Michigan and while still on parole/probation, he applied for readmission. Id., 367.
General Statutes § 51-217 (a)(2) states that a person shall be disqualified to sit as a juror if he or she "has been convicted of a felony within the past seven years or is a defendant in a pending felony case or is in the custody of the Commissioner of Correction."
This court is in agreement and therefore, for the reasons stated above, this court hereby orders, as final discipline to be imposed, that Mr. Morelli be suspended for the term of his supervised release.
As imposed, this suspension is obviously for a definite term: Mr. Morelli is now serving a two year period of supervised release. Should that supervised release be modified and reduced, this court will entertain a reduction of the suspension.
Berger, J.