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DISCIPLINARY COUNSEL v.
FRANK CANNATELLI
(AC 44091)
Moll, Alexander and Suarez, Js.
Syllabus
The petitioner, the Disciplinary Counsel, filed a presentment alleging miscon-
duct by the respondent attorney, after a reviewing committee of the
Statewide Grievance Committee found that the respondent had violated
various provisions of the Rules of Professional Conduct and the rules
of practice. The disciplinary proceeding remained inactive while the
respondent pursued his appeal to the Superior Court from the decision
of the grievance committee directing the petitioner to file a presentment.
After the appeal process was completed, the court scheduled a hearing
on the presentment. The trial court rendered judgment for the petitioner,
and suspended the respondent from the practice of law for one year.
The respondent thereafter filed a postjudgment motion to dismiss for
lack of subject matter jurisdiction, arguing for the first time that, pursu-
ant to the applicable rule of practice (§ 2-47 (a)), the court lacked
jurisdiction because a hearing on the merits of the presentment was
not held within sixty days of its filing with the court. The court denied
the respondent’s motion, and this appeal followed. Held:
1. The respondent could not prevail on his claim that the trial court erred
in denying his postjudgment motion to dismiss for lack of subject matter
jurisdiction; contrary to the respondent’s claim, our Supreme Court has
held that the sixty day hearing requirement of Practice Book § 2-47 (a)
is directory, not mandatory, and that failure to meet its time requirements
does not deprive the court of jurisdiction, and this court was bound by
the decision of our Supreme Court.
2. The trial court did not abuse its discretion in suspending the respondent
from the practice of law for one year; when stripped of repeated asser-
tions that the court lacked subject matter jurisdiction, the respondent’s
contentions offered little by way of meaningful analysis, and, therefore,
were unavailing.
Submitted on briefs February 4—officially released March 16, 2021
Procedural History
Presentment by the petitioner for alleged profes-
sional misconduct of the respondent, brought to the
Superior Court in the judicial district of New Haven
and tried to the court, Abrams, J.; judgment suspending
the respondent from the practice of law for one year,
from which the respondent appealed. Affirmed.
Frank P. Cannatelli, self-represented, the appellant
(respondent).
Brian P. Staines, chief disciplinary counsel, for the
appellee (petitioner).
Opinion
PER CURIAM. In connection with the presentment
filed by the petitioner, the Disciplinary Counsel, alleging
misconduct by the respondent attorney, Frank Canna-
telli, the respondent appeals from the judgment of the
Superior Court suspending him from the practice of
law for one year for numerous violations of the Rules
of Professional Conduct and the rules of practice. We
affirm the judgment of the Superior Court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On or about
November 20, 2015, following an evidentiary hearing,
a reviewing committee of the Statewide Grievance Com-
mittee (grievance committee) issued a comprehensive
decision finding that the respondent had violated vari-
ous provisions of the Rules of Professional Conduct
and the rules of practice. By way of summary only, we
recite the following facts, which the reviewing commit-
tee found by clear and convincing evidence. Following
an initial investigation by the grievance committee into
a November, 2013 overdraft from the respondent’s
IOLTA1 account, ‘‘[a] subsequent investigation of the
respondent’s IOLTA account revealed that the respon-
dent had made numerous payments directly from his
IOLTA account for personal and business expenses.
These included payments to Comcast, TransAmerica,
the [United States] Treasury, and the Mohegan Sun
Casino. The respondent did not maintain proper records
of his IOLTA accounts, including failure to maintain
accurate ledgers.
‘‘As of December 30, 2013, the balance in the respon-
dent’s IOLTA account was $195.24; however, the
respondent had deposited $10,591.35 into the account
on behalf of a client, Ziemba, during the period of Octo-
ber 21, 2013, to December 3, 2013, and had disbursed
$8544.63 on behalf of the client for the same period,
leaving [approximately $1850] unaccounted for.
‘‘The respondent received a check in the amount of
$5487.77 as an asset of the estate of Mark Ziemba, as
set forth in the respondent’s June 22, 2014 letter to the
Wallingford Probate Court, but no inventory was filed
with the Probate Court as of September 1, 2014, and
the funds were held by the respondent until April of
2015.’’ The reviewing committee further found that the
respondent had not promptly returned a retainer in a
matter that did not go forward.
Against the backdrop of these facts, the reviewing
committee found the following violations by clear and
convincing evidence, stating: ‘‘It is eminently clear from
the record, and the respondent acknowledges, that he
was commingling funds in his IOLTA account, paying
personal bills and expenses directly from the account,
and not maintaining complete records for the account,
in violation of [r]ule 1.15 (b) of the Rules of Professional
Conduct. Keeping his own funds in the account, beyond
the amount necessary to avoid service charges, further
constitutes a violation of [r]ule 1.15 (c) of [the] Rule[s]
of Professional Conduct and Practice Book § 2-27 (a).
In paying a retainer over a period of time, rather than
promptly, the respondent was in violation of [r]ule 1.15
(e) of the Rules of Professional Conduct.
‘‘The respondent’s failure to maintain required
account records, including accurate general and client
ledgers, accurate receipt and disbursement journals,
copies of disbursements, and copies of billing state-
ments, was in violation of [r]ule 1.15 (i) of the Rules
of Professional Conduct and Practice Book § 2-27 (b).
The respondent’s handling of the Ziemba matters,
where [approximately $1850] was not accounted for as
of December 30, 2013, and where $5487.77 was held by
the respondent until April of 2015, constitute violations
of [r]ules 1.3, 1.15 (b) and (e), and 8.4 (3) of the Rules
of Professional Conduct.
‘‘The record in this matter reflects that the respon-
dent’s mishandling of his IOLTA account has been egre-
gious. There was clear commingling, and the reviewing
committee notes that the respondent previously agreed
not to use his IOLTA account to pay personal or busi-
ness related expenses, in a 2008 grievance complaint
(Bowler v. Cannatelli, Grievance Complaint #08-0185).’’
On the basis of the foregoing, the reviewing committee
directed the petitioner, pursuant to Practice Book § 2-
35 (i), to file a presentment against the respondent. On
February 1, 2016, the respondent appealed from the
order of presentment to the Superior Court. Cannatelli
v. Statewide Grievance Committee, Superior Court,
judicial district of Hartford, Docket No. CV-16-
6065656-S.
Meanwhile, on February 3, 2016, the petitioner filed a
one count presentment against the respondent, alleging
numerous incidents of attorney misconduct (disciplin-
ary proceeding). Specifically, the petitioner alleged that
the respondent violated rules 1.15 (b), 1.15 (c), 1.15 (e),
1.15 (i), 1.3, and 8.4 (3) of the Rules of Professional
Conduct, as well as Practice Book § 2-27 (a) and (b),
by commingling personal funds in his IOLTA account,
paying personal bills and expenses directly from his
IOLTA account, failing to maintain complete and accu-
rate IOLTA account records, keeping personal funds in
his IOLTA account above the amount necessary to avoid
service charges, paying back an unused retainer fee to
a client over time and not promptly, and failing to prop-
erly handle funds in the Ziemba matter with a specified
amount unaccounted for and a separate amount held
too long in the account.
In June, 2016, the Superior Court dismissed the
respondent’s appeal from the grievance committee’s
decision for lack of an appealable final judgment and
subsequently denied his motion to reargue the judgment
of dismissal. See Cannatelli v. Statewide Grievance
Committee, 186 Conn. App. 135, 137–38, 198 A.3d 716
(2018), cert. denied, 331 Conn. 903, 202 A.3d 374 (2019).
The respondent appealed therefrom to this court, which
affirmed the judgment of the Superior Court. Id., 136.
Thereafter, our Supreme Court denied the respondent’s
petition for certification to appeal on February 27, 2019,
denied the respondent’s motion for reconsideration on
April 3, 2019, and denied the respondent’s motion for
reconsideration en banc on May 22, 2019.
On September 25, 2019, the petitioner notified the
Superior Court in the disciplinary proceeding, which
had remained inactive while the respondent pursued
his appeal from the order of presentment, that the pre-
sentment was ready to be scheduled for a hearing. On
October 8, 2019, the court scheduled a hearing for
December 9, 2019.
On November 22, 2019, pursuant to Practice Book
§ 2-82 (a) and (b), the parties executed a stipulation
and submitted it to the court for approval on November
25, 2019 (stipulation). The stipulation recites the follow-
ing facts. The respondent was admitted to the Connecti-
cut bar in December, 1988, and has a history of attorney
discipline, including a reprimand in February, 1998, a
reprimand in March, 1998, a sanction with conditions
in August, 2008, a reprimand in March, 2009, and a
reprimand with conditions in July, 2012. As of the date
of the stipulation, the respondent was in good standing.
By grievance complaint dated July 29, 2014, Michael P.
Bowler, statewide bar counsel, instituted a grievance
complaint against the respondent. In connection there-
with, the respondent tendered an affidavit pursuant to
Practice Book § 2-82 (d), which was attached to the
stipulation, in which he acknowledged that there was
sufficient evidence to prove by clear and convincing
evidence the material facts constituting a violation of
the Rules of Professional Conduct and the rules of prac-
tice, as set forth in the November 20, 2015 decision of
the reviewing committee, which also was attached to
the stipulation and incorporated therein. Relatedly, the
stipulation contained the following provision: ‘‘The par-
ties stipulate that the court, when entering judgment
on this presentment, may find by clear and convincing
evidence the facts as set forth in the reviewing commit-
tee’s decision of November 20, 2015, as well as the
violations of the Rules of Professional Conduct and
the Practice Book.’’ The stipulation further stated that,
pursuant to Practice Book § 2-82 (c), the parties were
unable to agree to a proposed disposition but agreed,
while retaining the right to appear at a hearing regarding
a disposition and to present argument, that the matter
should be submitted to the court ‘‘for the imposition
of whatever discipline the court deems appropriate.’’
On December 9, 2019, the court conducted a hearing
on the presentment, during which the parties presented
argument and the court admitted into evidence several
documents offered by the respondent.2 On January 28,
2020, the court issued a memorandum of decision ren-
dering judgment in favor of the petitioner, finding by
clear and convincing evidence that the respondent had
violated the Rules of Professional Conduct and the rules
of practice as set forth in the presentment, and sus-
pending the respondent from the practice of law for a
period of one year. The court explained that, in reaching
its decision, it took ‘‘into account the respondent’s sig-
nificant history of discipline and the fact that the issues
raised in this grievance proceeding, particularly the
respondent’s use of his IOLTA account to pay personal
expenses, involved behavior for which the respondent
had been previously sanctioned . . . .’’
On January 31, 2020, the respondent filed with the
Superior Court a postjudgment motion to dismiss for
lack of subject matter jurisdiction, arguing for the first
time that, pursuant to Practice Book § 2-47 (a), the court
lacked subject matter jurisdiction because a hearing on
the merits of the presentment was not held within sixty
days of the filing thereof with the court. On April 21,
2020, the court denied the motion.3 This appeal fol-
lowed.
On appeal, the respondent does not challenge any of
the underlying facts or findings of violations. Rather,
the respondent claims that the court (1) erred in denying
his postjudgment motion to dismiss for lack of subject
matter jurisdiction and (2) abused its discretion in sus-
pending him from the practice of law for one year. The
respondent’s claims are without merit and require only
brief discussion.
First, the crux of the respondent’s primary claim is
that the court lacked subject matter jurisdiction at the
time it rendered judgment. In support of his claim, the
respondent relies on Practice Book § 2-47 (a), which
provides in relevant 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 disciplinary counsel. Service
of the complaint shall be made as in civil actions. Any
interim proceedings to the contrary notwithstanding, a
hearing on the merits of the complaint shall be held
within sixty days of the date the complaint was filed
with the court. . . .’’ (Emphasis added.) According to
the respondent, (1) the sixty day hearing requirement
in § 2-47 (a) is mandatory, and (2) the fact that the
hearing on the merits of the complaint in this disciplin-
ary proceeding took place well beyond the sixty day
period deprived the Superior Court of subject matter
jurisdiction. In Statewide Grievance Committee v. Roz-
bicki, 219 Conn. 473, 595 A.2d 819 (1991), cert. denied,
502 U.S. 1094, 112 S. Ct. 1170, 117 L. Ed. 2d 416 (1992),
our Supreme Court held that the identical language of
Practice Book (1978–97) § 31 (a), the predecessor to
§ 2-47 (a), is ‘‘directory, and not mandatory, and that
failure to meet its time requirements does not deprive
the court of jurisdiction.’’4 Id., 481. ‘‘It is axiomatic that,
as an intermediate court, we are bound by the decisions
of our Supreme Court. [I]t is manifest to our hierarchical
judicial system that [the Supreme Court] has the final
say on matters of Connecticut law and that the Appel-
late Court and Superior Court are bound by [its] prece-
dent.’’ (Internal quotation marks omitted.) LM Ins.
Corp. v. Connecticut Dismanteling, LLC, 172 Conn.
App. 622, 633, 161 A.3d 562 (2017). Thus, the respon-
dent’s first claim fails.5
Second, the respondent claims that the court abused
its discretion in suspending him from the practice of
law for a period of one year. We disagree.
‘‘A court disciplining an attorney does so not to pun-
ish the attorney, but rather to safeguard the administra-
tion of justice and to protect the public from the miscon-
duct or unfitness of those who are members of the legal
profession. . . . Inherent in this process is a large
degree of judicial discretion. . . . 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 appro-
priate and, if so, what that sanction should be. . . .
[A]lthough our review of grievance proceedings is
restricted, we recognize the seriousness of the interests
that we must safeguard. 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, in the exercise of a reasonable discre-
tion . . . .’’ (Citation omitted; internal quotation marks
omitted.) Statewide Grievance Committee v. Dixon, 62
Conn. App. 507, 515–16, 772 A.2d 160 (2001).
When stripped of repeated, rehashed assertions that
the court lacked subject matter jurisdiction, the respon-
dent’s contentions in support of his second claim reflect
a ‘‘kitchen sink’’ approach, offering little by way of any
meaningful analysis. Having considered the respon-
dent’s contentions, such as they are, we conclude that
they are unavailing. In short, on the basis of our review
of the record and the briefs, we conclude that the court
did not abuse its discretion in suspending the respon-
dent from the practice of law for one year.
The judgment is affirmed.
1
‘‘IOLTA stands for ‘interest on lawyers’ trust accounts.’ ’’ Disciplinary
Counsel v. Hickey, 328 Conn. 688, 692 n.2, 182 A.3d 1180 (2018).
2
The petitioner recommended, inter alia, that the court impose a one year
suspension.
3
The court stated in relevant part: ‘‘As a threshold matter, the court must
consider whether it should even consider the respondent’s postjudgment
motion, even though it raises the issue of subject matter jurisdiction. ‘[O]nce
a judgment [is] rendered it is to be considered final and it should be left
undisturbed by [posttrial] motions except for a good and compelling reason.
. . . Otherwise, there might never be an end to litigation.’ [Citation omitted;
internal quotation marks omitted.] Chapman Lumber, Inc. v. Tager, 288
Conn. 69, 107, [952 A.2d 1] (2008). ‘[T]he modern law of civil procedure
suggests that even litigation about subject matter jurisdiction should take
into account the importance of the principle of the finality of judgments,
particularly where the parties have had a full opportunity to originally contest
the jurisdiction of the adjudicatory tribunal. . . . Under this rationale, at
least where the lack of jurisdiction is not entirely obvious, the critical
considerations are whether the complaining party had the opportunity to
litigate the question of jurisdiction in the original action, and, if he did have
such opportunity, whether there are strong policy reasons for giving him a
second opportunity to do so.’ (Citations omitted; [internal quotation marks
omitted].) Vogel v. Vogel, 178 Conn. 358, 362–63, [422 A.2d 271] (1979).
‘‘Section 12 of the Restatement (Second) of Judgments provides: ‘When
a court has rendered a judgment in a contested action, the judgment pre-
cludes the parties from litigating the question of the court’s subject matter
jurisdiction in subsequent litigation except if: (1) [t]he subject matter of the
litigation was so plainly beyond the court’s jurisdiction that its entertaining
the action was a manifest abuse of authority; or (2) [a]llowing the judgment
to stand would substantially infringe the authority of another tribunal or
agency of government; or (3) [t]he judgment was rendered by a court lacking
capability to make an adequately informed determination of a question
concerning its own jurisdiction and as a matter of procedural fairness the
party seeking to avoid the judgment should have opportunity belatedly to
attack the court’s subject matter jurisdiction.’ [1 Restatement (Second),
Judgments § 12, p. 115 (1982)].
‘‘ ‘Unless a litigant can show an absence of subject matter jurisdiction
that makes the prior judgment of a tribunal entirely invalid, he or she must
resort to direct proceedings [appeal] to correct perceived wrongs . . . . A
collateral attack on a judgment is a procedurally impermissible substitute
for an appeal. . . . [A]t least where the lack of [subject matter] jurisdiction
is not entirely obvious, the critical considerations are whether the complain-
ing party had the opportunity to litigate the question of jurisdiction in the
original action and, if he did have such an opportunity, whether there are
strong policy reasons for giving him a second opportunity to do so.’ [Citation
omitted; internal quotation marks omitted.] In re Shamika F., 256 Conn.
[383, 407–408, 773 A.2d 347] (2001).
‘‘In this case, it is not obvious in any respect that this court lacked subject
matter jurisdiction when it entered judgment beyond the sixty day period
contained in Practice Book § 2-47 (a). First, authority exists for the proposi-
tion that time limits imposed on disciplinary matters are directive rather
than mandatory and that failure to adhere to those deadlines does not
deprive the court of subject matter jurisdiction. Doe v. Statewide Grievance
Committee, 240 Conn. 671, 681, [694 A.2d 1218] (1997). In addition, a review
of the file reveals that respondent’s actions were the major cause of the
fact that this matter was not concluded expeditiously. As a matter of public
policy, allowing respondents to ‘run out the clock’ in disciplinary matters
would run counter to the administration of an effective attorney disciplinary
process. Finally, the respondent did not raise the issue of subject matter
jurisdiction when the hearing was held in this matter. In fact, the [respon-
dent] did not dispute liability, but, rather, simply argued for a less severe
sanction than that sought by the [petitioner].’’
4
The respondent’s only response to the Rozbicki decision is to state that
‘‘[i]t was talking about [Practice Book §] 31 (a) and not [§] 2-47 (a),’’ wholly
ignoring the fact that the court in Rozbicki was addressing the same rule
prior to the renumbering of the rules of practice in 1998.
5
We find no error in the court’s treatment of the respondent’s postjudg-
ment motion, as set forth in footnote 3 of this opinion, which is only but-
tressed by our conclusion herein.