Statewide Grievance Committee v. Shluger

Berdon, J.,

dissenting. I disagree with the majority because I believe that the trial court abused its discretion in suspending the defendant, Robert Shluger, from the practice of law for three years. Although it was within the discretion of the court to discipline the defendant by suspending him from the practice of law, I believe that the suspension is excessive.

The conduct that precipitated the disciplinary proceedings was the defendant’s filing of a false federal income tax return for the year 1988. Although the defendant had also filed a false tax return for the year 1986, a fact that the trial court took into consideration, the federal government only prosecuted him for the false 1988 tax return. The defendant pleaded guilty to the felony offense and was sentenced to two years probation. He was also ordered to pay all sums due to the Internal Revenue Service, the costs of prosecution and a special assessment of $50. In addition to these facts, the trial court considered the two prior reprimands the defendant had received from the local grievance committee for engaging in improper communications with parties represented by counsel.

Of course, the defendant’s conduct is not to be condoned and surely requires some type of sanction. Their “unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline. . . . Because of this special relationship, [w]e have a continuing duty to make it entirely clear that the standards of conduct ... 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 discretion .... This court will neither neglect nor attempt to avoid that responsibility.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Roz-bicki, 211 Conn. 232, 238, 558 A.2d 986 (1989). *683Nevertheless, as the plaintiff, the statewide grievance committee, concedes, disciplinary proceedings are instituted not to punish, but rather “for the purpose of preserving the courts from the official ministration of persons unfit to practice in them.” (Internal quotation marks omitted.) Id.

There are three factors that should be taken into account in this case in determining the nature and extent of the discipline that is needed in order to protect the judiciary and the legal profession from the attorney misconduct. First, of course, is the nature of the attorney misconduct. It is particularly significant in this case that the defendant’s misconduct did not involve a client. See In re Weissman, 203 Conn. 380, 383, 524 A.2d 1141 (1987) (“[t]he court considered the seriousness of the respondent’s misconduct, as well as the relative lack of harm thereby caused to his clients”); Statewide Grievance Committee v. Donnarumma, Superior Court, judicial district of Waterbury, Docket No. 111253 (8 Conn. L. Rptr. 447, 448, March 4, 1993) (“the court notes that this transgression neither involves a client nor the court”); A.B.A., Standards for Imposing Lawyer Sanctions (1991) p. 5 (“in determining the nature of the ethical duty violated, the standards assume that the most important ethical duties are those obligations which a lawyer owes to clients” [emphasis in original]).

It becomes clear that the defendant’s three year suspension is excessive when it is compared with the sanctions that have been imposed on attorneys who mishandled their clients’ funds—acts of misconduct that involve the attorney-client relationship. In Statewide Grievance Committee v. Van Kirk, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-90-0384679-S (3 Conn. L. Rptr. 789, 792, March 28, 1991), an attorney who had mishandled more than $26,000 worth of one client’s funds, had *684engaged in dishonest and deceitful behavior regarding another client, and had been reprimanded seven times previously, was suspended for only one year. In Statewide Grievance Committee v. Botwick, Superior Court, judicial district of New Haven, Docket No. 32 23 37 (5 Conn. L. Rptr. 748, December 26, 1991), an attorney was suspended for one year after investing roughly $94,000 of a client’s funds in his own company and representing to another attorney that the funds, which were intended to pay off a mortgage held by the client, would be held in escrow until the client had signed a release. The court stated that this conduct, which violated rule 8.4 (c) of the Rules of Professional Conduct, “strikes at the very essence of the practice of law and threatens one of the basic tenets of the profession. If one lawyer cannot rely on the written promise of another, we are not a profession of lawyers.” Id., 749. The attorney was also reprimanded for “entering into a business transaction with ... his client” in violation of rule 1.8 of the Rules of Professional Conduct. Id., 748.1

The second factor that should be considered in this case is the defendant’s professional background. See Statewide Grievance Committee v. Donnarumma, supra, 8 Conn. L. Rptr. 448. As the majority concedes, the defendant participated in pro bono, charitable and bar association activities, “enjoyed a good reputation in the community and [as a member of] the bar, and . . . appeared to be remorseful for his illegal conduct.”

The third factor that should be considered is how the sanction imposed on the attorney compares with the discipline that has been imposed on other attorneys who *685have engaged in similar or more serious misconduct. In the recent case of Statewide Grievance Committee v. Donnarumma, supra, 8 Conn. L. Rptr. 447, the attorney had pleaded guilty to income tax evasion. The seriousness of his offense is underscored by the federal district court’s sentence of imprisonment of seven months and one year supervised release. As pointed out by the trial court, the attorney’s transgressions were “aggravated by the circumstances involved in the Waterbury municipal corruption case . . . ." Id., 448. Nevertheless, the trial court suspended him from the practice of law for only nine and one-half months. Id. In In re Weissman, supra, 203 Conn. 381, the attorney had pleaded guilty to the crime of wilfully failing to file a federal income tax return and had been sentenced to one year imprisonment, but execution of the sentence was later suspended and the attorney was placed on probation for two years. This court upheld the attorney’s suspension from the practice of law for one month, a sanction that is remarkably lenient in light of the fact that the attorney had been suspended from federal practice for one year. Id.; see also Statewide Grievance Committee v. Sablone, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV92 506144 (9 C.S.C.R. 256, February 17, 1994) (attorney suspended for two years after being convicted of criminal conspiracy and fifty-nine counts of securities fraud); In re Horton, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 357441 (8 C.S.C.R. 376, March 11, 1993) (attorney effectively suspended for three years after conviction of two felony counts of possession of cocaine with intent to sell).

Although the trial court has a broad discretion in these matters; In re Application of Pagano, 207 Conn. 336, 344, 541 A.2d 104 (1988); its judgment must be reversed if there is a “manifest abuse” of discretion *686and “injustice appears to have been done.” (Internal quotation marks omitted.) Grievance Committee v. Nevas, 139 Conn. 660, 666, 96 A.2d 802 (1953). Because I conclude that there has been an abuse of discretion resulting in injustice, I would vacate the three year suspension. During oral argument in this case, even the plaintiff conceded that there was “no precedent for the three year” suspension, and that it was “not the norm” and was “unusual.”

In taking corrective action in this case, our inquiry should focus on the fitness of the attorney to practice law. “Character is not measured in the crucible of a single instance and the assessment for reentry appropriately centers on the question of present fitness.” In re Application of Pagano, supra, 207 Conn. 345. There is nothing in the record to suggest that the defendant is not now fit to practice law. Accordingly, I would reverse the trial court’s judgment to the extent that it provides for a three year suspension and remand this case for reconsideration of the sanction to be imposed.

I respectfully dissent.

The respondent in Statewide Grievance Committee v. Botwick, supra, 5 Conn. L. Rptr. 748, appealed to this court. In Statewide Grievance Committee v. Botwick, 226 Conn. 299, 311, 627 A.2d 901 (1993), this court reversed the trial court’s finding of a rule 8.4 (c) violation because the defendant had not been “fully and fairly apprised of the charge . . . .”