author:
Palmer, J.
      Berdon, J.,

text:
    Statewide Grievance Committee v. Robert J. Shluger
    (14880)
    Callahan, Borden, Berdon, Katz and Palmer, Js.

      Argued June 3
    decision released August 9, 1994

      John R. Willard, with whom, on the brief, was Robert J. Shluger, for the appellant (defendant).

      Daniel B. Horwitch, statewide bar counsel, for the appellee (plaintiff).
   Palmer, J.

The defendant, Robert J. Shluger, an attorney, appeals from the judgment of the trial court suspending him from the practice of law for a period of three years. The defendant claims that the trial court improperly: (1) considered certain criminal misconduct by the defendant not charged in the presentment; (2) considered prior ethical misconduct by the defendant for which he had been disciplined; and (3) concluded that the defendant’s federal felony conviction warranted his suspension from the practice of law for three years. We affirm the judgment of the trial court.

The facts are undisputed. After the defendant’s graduation from law school and admission to the bar of this state in 1981, he joined the law offices of Michael A. Peck, where he was employed until 1990. While employed by Peck, the defendant filed personal federal income tax returns for the calendar years 1986 and 1988 wherein he intentionally understated his taxable income.

On May 25, 1993, the defendant was charged in the United States District Court for the District of Connecticut with one felony count of willfully making and subscribing to a false income tax return for the calendar year 1988 in violation of 26 U.S.C. § 7206 (1). The defendant entered a plea of guilty to that offense, and acknowledged that he had reported $22,782 in taxable income for 1988, knowing that he had taxable income for that year in the amount of $76,398. On August 23, 1993, he was sentenced to a two year period of probation and ordered to pay any sums due and owing to the Internal Revenue Service.

On October 28, 1993, the plaintiff, the statewide grievance committee, filed a presentment and petition for interim suspension against the defendant in the Superior Court, pursuant to Practice Book § 28B.1. The presentment alleged that the defendant had been convicted of subscribing to a false tax return for the calendar year 1988 in violation of 26 U.S.C. § 7206 (1), a felony, and that he had been sentenced to a term of probation of two years. On December 7, 1993, the trial court conducted a hearing on the presentment and petition. At the hearing, the defendant testified on direct examination that he had twice been reprimanded, once by a local grievance committee and once by the plaintiff, for improper communications with parties whom the defendant knew to be represented by other counsel. The defendant further testified on direct examination that his filing of a false income tax return for the calendar year 1988 had been an isolated instance of the use of poor judgment. Prior to the hearing, however, the defendant had filed with the court an affidavit in which he stated that he had “commit[ted] the act of falsely reporting [his] actual income for the years 1986 and 1988.” (Emphasis added.) On cross-examination, the defendant acknowledged that although he had only been charged with filing a false tax return for 1988, he had also filed a false return for 1986.

The trial court concluded that a “reprimand [of the defendant] would not adequately protect the public and the administration of justice from an attorney who is unlikely properly to discharge his professional duties to clients, the public, the legal system, and the legal profession. [The defendant] has been reprimanded twice previously. He is convicted of a serious crime and admits to a like violation for which he was not charged. The [defendant] is accordingly suspended from the practice of law for a period of three years commencing on February 15, 1994.”

I

The defendant first claims that the trial court, in formulating its judgment, improperly considered his filing of a false 1986 federal income tax return. Specifically, he argues that the court’s consideration of his filing of a false 1986 return deprived him of his right to fair notice of the charges against him because the presentment contained no reference to that conduct. We disagree.

We begin our analysis of the defendant’s claim with a review of the well established principles that govern disciplinary actions against attorneys. Attorney disciplinary proceedings “are for the purpose of preserving the courts from the official ministration of persons unfit to practise in them.” Ex parte Wall, 107 U.S. 265, 288, 2 S. Ct. 569, 27 L. Ed. 552 (1883); Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989). 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.” In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). 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.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Botwick, 226 Conn. 299, 307, 627 A.2d 901 (1993).

Because a license to practice law is a vested property interest, an attorney subject to discipline is entitled to due process of law. In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied, 391 U.S. 961, 88 S. Ct. 1833, 20 L. Ed. 2d 874, modified on other grounds, 392 U.S. 919, 88 S. Ct. 2257, 20 L. Ed. 2d 1380 (1968); Statewide Grievance Committee v. Botwick, supra, 226 Conn. 306. Accordingly, “[bjefore discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights ‘in some substantial manner.’ ” Statewide Grievance Committee v. Botwick, supra, 308, quoting Grievance Committee v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941). With respect to the required notice, the presentment must “be sufficiently intelligible and informing to advise the court of the matter complained of, and the attorney of the accusation or accusations made against him, to the end that . . . the latter may prepare to meet the charges against him . . . ." In re Peck, supra, 88 Conn. 453; Statewide Grievance Committee v. Botwick, supra, 310. Conduct not charged in a presentment, therefore, may not provide the ground for the suspension of an attorney. Statewide Grievance Committee v. Botwick, supra, 311.

Contrary to the claim of the defendant, the presentment need not have included any reference to the defendant’s filing of a false 1986 tax return. The presentment filed against the defendant, in full compliance with Practice Book § 28B.1, properly set forth the ground for the disciplinary action against him, namely, his conviction for filing a false federal income tax return for the calendar year 1988. Because the sole ground for disciplinary action initiated under § 28B.1 is an attorney’s criminal conviction, nothing more than the defendant’s federal tax conviction was required to have been included in the presentment. The trial court, however, was also free to consider other evidence relevant to the defendant’s character, integrity and professional standing; see General Statutes § 51-94; so that it could determine what sanction to impose against the defendant in light of his felony conviction. Statewide Grievance Committee v. Whitney, 227 Conn. 829, 837-38 n.13, 633 A.2d 296 (1993); Grievance Committee v. Sinn, supra, 128 Conn. 426. Because the trial court reasonably concluded that the defendant's filing of a false tax return for 1986 was relevant to those issues, it properly considered that conduct.

The defendant cannot complain that he had not received adequate notice of the issue of his false 1986 tax return, because the defendant himself had brought that fact to the attention of the trial court in his prehearing submission. Moreover, the defendant’s repeated characterization of his felony tax conviction as having resulted from “one isolated act of very poor judgment” prompted the plaintiffs fair cross-examination of the defendant concerning his filing of a false 1986 return, which the defendant again acknowledged. Finally, in view of the fact that the defendant was given a full and fair opportunity to address the trial court’s concerns about the false 1986 return, both at the hearing and again in his posttrial brief, the defendant has failed to demonstrate that he was unfairly prejudiced by the trial court’s consideration of the 1986 return. See Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S. Ct. 1170, 117 L. Ed. 2d 416 (1992).

II

The defendant next claims that the trial court improperly concluded that the defendant’s prior ethical misconduct was relevant to its determination of an appropriate sanction. We do not agree.

Because the defendant had been properly presented for discipline on the basis of his federal felony conviction, the trial court was responsible for evaluating the defendant’s character, integrity and fitness to practice law in order to determine the sanction to impose against him. Evidence of the defendant’s prior ethical misconduct, because of its relevance to those issues, was admissible at the disciplinary proceeding. Statewide Grievance Committee v. Whitney, supra, 227 Conn. 837-38 n.13; see General Statutes § 51-94.

The trial court acted within its discretion in concluding that the defendant’s prior reprimands bore a reasonable relation to the issues before it. Although the defendant claimed that the reprimands were merely the result of unintentional lapses and, as such, were not sufficiently serious to warrant the trial court’s consideration, the court reasonably could have concluded that the defendant’s repeated failure to comport himself as required by the rules governing professional conduct demonstrated a knowing disregard of his ethical responsibilities. Moreover, the trial court could have reasonably concluded that because the defendant had committed these ethical improprieties in close temporal proximity to the criminal tax offenses, the defendant’s criminal and ethical breaches were not, as he contended, isolated occurrences resulting from unrelated lapses in judgment but, instead, a series of violations that together constituted a pattern of misconduct. The trial court reasonably concluded, therefore, that the defendant’s disciplinary history warranted consideration as an aggravating factor.

Ill

The defendant further contends that the trial court abused its discretion in concluding that he was unfit to practice law and in suspending him from the practice of law for three years. We disagree.

“The trial court had inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it. Grievance Committee v. Sinn, [supra, 128 Conn. 422]; Grievance Committee v. Broder, 112 Conn. 263, 266, 152 A. 292 (1930); Grievance Committee v. Ennis, 84 Conn. 594, 602, 80 A.2d 767 (1911); In re Durant, 80 Conn. 140, 147-48, 67 A. 497 (1907).” In re Weissman, 203 Conn. 380, 384, 524 A.2d 1141 (1987). “Long ago, we stated that ‘courts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice.’ In re Peck, [supra, 88 Conn. 457]; see also Statewide Grievance Committee v. Rozbicki, [supra, 219 Conn. 483].” Statewide Grievance Committee v. Botwick, supra, 226 Conn. 307-308. However, “[although 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 discretion . . . .'" In re Application of Pagano, 207 Conn. 336, 345, 541 A.2d 104 (1988), quoting Grievance Committee v. Broder, supra, 112 Conn. 278.

The trial court’s memorandum of decision reflects the court’s careful consideration of the facts relevant to its determination of an appropriate sanction. With respect to mitigating circumstances, the trial court acknowledged that the defendant had presented evidence “which certainly redounds to his credit as a citizen and member of the bar,” including pro bono, charitable and bar association activities. The trial court also concluded that the defendant had enjoyed a good reputation in the community and at the bar, and that he appeared to be remorseful for his illegal conduct. Finally, the trial court considered as a mitigating circumstance the fact that the defendant, since his graduation from law school, had practiced in “an unsavory work environment created by [his] employer.”

The trial court also reviewed the facts that warranted consideration as aggravating circumstances. The defendant had been convicted of filing a materially false federal income tax return for 1988, a serious federal felony punishable by a term of imprisonment of up to three years. This offense was not an isolated occurrence, the defendant having also filed a false tax return for 1986. The defendant did not dispute the fact that he had engaged in this conduct knowingly and willfully, with the specific intent to defraud the Internal Revenue Service. Furthermore, the defendant’s substantial understatement of his taxable income for both 1986 and 1988 had been motivated solely by greed. Finally, the defendant had been reprimanded for professional misconduct on two separate occasions, each involving ethical improprieties. The trial court concluded that the defendant’s repeated criminal and ethical violations constituted a pattern of misconduct for which simply another reprimand would not have been sufficient.

On the basis of the serious and repeated nature of the defendant’s misconduct, the trial court could reasonably have concluded that he was unfit to practice law and, consequently, that a sanction more severe than a reprimand was necessary. Indeed, the conduct that gave rise to the defendant’s federal felony conviction occurred after he had already received at least one reprimand, a sanction that, regrettably, proved insufficient to deter the defendant from future wrongdoing. Moreover, because the crime of subscribing to a false tax return for the purpose of evading taxes is an offense that involves fraud, deceit and dishonesty, the defendant’s conviction for that offense bears directly on his fitness to practice law. See Rules of Professional Conduct 8.4 and comment thereto. The evidence supports the trial court’s determination, therefore, that the defendant’s criminal and ethical misconduct indicated a deficiency of character and integrity incompatible with the high ethical standards required of attorneys who practice before the courts of this state.

Finally, we are not persuaded that the trial court acted unreasonably in imposing a three year suspension of the defendant’s license to practice law. Although a three year suspension will undoubtedly result in hardship to the defendant, of paramount importance in attorney disciplinary matters is “the protection of the court, the profession of the law and of the public against offenses of attorneys which involve their character, integrity and professional standing.” Grievance Committee v. Broder, supra, 112 Conn. 265. The record before the trial court supports its conclusion that the imposition of a suspension of significant duration was necessary in this case to accomplish that end. Accordingly, we conclude that the trial court acted within its discretion in suspending the defendant from the practice of law for three years.

The judgment is affirmed.

In this opinion Callahan, Borden and Katz, Js., concurred.

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). Nevertheless, 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 engaged 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.

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 have 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 and “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 defendant appealed from the judgment of the Superior Court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       That firm later became Peck, Shluger, Coombs and O’Neill.

       During the period of his employment with the law offices of Michael A. Peck and the law firm of Peck, Shluger, Coombs and O’Neill, the defendant was paid a cash salary, with nothing withheld for the Federal Insurance Contributions Act or federal income tax purposes.

       The defendant was not charged with filing a false income tax return for the calendar year 1986.

       Title 26 of the United States Code, § 7206 (1) provides in relevant part: “Any person who . . . [w]illfully makes and subscribes any [tax] return . . . which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 . . . or imprisoned not more than 8 years, or both, together with the costs of prosecution.”

       The defendant was also required to pay the costs of prosecution and a mandatory special assessment of $50.

       Practice Book 5 28B.1 provides in relevant part: “[suspension, disbarment AND UNAUTHORIZED PRACTICE OF LAW]-DISCIPLINE OF ATTORNEYS CONVICTED OF A FELONY IN ANOTHER JURISDICTION
      “(a) An attorney shall send to the statewide bar counsel written notice of his 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. . . .
      “(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 .... 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 Sec. 46B, to protect the client’s and the attorney’s interests.”

       Although the exact dates of the defendant’s reprimands are not contained in the record, the conduct that resulted in the issuance of the reprimands occurred in 1985 and 1987.

       The second of the defendant’s two reprimands resulted from conduct in violation of rule 4.2 of the Rules of Professional Conduct, entitled “Communication with person represented by counsel,” which provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The defendant had earlier been reprimanded for a similar violation of the Code of Professional Responsibility, the predecessor to the Rules of Professional Conduct.

       The trial court was guided, in part, by the American Bar Association’s Standards for Imposing Lawyer Sanctions (Standards) in determining the appropriate discipline. The Standards, originally promulgated in 1986, have not formally been adopted by the judges of this state. Both parties, however, relied on the Standards in their presentations to the trial court and neither party objected to their consideration by the court.
      The Standards provide in relevant part: “3.0 Generally. In 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 potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors. . . . 9.1 Generally. After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose. 9.2 Aggravation. 9.21 Definition. Aggravation or aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed. 9.22 Factors which may be considered in aggravation. 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 .... 9.3 Mitigation. 9.31 Definition. Mitigation or mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. 9.32 Factors which may be considered in mitigation. 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 . . . (j) interim rehabilitation in disciplinary proceedings; (k) imposition of other penalties or sanctions; (Í) remorse; [and] (m) remoteness of prior offenses.”

       The professional rights and obligations of attorneys practicing within Connecticut are governed by the Rules of Professional Conduct, adopted by the judges of the Superior Court in 1986. Matza v. Matza, 226 Conn. 166, 175, 627 A.2d 414 (1993). Rule 8.4 of the Rules of Professional Conduct, which enumerates proscribed attorney conduct, provides in relevant part: “misconduct
      “It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct . . .
      “(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
      “(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”
      In addition, the comment to rule 8.4, which serves as a guide for compliance with that rule, provides in relevant part: “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. . . . 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, 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.” Rules of Professional Conduct 8.4, comment.

       See footnote 7.

       General Statutes § 51-94 provides: “evidence in proceedings to suspend, displace OR remove attorneys-at-law. In any proceeding for the suspension, displacement or removal of an attorney-at-law or to investigate the character, integrity or professional standing of such attorney, evidence tending to show the general character, reputation and professional standing of such attorney shall be admissible.”

       The defendant argues that because he raised the issue of his false 1986 tax return solely for the purpose of demonstrating his remorse, the trial court could only have considered that fact as a mitigating, rather than an aggravating, factor. The defendant, however, has cited no authority for that proposition. Moreover, the trial court, which had broad discretion to evaluate the evidence properly before it, reasonably concluded that the defendant’s filing of a false 1986 tax return constituted an aggravating factor warranting an increase in the degree of discipline to be imposed.

       The defendant did not seek a continuance of the hearing for the purpose of introducing additional evidence about the false 1986 tax return. Indeed, the defendant has failed to articulate how he would have defended the disciplinary action differently had the presentment specifically referred to the false 1986 tax return.

       See footnote 13.

       The fact that the defendant’s criminal misconduct did not directly involve the discharge of his professional duties does not convince us otherwise, especially in light of the nature of his criminal conduct, for “[pjrofessional honesty and honor are not to be expected as the accompaniment of dishonesty and dishonor in other relations. So it is that we, in common with other courts, hold . . . that misconduct, indicative of moral unfitness for the profession, whether it be professional or nonprofessional, justifies dismissal as well as exclusion from the bar.” In re Peck, supra, 88 Conn. 450-51.

       As we stated many years ago, “[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.” In re Peck, supra, 88 Conn. 450.

       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 . . . .”


source: Caselaw Access Project

author: Callahan, J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Eddie Ford
    (14873)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued June 1
    decision released August 9, 1994

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellant (state).

      Robert G. Golger, special public defender, with whom, on the brief, was Howard T. Owens, Jr., for the appellee (defendant).
   Callahan, J.

The defendant, Eddie Ford, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), robbery in the second degree in violation of General Statutes § 53a-135 (a) (1), and tampering with a witness in violation of General Statutes §§ 53a-151 and 53a-8. He was sentenced by the trial court to a term of imprisonment of twenty years for robbery in the first degree, ten years for robbery in the second degree to run concurrently with his first sentence, and five years for tampering with a witness to run consecutively with his other sentences.

The defendant appealed from the judgment of conviction to the Appellate Court. The Appellate Court affirmed the judgment with respect to the conviction of robbery, but a divided court reversed his conviction of tampering with a witness because the majority determined that it had been based on insufficient evidence. State v. Ford, 33 Conn. App. 143, 634 A.2d 1188 (1993). We granted certification limited to the following question: “Did the Appellate Court properly conclude that there was insufficient evidence to convict the defendant of the crime of tampering with a witness, [in violation of] General Statutes §§ 53a-151 and 53a-8?” State v. Ford, 228 Conn. 918, 636 A.2d 849 (1994).

The details of the incident that led to the defendant’s conviction are set forth in the opinion of the Appellate Court; State v. Ford, supra, 33 Conn. App. 145; and may be briefly summarized as follows. On January 30, 1991, the defendant and a companion entered Store 24, located on Broadway Street in New Haven. The defendant placed an item on the counter, pointed a knife at the store clerk, Carlos Robles, and ordered him to open the cash register. When Robles had difficulty opening the register, the defendant handed the knife to his companion, who walked around the counter and threatened to kill Robles if he did not open the register quickly. Becoming impatient, the defendant grabbed the register from the counter and fled the scene. Id.

Regarding the charge of tampering with a witness, Robles testified that he originally had been scheduled to be called by the state to testify in the defendant’s trial on Thursday, June 4, 1992. He also testified that on June 1, 1992, he had received three or four telephone calls in which the callers had threatened that he would be a “dead man” if he testified “on Thursday.” One of these calls was a collect call for which he had accepted the charges. Robles stated that he had not recognized the collect caller’s voice and did not recall the name given by the operator who had handled the collect call, but that he was certain the name was not that of the defendant.

The collect call to Robles was traced to a telephone located in the cellblock at the New Haven community correctional center where the defendant was confined. A captain at the correctional center testified that the defendant and approximately nineteen other inmates had had access to the telephone in the cellblock at the time that the collect call had been made. He further testified that the telephone in the cellblock is intended for inmate use and can be used only for outgoing collect calls. The rules of the correctional center require an inmate to register with a correctional officer before using the telephone in the cellblock, and a correctional officer ordinarily records in a daily log the inmate’s name, cell number and the time the person begins and ends the telephone call. The log is only a “partial record,” however, as the correctional officers may not record each and every telephone call because of their need to attend to other duties that may divert their attention away from the inmates’ use of the telephone. The captain also testified that no collect call to Robles had been recorded in the correctional officer’s log book on June 1, 1992.

The information charged the defendant with two counts of tampering with a witness in addition to the two robbery charges. Count three of the information charged the defendant with tampering relating to an alleged threat by the defendant directed to his former girlfriend. Count four of the information charged tampering relating to the collect call to Robles. At trial, the state did not attempt to prove that the defendant actually had made the threatening telephone call to Robles. Rather, the state argued that the defendant had caused the threatening call to be made by another person. After instructing the jury on count three of the information and explaining the charge of tampering with a witness under § 53a-151, the trial court informed the jury that those same instructions also applied to count four of the information. As to count four, however, the court also instructed the jury on accessory liability under § 53a-8. The jury returned a verdict of guilty on the two robbery counts and on the tampering with a witness charge that related to Robles. The defendant was acquitted of the charge of tampering relating to his former girlfriend contained in count three.

The defendant appealed to the Appellate Court, claiming that his conviction of both robbery in the first degree and robbery in the second degree violated his privilege against double jeopardy, that there was insufficient evidence to convict him of tampering with a witness, and that there was insufficient evidence to support a jury charge of tampering with a witness on the theory of accessory liability. The Appellate Court concluded that there was no double jeopardy violation as to the robbery counts. The court reversed the defendant’s conviction of the tampering charge, however, concluding that there was no evidence that the defendant himself had made the telephone call to Robles and that the jury should not have been instructed on accessory liability because, in its view, the evidence was insufficient to support a guilty verdict of accessory liability for tampering with a witness. State v. Ford, supra, 33 Conn. App. 151. The state conceded in the Appellate Court, and in this court, that it had failed to prove that the defendant personally had made the telephone call in question. The only issue, therefore, is whether there was sufficient evidence for the jury to convict the defendant as an accessory of tampering with a witness.

In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. “ ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991), quoting State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976). The evidence must be construed in a light most favorable to sustaining the jury’s verdict. State v. Carter, supra, 44. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Carter, supra, 44-45; State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984); State v. Gonski, 155 Conn. 463, 468, 232 A.2d 483 (1967); State v. Hayes, 127 Conn. 543, 555, 18 A.2d 895 (1941). Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are “so unreasonable as to be unjustifiable.” State v. Hayes, supra, 555.

“ ‘While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.’ ” State v. Adams, 225 Conn. 270, 276-77, 623 A.2d 42 (1993), quoting State v. Stanley, 223 Conn. 674, 678, 613 A.2d 788 (1992). Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). “But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . [while a] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) State v. Little, supra, 672; State v. Morrill, supra, 611.

We do not sit as the “seventh juror” when we review the sufficiency of the evidence; State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict of guilt beyond a reasonable doubt. Moreover, “[i]n reviewing the jury verdict, it is well to remember that [j jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Little, supra, 194 Conn. 674.

Sections 53a-151 and 53a-8 make it a crime for a person, believing that an official proceeding is pending or about to be instituted, to solicit, request, command, importune or intentionally aid another to induce a witness to withhold testimony from that official proceeding. The issue in the present case, therefore, can be restated as raising the question whether the jury could have drawn reasonable inferences from the evidence presented at trial to enable it to conclude beyond a reasonable doubt that it was the defendant who had caused the threatening collect call to be made to Robles.

The state contends that there was sufficient evidence to support the jury’s conclusion. It claims that the defendant’s conviction was based on reasonable inferences drawn from the evidence presented. We agree.

The evidence demonstrated that Robles had received a collect telephone call from the cellblock in which the defendant was being held, threatening that if Robles testified on Thursday he would be a “dead man.” The jury reasonably could have inferred that the defendant was the only inmate who had a motive to prevent Robles from testifying and to induce another inmate to make a threatening call. Furthermore, the evidence indicated that the caller had more than casual knowledge of the defendant’s case, and particularly of Robles’ involvement. Using its common sense and experience, the jury reasonably could have inferred that, at the relevant time, inmates other than the defendant would not have known that Robles was a key witness for the state who would be testifying against the defendant on Thursday, June 4, 1992. The jury reasonably could have inferred, further, that the defendant intentionally provided the information to the other inmates to solicit, request, command, importune, or intentionally aid one of them in tampering with Robles’ testimony. See General Statutes § 53a-8 (a).

It is significant that the collect call from the cellblock was the first call in a series of threatening calls that included calls that were not made from the cellblock. These three or four calls were directed to the witness at his home just four days before he was slated to testify against the defendant, and were the only threatening calls that he had received relating to the robbery since its occurrence eighteen months earlier. This is significant because it tends to rebut the defendant’s hypothesis that perhaps the call from the cellblock had been made voluntarily by another inmate to curry favor with the defendant or in an effort to inculpate him further. For either of these hypotheses to be reasonable, the other inmate not only would have had to have learned from someone other than the defendant that Robles was scheduled to testify on Thursday, June 4, 1992, but also would have had to time his call, by sheer happenstance, so that it became the first of a series of threatening calls made to Robles on the night of June 1, 1992. Although the defendant’s scenario was a possibility, the jury apparently rejected it. We cannot say that it acted unreasonably in doing so. “Proof of guilt must exclude every reasonable supposition of innocence. ... [A] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) State v. Little, supra, 194 Conn. 672; State v. Morrill, supra, 193 Conn. 611.

While the defendant raised other possible hypotheses to explain the collect call, the jury reasonably could have inferred, on the basis of the totality of the circumstances; see State v. Williams, supra, 169 Conn. 336; that the only person who had the motive, opportunity, and detailed knowledge necessary to contact and threaten Robles was the defendant. A logical inference from the evidence presented was that the defendant solicited, requested, commanded, importuned or intentionally aided another to induce Robles to withhold testimony or otherwise absent himself from the proceedings against the defendant. After reviewing the evidence in the light most favorable to sustaining the jury’s verdict, as we must; State v. Carter, supra, 196 Conn. 44; we conclude that sufficient evidence existed to allow the jury reasonably to have determined that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, supra, 219 Conn. 609.

The judgment of the Appellate Court is reversed with respect to the conviction of tampering with a witness and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion Peters, C. J., and Borden and Nor-COTT, Js., concurred.

Berdon, J.,

dissenting. I agree with the well reasoned opinion of the Appellate Court that the evidence was insufficient to convict the defendant of tampering with a witness. “The due process clause ‘protects the accused against conviction except upon proof [by the state] beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) . . . .” State v. Rouleau, 204 Conn. 240, 252, 528 A.2d 343 (1987). As the Appellate Court correctly noted, proof beyond a reasonable doubt cannot be based on the jury’s “speculation and conjecture”; (internal quotation marks omitted) State v. Ford, 33 Conn. App. 143, 150, 634 A.2d 1188 (1993); but in the present case “it is speculation that the defendant solicited, requested, commanded or importuned another person to make the phone call.” Id., 150-51.

There are two evidentiary deficiencies in the state’s case that I find particularly noteworthy. First, the majority relies heavily on the claim that the jury reason ably could have inferred that the defendant knew that Robles was scheduled to testify against him on Thursday, June 4, 1992. The majority does not explain, however, its failure to point to any evidence that would support this inference. The simple answer is that there is no such evidence and the jury’s “common sense and experience” cannot fill this gap without resorting to pure speculation.

Second, the state passed up the opportunity to admit significant circumstantial evidence that might have taken this case out of the realm of speculation and conjecture. As I noted in my dissent in Ullmann v. State, 230 Conn. 698, 724, 647 A.2d 324 (1994), a related case that was decided on this date the prosecutor did not seek to introduce, through his own testimony and the testimony of prison officials or other witnesses, the following weighty circumstantial evidence: the prosecutor had met with the defendant’s attorney, Thomas Ullmann, on the day of the telephone call to Robles at approximately 4 p.m.; in that meeting, for the first time, he gave Robles’ telephone number to Ullmann; the telephone number was not readily available to the public because it was listed under the name “Santos-Robles” in the telephone directory; approximately two hours later, Ullmann met with Ford in a professional visit at New Haven community correctional center; Robles was a material witness to the prosecution and was scheduled to testify on the following Thursday; none of the other nineteen inmates who had access to the telephone from which the threatening call was made only hours later had any connection to the prosecution of Ford.

I am deeply troubled with this case and the related Ullmann case. In the present case, the majority upholds a conviction for which there was insufficient evidence. In Ullmann, the majority upholds the conviction of a pub-lie defender of criminal contempt for doing what he perceived, and I agree, was professionally required of him. In neither case does this court do justice.

       General Statutes § 53a-134 (a) provides in pertinent part: “ROBBERY in the first degree: class b pelony. (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-135 (a) provides in pertinent part: “robbery in the SECOND degree: class C felony, (a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present . . . .”

       General Statutes § 53a-151 (a) provides: “tampering with a witness: class d felony, (a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.”

       General Statutes § 53a-8 (a) provides: “criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       For instance, according to the daily log for June 1, 1992, nine inmates are still on the telephone.

       The trial court instructed the jury that “[a]ccessory is a criminal participant in the crime. If two or more persons participate in the crime they are equally responsible even though it was the immediate act of only one which brought the crime about. Participate means not only actively sharing in its final commission, but in doing anything to aid or assist the conduct which constitutes the crime. . . . In order to find [that] a person was an accessory under the statute it is not necessary to show an agreement in word or writing. But such an agreement may be inferred from all the circumstances, whether someone is present at the commission of a crime as an accessory to it depends on the circumstances surrounding his presence and his conduct while there. ... If you find that either the defendant or someone acting at Ms direction and sharing in the intent necessary for tampering with a witness made a phone call threatening Mr. Robles, then you can find the defendant guilty . . . .”

       The Appellate Court considered both of the claims regarding the tampering charge together. The certified issue for appeal to this Court was limited to whether there was sufficient evidence to convict the defendant of tampering on an accessory theory of liability.