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Briggs v. McWeeny
Citations: 260 Conn. 296; 796 A.2d 516; 2002 Conn. LEXIS 179Docket: SC 16515
Court: Supreme Court of Connecticut; May 21, 2002; Connecticut; State Supreme Court
Carole W. Briggs, an attorney, filed a writ of error challenging the findings of Honorable Robert F. McWeeny, who ruled that she violated subdivisions (1) and (6) of rule 3.42 of the Rules of Professional Conduct and subsequently imposed sanctions against her, claiming a violation of her due process rights. She seeks to overturn the trial court's findings of misconduct and the disqualification order preventing her from representing Amity Regional School District Number 5 in a litigation related to a school renovation project. The case's background includes Amity's hiring of Atlas Construction Company for extensive renovations, which were completed in 1995. Following the renovations, Atlas sued Amity for over five million dollars, prompting Amity to counter with claims against Atlas and other contractors for breach of contract and negligence, with Briggs representing Amity. In 1999, Atlas served interrogatories to Amity, requesting reports regarding the school's exterior wall system and mold issues, which Briggs answered without objection. In August 2000, during a repair project, Amity awarded a contract to DiSpazio Corporation for ceiling repairs, during which DiSpazio sought authorization for an engineering study. The resulting report by architect Martin Benassi indicated sagging tiles and water damage, attributing these issues to maintenance practices, contradicting Amity's expert opinions and potentially harming Amity's litigation position against Atlas. After receiving the report, Briggs expressed significant concern about its implications for Amity's case, indicating that it would adversely affect their legal standing and finances. On September 12, 2000, a meeting was held by the plaintiff with attendees including DiSpazio, who refused to withdraw Benassi's report, asserting he would not engage in a cover-up. DiSpazio clarified that the report was final, leading to a contentious exchange with the plaintiff, who later instructed DiSpazio to keep the discussion confidential. DiSpazio subsequently met with his attorney, Joseph Yamin, who communicated to Grignano that DiSpazio would not modify the report nor release it without legal obligation. On September 14, 2000, the plaintiff urged Yamin to have DiSpazio withdraw the report and revise it, which Yamin declined to facilitate. On September 20, 2000, the plaintiff informed DiSpazio and Yamin that Benassi's report had been leaked to the press, despite prior assurances of confidentiality. She demanded assurance that DiSpazio would uphold confidentiality, threatening legal action if not satisfied by day's end. Following the publication of Benassi's report on October 11, 2000, Atlas's counsel requested the report and related documents. The plaintiff stated she would provide all unprivileged documents. On October 16, 2000, Atlas sought to depose DiSpazio Corporation's records custodian regarding the report. The plaintiff moved to quash this notice but later withdrew her motions upon confirming that no notes from the September 12 meeting were available. Yamin ultimately released Benassi's report to Atlas's counsel on October 20, 2000. On October 30, 2000, during a hearing on Amity’s application for a prejudgment remedy in the Amity-Atlas case, Atlas informed the trial court of allegations concerning the plaintiff's attempts to suppress and alter Benassi’s report. In response, the trial court scheduled a hearing and referenced relevant subdivisions (1, 2, and 6) of rule 3.4 of the Rules of Professional Conduct. The court's order allowed for motions regarding sanctions or disciplinary actions against Amity or its counsel. The plaintiff later disclosed Benassi’s report on December 6, 2000, during a scheduled document production. The trial court held hearings on the misconduct allegations on December 12 and 13, 2000, and January 29, 2001. After considering extensive evidence, the court concluded that the plaintiff violated rules 3.4 (1) and (6) but found insufficient evidence for a violation of rule 3.4 (2). The court determined that Benassi’s report had potential evidentiary value regarding significant issues in the case, rejecting the plaintiff's claim that her actions aimed to prevent public embarrassment under the Freedom of Information Act. Instead, the court characterized her attempts to withdraw the report as efforts to conceal evidence and found that she unlawfully obstructed access to it by failing to disclose it promptly, violating Practice Book 13-15. The trial court did not find evidence that the plaintiff altered the report or that Amity terminated its contract with DiSpazio Corporation due to the latter's refusal to withdraw the report, leading to the conclusion that rule 3.4 (2) was not violated. The court also ruled that the plaintiff's instructions to DiSpazio not to discuss the report constituted a violation of rule 3.4 (6), dismissing her argument that the rule did not apply to a former agent. The court noted that the report was not confidential and was discoverable by the defendants. Following the decision, both the plaintiff and Amity filed motions to reargue, claiming violations of the plaintiff’s due process rights due to lack of notice regarding the application of Practice Book 13-15. The trial court denied these motions but addressed the due process claims raised by the plaintiff and Amity. The trial court determined that the plaintiff was adequately notified of the discovery issues leading to misconduct proceedings against her. It found that the hearing order and notice informed the plaintiff about the consideration of relevant rules of practice and professional misconduct, particularly regarding rule 3.4. Prior to the hearing, Atlas and another defendant submitted documents alleging the plaintiff's noncompliance with Practice Book 13-15, which mandates a continuing duty to disclose. During post-hearing arguments, neither the plaintiff nor Amity contested claims of misconduct related to this duty or rule 3.4 (1). Following this, all defendants sought the plaintiff's disqualification as counsel for Amity and requested sanctions, while Amity requested that no sanctions disrupt its ongoing litigation. The plaintiff sought no sanctions or, alternatively, a mere admonition. Ultimately, the trial court disqualified the plaintiff from any involvement in Amity-related litigation. The plaintiff subsequently filed a writ of error, claiming insufficient evidence for the misconduct findings and seeking to overturn her disqualification. Judge McWeeny moved to dismiss the writ, arguing the plaintiff lacked standing and that the disqualification was not a final judgment. The plaintiff contended she was aggrieved due to the sanction's impact on her professional reputation. The court denied the dismissal motion without prejudice, allowing for further jurisdictional arguments. Judge McWeeny's jurisdictional claims challenge the court's subject matter jurisdiction over the plaintiff's writ of error, asserting that the plaintiff lacks standing and that the disqualification order is not a final judgment. The court disagrees with these claims, affirming that the plaintiff's writ is valid. Standing requires a party to demonstrate a specific personal and legal interest in the matter, distinct from a general community interest, and to show that this interest has been adversely affected by the decision. The plaintiff argues that her disqualification, based on professional misconduct, has harmed her legal reputation, thereby entitling her to appellate review regarding potential due process violations. Judge McWeeny cites Crone v. Gill, suggesting the only injury from the disqualification was to Amity's right to counsel, but the court finds this reasoning flawed. In Crone, the disqualified attorney's claim of standing was rejected because attorneys do not have a cognizable right to represent specific clients, regardless of potential reputational harm. The court concludes that the plaintiff has established standing and that her interests warrant consideration of the writ of error. The trial judge did not question the attorney’s integrity but determined that disqualifying the attorney was necessary to prevent future issues related to his cross-examination of a former client. This context suggests that the attorney's reputation was not harmed. In the case of Crone, it was established that an attorney does not have a right to represent a specific client in disqualification matters, and allowing immediate review of such orders could jeopardize the rights of clients and the public, particularly concerning a defendant's right to a speedy trial. Consequently, while a defendant can appeal an attorney's disqualification after a final judgment, the attorney lacks a personal remedy. The current writ of error differs from Crone because the plaintiff’s disqualification was due to professional misconduct rather than a conflict of interest, and it was intended as a sanction. This sanction adversely affects the attorney’s right to practice law, thus entitling the attorney to due process and appellate review. The plaintiff has standing to challenge her disqualification, which is significant because it arises from violations of specific professional conduct rules. Judge McWeeny contends that the disqualification order is interlocutory and not appealable. However, an interlocutory order can be appealed if it terminates a distinct proceeding or definitively resolves the rights of the parties. The court agrees that the disqualification order meets the first prong of the Curdo test, indicating it can be appealed despite Judge McWeeny's objections regarding its timing and connection to the underlying case. The Curdo test's first prong necessitates that the order under appeal must be separate from the main action, enabling the primary case to progress independently. The trial court established a distinct proceeding to address professional misconduct allegations against the plaintiff, ultimately finding the plaintiff in violation of specific rules of professional conduct. Consequently, the plaintiff was disqualified from involvement in any litigation related to Amity, including the Amity-Atlas case. The continuation of the Amity-Atlas litigation despite this disqualification supports the notion of severability. Judge McWeeny argues that the plaintiff's misconduct is too linked to the core issues of the Amity-Atlas litigation to be considered separate; this argument is based on an objection raised by the plaintiff’s counsel regarding the accuracy of a report during the misconduct hearing. However, the misconduct proceeding focused solely on whether the plaintiff attempted to alter or conceal the report, rather than its accuracy. The immediate effect of the disqualification also suggests a lack of intertwining with the underlying case, rendering Judge McWeeny's argument unpersuasive. Regarding the plaintiff's claim of due process violations, the court disagrees, asserting that adequate notice and a meaningful opportunity to be heard are fundamental rights before significant deprival of liberty or property. The court emphasizes the necessity for fair notice and a proper hearing before imposing sanctions, particularly in attorney misconduct proceedings. The notification must be clear enough for the attorney to prepare an adequate defense, but formalities akin to those in civil or criminal trials are not mandated for such complaints. In *Statewide Grievance Committee v. Rozbicki*, it was established that a presentment for attorney misconduct does not need to cite specific sections of the Code of Professional Responsibility, as such references serve to guide the trial court rather than solely define the basis for a finding of guilt. Due process requires that the presentment informs the attorney of the allegations against them. In this case, the trial court's order and notice of hearing clearly indicated that the inquiry focused on the plaintiff's alleged attempts to suppress Benassi’s report, adequately informing her of the issues at hand. The plaintiff's prehearing affidavit demonstrated her awareness that her non-disclosure of the report was central to the proceedings. During the hearing, the plaintiff's counsel acknowledged her responsibility to disclose evidence, confirming that the report had been disclosed. The court rejected the plaintiff's argument that the absence of a citation to Practice Book 13-15 violated her due process rights. Regarding the evidentiary sufficiency of the trial court's findings of violations of subdivisions (1) and (6) of Rule 3.4, the review standard requires determining if the court’s factual basis was supported by evidence and whether the findings were clearly erroneous. The trial court's conclusions are given deference, but will not stand if a clear mistake is evident. The applicable standard of proof for attorney misconduct is clear and convincing evidence, and Rule 3.4(1) prohibits unlawful obstruction of access to evidence or the concealment of documents with evidentiary value. Even an attempt to obstruct access or conceal evidence constitutes a violation of this rule. The trial court determined that the plaintiff violated rule 3.4 (1) on two occasions: first, by attempting to have Benassi’s report withdrawn or treated as a draft, and second, by failing to promptly disclose the report as required under Practice Book 13-15. The court affirmed that Benassi’s report was a document of potential evidentiary value and noted that the plaintiff acknowledged its discoverable nature in her November 30, 2000 affidavit. Although the plaintiff contested the sufficiency of the evidence for the court’s findings, particularly regarding her attempts to alter the report’s status and her failure to comply with disclosure obligations, the court found her arguments unconvincing. The plaintiff claimed the court overlooked the discovery schedule that allowed disclosure by December 6, 2000. However, the court had considered this schedule and rejected the plaintiff's assertion that she intended to comply with it. The court highlighted that a relevant document was not disclosed until late October 2000, only after it was revealed in a newspaper article. Furthermore, the court found the plaintiff’s rationale for attempting to withdraw the report—claiming it was to prevent embarrassment for Amity—lacked credibility. The testimony of the plaintiff's paralegal, Miller, was also deemed untrustworthy due to inconsistencies and demeanor during testimony. The court emphasized its role as the fact finder in assessing evidence credibility and weight. Testimony conflicts allow the trier of fact to favor one version over another, with the trier responsible for evaluating the evidence's probative force. Credibility assessments should be based on firsthand observations of a witness's conduct and demeanor, as an appellate court must defer to the trier's judgment based on this direct observation. The trial court's credibility findings were supported by substantial evidence. The plaintiff argued that the trial court overlooked the absence of a request for Benassi’s report from the defendants in the Amity-Atlas litigation and that there was no expectation for disclosure between August 29 and October 20, 2000. However, evidence showed that the defendants requested the report on October 11, 2000, which coincided with a New Haven Register article discussing it. The request was made under the continuing duty to disclose and was relevant to an upcoming hearing on a prejudgment remedy. The plaintiff acknowledged the report was discoverable but delayed its disclosure until December 6, 2000. The trial court could reasonably conclude that if the plaintiff had not disclosed the report to the defendants by October 20, 2000, they would have been deprived of it in time for the hearing scheduled for October 30, 2000. The court found the plaintiff's arguments unpersuasive and determined that the absence of prejudice does not negate a violation of Rule 3.4(1) concerning the unlawful alteration, destruction, or concealment of documents with evidentiary value. The court established that the plaintiff's actions constituted a violation of the Rules of Professional Conduct without needing to show any resulting prejudice. The plaintiff also argued there was no evidence she treated Benassi's report as a draft. The plaintiff collected all copies of Benassi’s report during the August 29, 2000 facilities committee meeting, motivated by concerns over its content, which she believed could be damaging. DiSpazio testified that at the September 12, 2000 meeting, the plaintiff requested to treat the report as a draft and to rescind it due to ongoing litigation, a request he denied, citing safety concerns. Keane corroborated that the plaintiff indicated the report was incorrect and requested it be labeled as a draft. Yamin also testified that the plaintiff demanded a new report from DiSpazio on September 14, 2000. Testimony indicated that the plaintiff's actions to collect the report stemmed from its contents, and the trial court found merit in this assessment. The court emphasized that the fact-finder is best suited to evaluate evidence and demeanor, and it retains discretion unless there is a manifest abuse that leads to injustice. Furthermore, the plaintiff's claim that her invocation of attorney-client privilege aimed to prevent the report's disclosure was deemed without merit, as reflected in her communication to DiSpazio and Yamin on September 20, 2000. Notification was received that attorney-client privileged information from a meeting on September 12, 2000, has been leaked to the press. It was noted that DiSpazio will not release Benassi’s report to third parties unless legally obligated. The meeting emphasized that the report should not be discussed outside the attendees. Assurance is requested from the client regarding compliance with confidentiality obligations; failure to provide such assurance by the end of the business day may lead Amity to pursue legal action. The court determined sufficient evidence indicated that the plaintiff sought to invoke attorney-client privilege to prevent disclosure of the report. The plaintiff's claim that the trial court lacked legal support for concluding that attempts to unlawfully alter or conceal documents violated Rule 3.4 is addressed by referencing Rule 8.4, which categorizes such actions as professional misconduct. The court confirmed that it found clear and convincing evidence of the plaintiff's violation of Rule 3.4 (1). Furthermore, the plaintiff's assertion that there was no evidentiary basis for the finding of a violation of Rule 3.4 (6) is examined. This rule prohibits a lawyer from requesting non-clients to withhold relevant information unless specific conditions are met. The trial court concluded that the plaintiff's instruction to DiSpazio not to discuss the report constituted a violation of this rule. Given the prior finding of sufficient evidence regarding the plaintiff's instruction, further discussion of this claim is unnecessary. The plaintiff acknowledged that Benassi’s report was not part of any protected legal strategy discussion with DiSpazio during the September 12, 2000 meeting, rendering unnecessary the examination of DiSpazio's status as a former agent of Amity. After reviewing the evidence, the court determined there was sufficient basis for the trial court to conclude, by clear and convincing evidence, that the plaintiff violated subdivisions (1) and (6) of rule 3.4. The court found that the established facts legally supported the trial court's judgment. Regarding the plaintiff's argument that disqualification was an excessive sanction, the trial court relied on the American Bar Association’s Standards for Imposing Lawyer Sanctions. In assessing misconduct, the court considered factors such as the nature of the violation, the attorney's mental state, and the resulting potential or actual injury, along with aggravating and mitigating factors. Aggravating factors included prior disciplinary offenses and bad faith obstruction of the disciplinary process, while mitigating factors encompassed absence of a prior record and personal issues. The trial court concluded that the plaintiff violated rule 3.4 by withholding relevant evidence, which hindered the opposing parties' rights and significantly delayed litigation. Furthermore, the plaintiff's actions were found to compromise the discovery process and the integrity of the judicial system. The trial court found the plaintiff's testimony during the misconduct hearing to be “unpersuasive and self-serving,” leading to the conclusion that she presented a “false defense.” The court noted that the plaintiff's refusal to acknowledge wrongdoing significantly influenced its consideration of aggravating factors. The document emphasizes that appellate courts do not impose sanctions but review trial court decisions with every reasonable presumption in favor of the trial court's actions. The court determined that the plaintiff attempted to alter, destroy, or conceal a report by Benassi, which had potential evidentiary value in the Amity-Atlas litigation, and failed to disclose it as required. Additionally, the plaintiff sought to prevent DiSpazio from disclosing the report. These actions constituted violations of Rule 3.4 of the Rules of Professional Conduct, specifically concerning obstruction and disclosure duties. Consequently, the trial court deemed it reasonable to disqualify the plaintiff from participating in the Amity litigation. The writ of error was dismissed, with concurrence from other justices. Rule 3.4 prohibits unlawful obstruction of access to evidence and requires full disclosure of relevant information. The rules were adopted by the Connecticut Bar Association and approved by the judges of the superior court in 1986. The plaintiff has provided legal counseling to Amity since the late 1980s, focusing on facilities management and school construction projects. The trial court noted the plaintiff's extensive involvement in Amity's repair and maintenance projects, including drafting and reviewing proposals for outside contractors, alongside her paralegal, Eileen Miller. The plaintiff requested the DiSpazio report from ServiceMaster Corporation, Amity's school property manager, as part of a discovery process, citing obligations under Practice Book 13-15 regarding the disclosure of new or previously requested information. The plaintiff appealed a trial court order disqualifying her from participating in any litigation related to Amity, which the Appellate Court dismissed. The court concluded that a writ of error was the appropriate method for the plaintiff to challenge the disqualification, which she pursued to clear her name rather than to regain her role as counsel for Amity. The disqualification order cited violations of the Rules of Professional Conduct, prohibiting the plaintiff from engaging in litigation concerning Amity for a transitional period of up to sixty days, during which she could assist new counsel. The court chose not to impose costs or additional discovery measures as sanctions for the plaintiff’s conduct. Following the disqualification, the trial court informed the statewide grievance committee, which relayed the order to the Office of Lawyer’s Professional Responsibility in Minnesota, where the plaintiff is also licensed; this office has paused any action pending the outcome of the plaintiff's writ of error. Amity's lawsuit against Atlas and other contractors, as well as Atlas's separate lawsuit against Amity, were both resolved and withdrawn after oral arguments regarding the plaintiffs' writ of error. Judge McWeeny noted an objection raised by Elliot concerning Miller's statements in her affidavit, specifically regarding a September 12, 2000 meeting. During this meeting, the plaintiff expressed concerns to DiSpazio about Benassi's report, identifying three main issues: (1) the report was not authorized by Amity, (2) it contained inaccuracies regarding the high school's condition, history, and maintenance procedures, and (3) it reached incorrect conclusions about the high school's state. There was concern that public disclosure of these inaccuracies could lead to negative attention towards Amity and its board members. During the hearing on allegations of the plaintiff's misconduct, opposing counsel questioned Miller about her affidavit statements. The questioning focused on the inaccuracies claimed about the report, but Miller refrained from detailing these due to ethical concerns. Elliot objected, arguing that disclosing such information would breach litigation strategy and work product protections. The opposing counsel insisted that their inquiry was about factual inaccuracies, not strategy. The court acknowledged the complexity of the issue, indicating a need for careful consideration of the boundaries between factual testimony and protected strategic discussions. Connell sought to verify the credibility of the plaintiff regarding discussions about Benassi's report. Elliot clarified that the credibility issue centered on whether the plaintiff made any statements at all. The court permitted questioning about the plaintiff's discussions of the report, confirming she had indeed discussed it with DiSpazio. Judge McWeeny indicated that the plaintiff might not meet the second prong of the Curdo standard because a favorable judgment for Amity could render an appeal of the disqualification order unnecessary. However, given that the plaintiff met the first prong, the court did not need to address the second prong. The plaintiff's due process claim, initially raised in a motion to reargue, was denied by the trial court. The court stated that the moving parties had adequate notice regarding the discovery issue linked to the misconduct proceedings. The notice of hearing referenced Rule 3.4 of the Rules of Professional Conduct, indicating that it would consider relevant rules underpinning potential violations. The trial court identified several instances highlighting the plaintiff's ongoing duty to disclose, including: 1) references to the plaintiff’s failure to comply with discovery requests; 2) the plaintiff's discussion of Benassi’s report in her prehearing affidavit; 3) defendants’ posthearing discussions regarding the plaintiff’s disclosure failures; 4) Amity’s posthearing brief discussing its discovery obligations; and 5) failures to object to arguments regarding misconduct at the posthearing oral argument on sanctions. Ultimately, the trial court concluded that its decision was based on more than a mere technical violation of timely disclosure; it reflected the plaintiff's significant attempt to suppress a document of substantial evidentiary value. The Code of Professional Responsibility was repealed on October 1, 1986, coinciding with the implementation of the current Rules of Professional Conduct. A trial court issued an order for a hearing on allegations of misconduct against the plaintiff, who was accused of attempting to suppress evidence, specifically Benassi’s report, detrimental to Amity's case. The order referenced affidavits from DiSpazio and Yamin, which outlined claims of the plaintiff's actions to conceal the report. The plaintiff’s affidavit indicated awareness of the report's discoverability and an intention to disclose it in all relevant litigation involving Amity. A discussion took place between counsel and the judge regarding the relevance of 1999 documents to a hearing focused on a 2000 incident, with arguments about ongoing disclosure obligations in relation to specific discovery requests. The court acknowledged the need to determine the relevance of the 1999 documents to the current proceedings, emphasizing the obligation to disclose relevant materials when requested. Attorney Elliot affirmed the existence of a continuing duty to disclose information, which is applicable regardless of the presence of specific documents. The court allowed the introduction of the Benassi report, despite its prior disclosure. The term "clear and convincing evidence" was defined as the standard of proof required for the court to establish facts, lying between the standards used in civil cases and criminal prosecutions. Evidence must induce a reasonable belief in the trier of fact that the asserted facts are highly probable. During a Facilities Committee meeting on August 29, 2000, Miller presented a document titled "Amity Senior High School Ceiling System Report," prepared by DiSpazio Corporation and Benassi, detailing moisture issues affecting the high school's ceiling system and recommending replacement options. Miller expressed concerns that the report was unauthorized, contained inaccuracies regarding the school's condition and maintenance, and could lead to negative public perception if disclosed. Additionally, there was an unsigned letter from DiSpazio accompanying the report, which raised questions about its status as a draft or final document. Miller requested DiSpazio to withdraw the report due to these concerns. Concerns were raised about the potential disclosure of a Report under the Freedom of Information Act, which contained inaccuracies that could attract negative media coverage for Amity and its board members. Consequently, a request was made to DiSpazio to withdraw the Report. An unsigned letter from DiSpazio to Keane, dated August 21, 2000, accompanied the Report, leading to a clarification regarding its status. DiSpazio confirmed that the Report was a final product, noting his practice of not signing outgoing correspondence. The affidavit references General Statutes 52-278d(a), which allows for a prejudgment remedy if the plaintiff demonstrates probable cause for a favorable judgment. Testimony from Russell Faroni, chairman of Amity’s facilities committee and a board member, aligned with other witness accounts. Additionally, it was noted that while the trial court followed the American Bar Association’s Standards for Imposing Lawyer Sanctions, these standards have not been formally adopted by state judges.