LAVINE, J.
The defendant, Benson A. Snaider, formerly of the Connecticut bar, appeals from the judgment of the trial court rendered after the court accepted his resignation from the bar and imposed discipline pursuant to Practice Book § 2-47(d). On appeal, the defendant claims that (1) the court's acceptance of his resignation constituted a final judgment and therefore the court (a) had no authority to impose discipline on him, and thereby (b) denied him due process of law, and (2) the court imposed discipline that is unfair and unreasonable given his age, namely, seventy-five years old. We disagree with the defendant and, thus, affirm the judgment of the trial court.
The following facts are relevant to our resolution of the defendant's appeal. On October 13, 2011, pursuant to Practice Book § 2-42,
The court scheduled a hearing on the presentment to be held on November 16, 2012. On October 26, 2012, however, the defendant submitted to the Superior Court his resignation from the bar without conditions.
The parties appeared before the court on April 29, 2013. The plaintiff presented evidence of aggravating factors with regard to the defendant's misconduct and argued that he should not be permitted to apply for readmission for twelve years. The defendant presented no evidence but argued that, given his age and the fact that he had practiced law for fifty years without misconduct, he should be permitted to apply for readmission to the bar in five years. The court issued its order on May 8, 2013, prohibiting the defendant from applying for readmission to the bar for twelve years from April 29, 2013.
Before we address the defendant's specific claims on appeal, we set forth the overarching principles articulating the relationship between the Superior Court and members of the bar. "The Superior Court possesses inherent authority to regulate attorney conduct and to discipline the members of the bar.... The judiciary has the power to admit attorneys to practice and to disbar them ... to fix the qualifications of those to be admitted... and to define what constitutes the practice of law.... In the exercise of its disciplinary power, the Superior Court has adopted the Code of Professional Responsibility [now Rules of Professional Conduct]." (Citations omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 553-54, 663 A.2d 317 (1995).
"Disciplinary proceedings are for the purpose of preserving the courts from the official ministration of persons unfit to practice in them." (Internal quotation marks omitted.) Ex Parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 27 L.Ed. 552 (1882). "The proceeding to disbar [or suspend] an attorney is neither a civil action nor a
The defendant first claims that, after it accepted his resignation from the bar pursuant to Practice Book § 2-52, the court improperly modified its judgment by disciplining him, i.e., ordered that he was not permitted to apply for readmission to the bar for twelve years, pursuant to Practice Book § 2-47(d). We disagree, concluding that the court's order disciplining the defendant is consistent with the comprehensive disciplinary scheme established to safeguard the public and the court from unfit practitioners. See Massameno v. Statewide Grievance Committee, supra, 234 Conn. at 554, 663 A.2d 317. Moreover, a presentment is justiciable if the alleged misconduct occurred prior to the attorney's suspension or disbarment on an unrelated matter. See Statewide Grievance Committee v. Burton, 88 Conn.App. 523, 524-33, 871 A.2d 380 (2005) (trial court had jurisdiction to adjudicate presentment of disbarred lawyer), aff'd, 282 Conn. 1, 917 A.2d 966 (2007).
"[A] challenge to the personal jurisdiction of the trial court is a question of law, and, therefore, our review is plenary." Investment Associates v. Summit Associates, Inc., 132 Conn.App. 192, 202, 31 A.3d 820 (2011), aff'd, 309 Conn. 840, 74 A.3d 1192 (2013).
The following additional facts are relevant to our resolution of this claim. During the November 21, 2012 hearing, the court accepted the defendant's resignation from the bar and stated: "The court will accept the resignation, and again, I'm going to hear argument as I understand it on when [the defendant] could apply for readmission...."
After the court inquired whether there were questions, counsel for the defendant argued that, because the defendant had resigned from the bar, the court lacked jurisdiction to enter an order of discipline. Moreover, he argued, it is the responsibility of the Connecticut Bar Examining Committee to determine if the defendant may ever apply for readmission. The court stated that it would retain jurisdiction and that it would hear argument as to when the defendant could apply for readmission. The plaintiff was seeking a twelve year period and the defendant was willing to accept a five year period. The defendant also continued to argue, on the basis of his resignation, that a final judgment had been rendered, and the court no longer had jurisdiction over him. The parties briefed the issue of jurisdiction and appeared before the court to argue the matter on March 26, 2013. The court concluded that
On April 29, 2013, the court heard evidence presented by the plaintiff, including evidence that the defendant had been charged with larceny in the first degree for allegedly misappropriating the funds of a second client, and heard argument from both counsel as to when the defendant should be permitted to apply for readmission. The court issued an order on May 8, 2013, stating, in part, that it had jurisdiction to adjudicate the presentment and that the defendant "is not eligible to apply for readmission to the Connecticut [b]ar for a period of twelve years from April 29, 2013. He will be subject to the imposition of such conditions upon his application for reinstatement as may be deemed appropriate at that time." See footnote 7 of this opinion.
On appeal, the defendant argues that, at the time his resignation was before the court, the court could have pursued one of several options: (1) defer ruling on his resignation until it had heard evidence and argument with regard to further sanctions; (2) decline to accept the resignation and adjudicate the presentment pursuant to Practice Book § 2-47(d); or (3) decline to accept his resignation unless it included a satisfactory limitation on his right to apply for readmission. It is the defendant's position that, when the court accepted his resignation, it rendered a final judgment, which defined his rights and status, and any further action by the court as to him constituted a modification of the judgment.
The defendant grounds his claim, in part, in Practice Book (2012) § 2-52(b), which was in effect at the time of the November 21, 2012 hearing.
To support his argument, the defendant relies on one of the tenets of statutory construction: "[w]here a statute, with reference to one subject contains a given provision, the omission of such provision for a similar statute concerning a related subject ... is significant to show that a different intention existed." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Consequently, the defendant concludes that because the court accepted his resignation pursuant to Practice Book (2012) § 2-52(b), it was powerless to impose disciplinary sanctions that he did not volunteer in his resignation.
We disagree with the defendant because Practice Book §§ 2-47(d) and 2-52(b) are functionally different. Section 2-47 is the method by which alleged attorney misconduct is brought to the attention of the Superior Court by the disciplinary counsel. Section 2-52 is an option available to an attorney under investigation by a grievance panel, reviewing committee or the Statewide Grievance Committee or against whom a presentment for misconduct is pending to resign from the bar without a trial. In his case, the defendant exercised his option to resign from the bar. His resignation, however, did not foreclose the imposition of discipline. Moreover, under our common law, the court has broad discretion to discipline an attorney to protect the court from individuals who are unfit to practice law. See Massameno v. Statewide Grievance Committee, supra, 234 Conn. at 553-54, 663 A.2d 317.
"There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court." In the Matter of Presnick, 19 Conn.App. 340, 347, 563 A.2d 299 (1989), cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). "That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs as to achieve an orderly and expeditious disposition of cases." Id. "[R]eference to specific rules does not constitute the only basis for
Our conclusion that the court had jurisdiction over the defendant to impose discipline after it accepted his resignation is controlled by this court's decision in Statewide Grievance Committee v. Burton, supra, 88 Conn.App. at 523, 871 A.2d 380. In Burton, this court determined that the trial court had subject matter jurisdiction over "an attorney who was disbarred subsequent to the events alleged in the presentment... because the issue is justiciable." Id., at 524, 871 A.2d 380. In the present case, the misconduct alleged in the presentment, also, was justiciable.
Burton concerned an attorney who had been disbarred in 2001 for misconduct related to a civil action commenced later than December, 1999. Burton v. Mottolese, 267 Conn. 1, 3, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). In January, 2004, the Statewide Grievance Committee filed a presentment against Nancy Burton for misconduct that occurred in 1995. Id. Burton filed a motion to dismiss the presentment claiming that the trial court lacked subject matter jurisdiction because she was no longer a member of the bar. Statewide Grievance Committee v. Burton, supra, 88 Conn.App. at 524, 871 A.2d 380. The trial court agreed and dismissed the presentment. The Statewide Grievance Committee filed an appeal to this court, which reversed the judgment of dismissal, concluding that the issue of Burton's alleged 1995 misconduct was justiciable in that an adjudication of the presentment would provide both actual and practical relief to the parties. Id., at 531, 871 A.2d 380. This court's reasoning in Burton informs our analysis in this case.
The Burton presentment "concerns an incident that occurred in 1995, alleging misconduct that occurred before [Burton] was disbarred. [General Statutes § 51-90e] and Practice Book § 2-47 concern the misconduct of attorneys. [E]ach disciplinary action must be decided on its own particular facts in order to determine the appropriate discipline.... We therefore conclude that the court can adjudicate the 1995 incident to determine whether [Burton's] alleged conduct was, in fact, misconduct. That determination can be made irrespective of [Burton's] current status." (Citations omitted; internal quotation marks omitted.) Id., at 529-30, 871 A.2d 380.
A comprehensive disciplinary scheme exists "to safeguard the administration of justice, and [is] designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners." (Internal quotation marks omitted.) Id., at 530, 871 A.2d 380. "An attorney, as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited.... Therefore, [i]f a court disciplines an attorney, it does so not to mete out punishment to an offender, but [so] that the administration of justice may be
In Burton, this court noted that a person who has been disbarred has the right to apply for readmission pursuant to Practice Book § 2-53 and that the Superior Court may reinstate, as an attorney-at-law, a person who has been disbarred. Id., at 531, 871 A.2d 380. Under the terms of Burton's disbarment, she had the right to apply for readmission after five years. "The appropriate inquiry when deciding whether to grant admission to the bar is whether the applicant has present fitness to practice law.... Fitness to practice law does not remain fixed in time." (Emphasis in original; internal quotation marks omitted.) Id.
In Burton, this court concluded that there was a practical benefit to both Burton and the Statewide Grievance Committee to resolve the matter concerning the 1995 conduct sooner, rather than later. Id. "A resolution of the controversy also will benefit the courts and the public, the third party beneficiaries of our attorney disciplinary system. If, and when, [Burton] seeks to apply for readmission to the bar, [her] record before the bar admission committee will be more complete if this matter is adjudicated. The issue to be decided is whether [Burton's] conduct with respect to the 1995 incident violates our code of professional conduct.
"With respect to [Burton], we foresee a possible impediment to her applying for readmission to the bar if the 1995 incident remains unresolved. We cannot anticipate how the absence of a decision will be considered by the bar examining committee that would review [her] application for readmission. Alternatively, if [Burton] is readmitted to the bar, will she immediately be faced with a presentment related to the 1995 incident?" Id., at 531-32, 871 A.2d 380. Moreover, the Superior Court is not limited to suspending or disbarring an attorney from the practice of law. Id., at 532, 871 A.2d 380. "Practice Book § 2-47(a) does not limit the Superior Court to those two forms of discipline, as it may impose `such other discipline as the court deems appropriate.'" Id.
For the same reasons, the court here had jurisdiction to adjudicate the defendant's presentment, despite the fact that he voluntarily had resigned from the bar. Although the defendant had resigned, there was no finding by the court as to the presentment allegations of misappropriation and what discipline, if any, should be imposed. Practice Book § 2-47(b) provides: "The sole issue to be determined in a disciplinary proceeding predicated upon conviction of a felony, any larceny or crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed shall be the extent of the final discipline to be imposed."
In the trial court and in this court, the defendant stated that he had lived his life as an attorney and wanted to die as an attorney. Given his age, the defendant asked that he be permitted to apply for readmission to the bar sooner rather than later.
The defendant's second claim is that the court denied him due process of law by imposing discipline beyond that contained in his letter of resignation. We disagree.
"Procedural due process is a required constitutional right adhering to those attorneys who are subject to disciplinary actions so that they are not unjustly deprived of their reputations or livelihoods.... A defendant attorney is entitled to notice of the charges and a fair hearing." (Citation omitted.) Statewide Grievance Committee v. Gifford, 76 Conn.App. 454, 461, 820 A.2d 309 (2003).
In this case, the court held a hearing on the application for an order of interim suspension of the defendant's license to practice law. Thereafter, pursuant to the plaintiff's request, the application was amended to a presentment. The defendant did not object to the presentment, but chose to resign from the bar. Immediately after accepting the defendant's resignation, the court stated that it would retain jurisdiction to determine the discipline to be imposed. The court afforded the defendant the opportunity to brief the question of its jurisdiction and a hearing. The court also provided the defendant with an opportunity to present evidence related to mitigating factors to consider regarding discipline.
The defendant predicates his claim on the 2013 amendments to Practice Book (2013) § 2-52, particularly the addition of subsection (e), which provides: "Acceptance by the court of an attorney's resignation from the bar without the waiver of right to apply for readmission to the bar at any time in the future shall not be a bar to any other disciplinary proceedings based on conduct occurring before or after the acceptance of the attorney's resignation." The defendant argues that subsection (e) broadens the power of the trial court to impose new disciplinary sanctions on a resigning attorney after the court accepts the resignation. That language, the defendant argues, is substantive in nature and may be applied prospectively only. We disagree with the defendant's claim, as the sanction imposed by the court was imposed pursuant to the misconduct alleged in the presentment complaint; see Practice Book § 2-47(d); about which the defendant had fair notice and a hearing. See Statewide Grievance Committee v. Botwick, supra, 226 Conn. at 308, 627 A.2d 901.
We agree that an attorney against whom misconduct is alleged in a presentment has the option to resign from the bar. See Practice Book § 2-52. The resignation from the bar, however, does not terminate the presentment proceeding in its entirety. It only terminates a part of the process by sparing the attorney from a trial as to the misconduct alleged in the presentment. The court is endowed with authority to impose discipline pursuant to Practice Book § 2-47(d).
Our case law holds that an attorney faced with allegations of misconduct is entitled to notice and a hearing. See In the Matter of Presnick, supra, 19 Conn. App. at 349, 563 A.2d 299. The application for an order of interim suspension and subsequent presentment gave the defendant notice of the allegations of misconduct against him. Our review of the transcript of the proceedings before the court indicate that the court afforded the defendant a hearing on multiple occasions, the opportunity to brief his legal claims, the opportunity to present evidence, and the opportunity to argue to
The defendant's last claim is that the discipline imposed by the court is unfair and unreasonable. We do not agree.
"As long as there is no denial of due process, we conclude that this court may, for good cause, discipline attorneys who practice before it by suspending them from practice in this court for a reasonable and stated period." In the Matter of Presnick, supra, 19 Conn.App. at 349, 563 A.2d 299. The substance of the plaintiff's claim is that given his age, a twelve year prohibition against applying for readmission to the bar, may constitute permanent disbarment, which is contrary to our law. "Connecticut does not acknowledge permanent disbarment. Permanent does not mean forever. [D]isbarment is not punishment for a crime, but, rather the withdrawal of a privilege...." (Internal quotation marks omitted.) In re Application of Avcollie, 43 Conn.Sup. 13, 20, 637 A.2d 409 (1993).
We acknowledge the legal precept cited by the defendant, but the fact that he was seventy-five years old when the court imposed discipline in May, 2013, is not relevant to our review of the court's exercise of discretion in imposing a term of twelve years before the defendant may apply for readmission to the bar. The relevant facts are the defendant's misconduct.
Our review of the trial court file discloses that it states that the case was disposed of on November 21, 2012, and that a final judgment was rendered on that date. See footnote 8 of this opinion. There are clerical errors in the record as to when final judgment was rendered and the case disposed of. Pursuant to our supervisory powers; see Practice Book § 60-2; we direct the court to order a rectification of those clerical errors in the trial court file so that the file conforms to the facts and the law.
The judgment is affirmed and the case is remanded with direction to order a rectification of the trial court record in accordance with this opinion.
In this opinion the other judges concurred.
"(b) The court, after hearing, pending final disposition of the disciplinary proceeding, may, if it finds that the lawyer poses a substantial threat of irreparable harm to his or her clients or to prospective clients, enter an order of interim suspension, or may order such other interim action as deemed appropriate. Thereafter, upon good cause shown, the court may, in the interest of justice, set aside or modify the interim suspension or other order entered pursuant hereto...."
"(b) The sole issue to be determined in a disciplinary proceeding predicated upon conviction of a felony, any larceny or crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed shall be the extent of the final discipline to be imposed."
"This court does have jurisdiction over this matter. By way of background the [defendant] admitted the misappropriation of [a] client['s] funds in the approximate amount of $800,000. He entered a guilty plea to larceny in the first degree in Stamford Superior Court in 2012. He was not sentenced to prison. He received a suspended sentence.
"Subsequent to his conviction in Stamford, he was arrested for misappropriating $175,000 from another client. This larceny in the first degree charge is currently pending against the [defendant] in Milford Superior Court.
"[The defendant] is a convicted felon who stole approximately $800,000 from a client in Stamford. There has been a probable cause finding that he stole another $175,000 from a client in Milford.
"He has intentionally misappropriated substantial amounts of his clients' funds for his own purposes. He has caused substantial injury to his clients. He is very fortunate, as of now, not to be incarcerated. He poses a substantial threat of harm to any prospective client.
"The [defendant] is not eligible to apply for readmission to the Connecticut [b]ar for a period of twelve years from April 29, 2013. He will be subject to the imposition of such conditions upon his application for reinstatement as may be deemed appropriate at that time."
"The court hereby retains jurisdiction concerning this matter."
The defendant attempts to bolster his final judgment argument by pointing out that on November 21, 2012, after the court accepted his unconditioned resignation, a notice from the court issued on a preprinted form entitled "FINAL JUDGMENT." The notice states, in part: "Judgment without trial for ... Other (JWT)." The notice indicates that it was sent to counsel on "12/21/12."
Our review of the electronic file indicates that the signature at the bottom of the page entitled Final Judgment is illegible and none of the boxes indicating who signed the form is checked, i.e., assistant clerk, court officer, caseflow coordinator. See part IV of this opinion.
"(b) Such resignation shall be in writing signed by the attorney, and filed ... with the clerk of the superior court in the judicial district in which the attorney resides.... Such resignation shall not become effective until accepted by the court after a hearing following a report by the statewide grievance committee, whether or not the attorney seeking to resign shall, in the resignation, waive the privilege of applying for readmission to the bar at any future time."
In response to this argument, the plaintiff contends that the additional language does not change the court's ability to impose sanctions on an attorney who has resigned from the bar in 2012. The plaintiff draws our attention to the official commentary to Practice Book (2013) § 2-52(e), which provides in relevant part: "The amendments ... require the court to make a finding of misconduct before it can accept the resignation. This amendment is necessary to assure that lawyers who resign and waive here in Connecticut will be subject to a finding of misconduct, which will be useful to disciplinary authorities in other jurisdictions where the attorney is admitted or may seek admission. Currently, some states do not consider a resignation and waiver without a finding of misconduct as the imposition of discipline. As a result, attorneys who have resigned and waived here in the face of allegations of very serious misconduct have been allowed to retain their licenses in other states, such as New York."
The 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; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; [and] (j) indifference to making restitution." (Internal quotation marks omitted.) Id.
The 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; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses." (Internal quotation marks omitted.) Id., at 55-56, 835 A.2d 998.