Opinion
No. HHD X04 CV-06-5015994 S
September 10, 2009
MEMORANDUM OF DECISION
After consideration, the court issues this memorandum of decision concerning the defendants' motion to reargue and/or for reconsideration (#478) (motion to reargue) of part of the court's second memorandum of decision concerning sanctions in this medical malpractice matter, dated June 15, 2009 (#452) (June 2009 decision). The motion to reargue is premised on Practice Book § 11-12. The plaintiffs filed an objection to the motion to reargue and the defendants filed a reply, along with a request for adjudication, on July 28, 2009. Prior to issuing its June 2009 decision, which addressed several motions, the court held hearings on April 7, 2009 and May 1, 2009, at which counsel presented oral argument. The court also considered the parties' extensive substantive written submissions, thirteen in all, including exhibits.
Practice Book § 11-12(c) provides, "The motion to reargue shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted. If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested."
I Second Bite Of The Apple
The appellate courts repeatedly have reiterated the standards which govern reargument or reconsideration. "[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple." (Emphasis in original; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n. 28, 952 A.2d 1 (2008).
"A motion to reargue is not a device to . . . present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n. 39, 919 A.2d 1002 (2007). "Newly discovered evidence may warrant reconsideration of a court's decision. However, [for evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).
"[A]s a general matter, in the absence of the discovery of some new facts or new legal authorities that could not have been presented earlier, the denial of a motion for reargument is not an abuse of the discretion of the trial court." (Emphasis omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 705, 882 A.2d 53 (2005). "[A] motion to reargue cannot be used to correct the deficiencies in a prior motion . . ." Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).
The defendants' presentation in connection with their motion to reargue ignores the settled appellate decisional authority, quoted above, concerning motions for reargument. While the defendants cite Opoku v. Grant, supra, they ignore the Appellate Court's statement at 63 Conn.App. 692-93, that, "[a] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted.) Likewise, although they cite it, they ignore similar language in C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 101 n. 39, quoted above.
In disregarding settled appellate authority concerning motions for reargument, the defendants have submitted a host of new exhibits, which were not previously presented. This extensive presentation does not amount to newly discovered facts. Instead, it represents an impermissible effort at a second bite of the apple. Having received an adverse decision, the defendants may not present evidence which they could have offered prior to the court's adjudication. For example, in their reply to the plaintiffs' objection to the motion to reargue, the defendants refer to a claimed custom and practice of making agreements at a deposition to preserve the record and instruct a witness not to answer, allowing issues to be presented to the court after the deposition. They cite the deposition of non-party Lindsay Elliott, which occurred on April 24, 2009, prior to the second hearing held by the court, on May 1, 2009. This deposition could have been cited prior to the court's June 2009 decision. Similarly, the defendants' reply presents a number of deposition excerpts from other cases which could have been presented previously, rather than in an effort at a second bite of the apple. The court need not consider these exhibits.
In addition, the defendants have ignored this appellate decisional law by claiming, for the first time, in their motion for reargument, that defense counsel's conduct at the deposition of Dr. Kutcher, a defendant, was based on an alleged oral agreement she made with plaintiffs' counsel at that deposition, where they allegedly agreed to reserve for later court review disputes concerning the questions propounded at the deposition by plaintiffs' counsel. Prior to the court's issuance of its decision, the defendants extensively briefed the issues concerning the various disputes which occurred at Dr. Kutcher's deposition, and included the deposition transcript as an exhibit. The alleged agreement was not then raised as an explanation for defense counsel's conduct. Instead, the defendants set forth arguments concerning the deposition testimony and deposition colloquy, question by question, about why they contended that defense counsel's numerous objections, directions to the witness, and oral motions made at the deposition, were substantively well-founded. See defendants' objection and cross motion for sanctions, dated February 24, 2009 (#335); defendants' reply, dated March 5, 2009 (#340). The defendants have not provided any citation to their previous submissions contending that they previously raised this argument.
Also, although defense counsel herself presented oral argument before the court, this new argument about an alleged agreement with plaintiff's counsel was not made before and is advanced without an attempt at explaining the prior failure to raise it. At no point did defense counsel claim that an agreement she made with counsel at the deposition of Dr. Kutcher precluded the court from finding that she unlawfully obstructed the deposition or violated the Rules of Professional Conduct.
The alleged agreement could have been raised before. It does not amount to the presentation of new facts or newly discovered evidence. The defendants may not assert for the first time that the court misapprehended the facts when they did not raise the factual contention previously, during the extensive proceedings which pre-dated the court's decision. The court need not consider this new argument. Raising this argument now is an attempt at a prohibited second bite of the apple.
In addition; the court is unpersuaded by the defendants' post-adjudication attempt to recast what occurred at Dr. Kutcher's deposition as an agreement between counsel. When Dr. Kutcher's deposition was taken in December 2008, the plaintiffs' motion for further sanctions, dated October 28, 2008 (#283), which was based, in part, on defense counsel's conduct at the October 6, 2008 deposition of Dr. Stone, was already pending. In that motion, the plaintiffs put defense counsel on notice of their claims that defense counsel's conduct at Dr. Stone's deposition violated the rules of practice, and the Rules of Professional Conduct. See discussion below, p. 18.
The transcript of Dr. Kutcher's deposition, at page 3, contains usual stipulations, including "that all objections, except as to form and privilege, are reserved to the time of trial." No other agreement as to how to deal with objections is set forth.
The transcript reflects that, in the face of defense counsel's refusals to allow her client to answer questions as to which no protective order was procured, plaintiffs' counsel decided, as to a few questions, not to pursue answers at that time, but to later seek relief from the court. Plaintiffs' counsel did not agree to limit the scope of the relief he would seek. No agreement between counsel as to how to proceed is stated. Those instances did not justify defense counsel's numerous statements that she was orally moving for a protective order, but without contacting the court to seek such relief; her instructions to the witness not to answer; and her telling plaintiffs' counsel to ask his next question, rather than allowing the witness to answer. See June 2009 decision, pp. 5-6.
Further, instead of citing controlling authority which they claim warrants reconsideration of the court's ruling, the defendants cite trial court cases which they could have cited when the issues were briefed before the court rendered its June 2009 decision. For example, at page 10 of their motion to reargue, in attempting to argue that the procedure to follow concerning a deposition in order to assert a motion for a protective order recently has been called into question, they cite Busak v. Obuchowski, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0188494 (December 22, 2004, Hiller, J.) ( 38 Conn.L.Rptr. 436), for the proposition that a protective order issued in advance of a deposition "could only offer vague guidance." This decision is neither controlling, as it is a decision of the Superior Court, nor is it new. "Trial court decisions do not establish binding precedent." McDonald v. Rowe, 43 Conn.App. 39, 43, 682 A.2d 542 (1996). There is no reason why such decisions could not have been cited earlier. The court is not obligated to consider them now. Presenting them now represents another effort at a second bite of the apple.
The defendants also cite Kern v. Gwiazda, Superior Court, judicial district of Hartford at Hartford, Docket No. CV01 0811373 (February 10, 2003, Beach, J.), language from which was previously quoted by this court. There, terming them "draconian," the court denied the requested sanctions of dismissal, evidence preclusion, and "an order that the plaintiff answer every question put to her unless she has specifically obtained a protective order in advance prohibiting such question." Id. No request for an award of attorneys fees was at issue. In contrast to the situation here, the court in that matter was not addressing a pattern of deposition misconduct or violations of a previous sanctions decision. Also, the Kern decision does not contain a discussion of Practice Book § 13-30, which was discussed by this court in its July 10, 2008 decision concerning sanctions and in its June 2009 decision.
Similarly, reargument is not warranted as a result of the defendants' argument that defense counsel's conduct at the depositions, including her oral "motions for protective orders," was in good faith, since she objected to questions put to Dr. Kutcher at his deposition on the grounds that he was not disclosed as an expert, did not consent to offer expert testimony as to the standard of care, and was being asked to offer opinions outside of his area of expertise. The defendants argued the same previously; raising such issues again represents another attempt at a second bite of the apple. The court addressed these contentions previously. See June 15, 2009 decision, pp. 5-6.
The fact that there is case law which holds that a witness may not be compelled to become an expert did not excuse defense counsel from complying with the rules of practice, and this court's explicit directions in its July 10, 2008 previous sanctions decision, concerning deposition procedure and procuring a protective order. See Hill v. Lawrence Memorial Hospital, Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. HHD X04 CV 05 4034622 (June 30, 2008, Shapiro, J.) ( 45 Conn. L. Rptr. 789) (protective order sought in advance of deposition; party cannot usually require an expert to appear and render an opinion, even if qualified to do so, if the expert refuses to offer the opinion voluntarily; scope of deposition limited to factual matters).
The defendants also argue that the Practice Book is silent as to the issue of depositions being held after hours or on weekends where the court may be unavailable to contact in the midst of a deposition for a ruling on a motion for a protective order. As justifications for defense counsel not attempting to call the court for rulings when disputes arose at the deposition of Dr. Kutcher, they assert that the court was unavailable during Dr. Stone's deposition, and that the deposition of Dr. Kutcher was anticipated to last a full day, and lasted one hour and twenty minutes after 5:00 p.m. when they contend that the court would not be available to address any disputes. See motion to reargue, p. 27.
Raising the issue of the court's availability during these depositions represents another attempt at a second bite of the apple. However, it is coupled with the implication that it was not possible to comply with the court's directions, since the court was not available to resolve disputes during the October 6, 2008 deposition of Dr. Stone, and the defendants argue that it was reasonable for defense counsel to assume that the court would have been unavailable during Dr. Kutcher's deposition on December 4, 2008, even though no effort was made to contact the court on that date. The implication appears to be that while, in its July 2008 sanctions decision, the court set forth the procedure to follow in the event of unanticipated disputes at a deposition, it was not possible for counsel to follow it since the court was not available. In their reply (#489), page 5 n. 4, the defendants argue that, since a number of issues that arose at Dr. Kutcher's deposition occurred after 5:00 p.m., it would be impossible to follow the court's "suggested protocol of immediately contacting the court." In the exercise of its discretion, the court addresses these contentions.
First, by terming the court's statements in its memorandum of decision as a "suggested protocol," the defendants once again ignore the court's clear directions in its July 2008 sanctions decision. The court was not providing suggestions. It issued a memorandum of decision which directed counsel as to how to proceed in accordance with the Practice Book.
Second; as stated in the court's June 2009 decision, counsel had several disputes at the October 6, 2008 deposition of Dr. Stone, a non-party witness. Prior to the October 6, 2008 deposition, the court was unaware that the deposition had been scheduled for that date. Although this matter has been the subject of numerous motions concerning discovery and scheduling, counsel made no advance request of the court to be available to counsel on this matter on October 6, 2008. The fact that, on that date, the court was engaged in settlement conferences with other counsel concerning another, scheduled complex litigation matter, and presided at an in-court proceeding concerning that matter, is unsurprising. On October 6, 2008, this Docket's Court Officer informed counsel in this case by telephone that the court was otherwise engaged. Since the parties made efforts to contact the court on that date, the court addressed the merits of the issues raised as to Dr. Stone's deposition in its June 2009 decision, at pages 6-8.
After such disputes occurred at the October 2008 deposition, several of them became the subjects of the defendants' motion for protective order re: plaintiffs' demand for third deposition of Dr. Stone and/or for sanctions, dated October 20, 2008 (#280); and of the plaintiffs' October 28, 2008 motion for further sanctions against defense counsel (#283). In the defendants' motion for protective order, the defendants sought to prevent a third deposition of Dr. Stone. They argued, at page 8, that, at his deposition, the plaintiffs improperly questioned Dr. Stone, who had not been disclosed as an expert witness, concerning the standard of care. Similar disputes reasonably should have been anticipated for Dr. Kutcher's deposition, since he, also, was not disclosed as an expert witness. Such issues could have been addressed to the court in a motion for protective order filed in advance of Dr. Kutcher's deposition, but were not. Where such issues may be anticipated, they should be addressed to the court by motion in advance.
In anticipation of Dr. Kutcher's deposition, the defendants also could have requested the court to place on its schedule that it would be available to counsel on this matter during the deposition of Dr. Kutcher on December 4, 2008. Even though the scheduling of that deposition was the subject of motion practice, they did not do so. By motion dated November 3, 2008 (#285), the plaintiffs sought to compel Dr. Kutcher's deposition, for a full day. The defendants filed an objection, dated November 14, 2008 (#292), in which they objected to a definitive date for that deposition. In a reply, dated November 17, 2008 (#294), the plaintiffs stated that the defendants informed them that an issue had arisen requiring Dr. Kutcher's deposition to be scheduled on December 4, 2008. The court then promptly issued an order, dated November 19, 2008, directing that Dr. Kutcher be deposed on December 4, 2008, and that he should make himself available for a full day. See #285. On December 2, 2008, the defendants filed an objection to the plaintiffs' motion for an expedited order concerning production of documents at Dr. Kutcher's deposition (#298). The court promptly issued an order as to that motion on December 4, 2008, the date that the deposition occurred. See #297.
In neither of their objections to these motions filed in advance of and concerning Dr. Kutcher's deposition did the defendants make a request of the court to schedule availability during the deposition of Dr. Kutcher, either during regular court hours or after those hours. Thus, after participating in Dr. Stone's deposition in October 2008, where disputes arose which resulted in telephoning the court on that date, which became the subjects of motions for a protective order and for sanctions, defense counsel made no effort to request the court to be available during Dr. Kutcher's deposition, including after 5:00 p.m.
No effort was made to contact the court about such disputes on the day of Dr. Kutcher's court-ordered deposition, December 4, 2008. The defendants' arguments about the court's alleged unavailability to address issues at that deposition, and that the court's directions as to how to proceed in the event of disputes at a deposition were impossible to follow, are unfounded.
II Rules of Professional Conduct
In addition, the defendants contend that the court has misinterpreted the Rules of Professional Conduct. They assert that a violation of deposition procedure may not be a foundation for violating Rule of Professional Conduct 3.4(1).
The court is unpersuaded by the defendants' narrow interpretation of Rule of Professional Conduct 3.4. Subdivision (1) thereof provides, in relevant part, that "A lawyer shall not: . . . [u]nlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value." Here, the court found that defense counsel unlawfully obstructed the plaintiffs' access to evidence. Defendants argue that this subsection "is generally only applicable to situations involving the actual destruction, concealment or removal of documentary evidence." (Emphasis in original.) See defendants' motion to reargue, p. 17.
This argument is directly contradicted by the Commentary to Rule 3.4, quoted by the court in its June 2009 decision, p. 9. The purpose of the Commentary is to further explain the Rule. See Burton v. Mottolese, 267 Conn. 1, 44, 835 A.2d 998 (2003). The Commentary provides that the Rule applies also to obstructive tactics in discovery procedure in general, and not just to destruction, concealment or removal of documentary evidence: "[t]he procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like." (Emphasis added.)
The Commentary also states that "Subdivision (1) applies to evidentiary material generally . . ." Evidentiary material includes deposition testimony. See Connell v. Colwell, 214 Conn. 242, 247-52, 571 A.2d 116 (1990) (referring to deposition testimony evidence submitted in opposition to motion for summary judgment); Blinkoff v. OG Industries, Inc., 113 Conn.App. 1, 11, 965 A.2d 556, cert. denied, 291 Conn. 913 (2009) (referring to deposition testimony as evidentiary material).
In their motion to reargue, the defendants cite 2 G. Hazard W. Hodes, The Law of Lawyering (3d Ed. Sup. 2007) ("Hazard") § 30.4, p. 30-5, to support their argument that Rule 3.4(1) has a limited scope. Under "`Unlawful' Destruction and Concealment of Evidence," the treatise discusses Model Rule 3.4(a), which contains the same language as Connecticut's Rule 3.4(1). However, Hazard, at pp. 30-5 through 30-8, does not address the above-quoted Commentary. Rather, its discussion criticizes this subsection of the Model Rules and states that it "concerns the preservation or destruction of evidence and is a corollary of the criminal law, [and] barely warrants inclusion in a code of lawyer conduct." Hazard, p. 30-5.
Thus, while Subdivision (1), in part, concerns the preservation of and destruction of evidence, the Commentary makes it clear that Rule 3.4(1) also concerns obstructive tactics in discovery procedure, such as at a deposition, by which an attorney improperly seeks to hamper a party in its effort to obtain evidence.
The defendants also seek to support their argument about the scope of Rule 3.4(1) by citing a part of Hazard's statement, concerning Model Rule 3.4(c), that "disciplinary action is generally not taken so long as the lawyer acted openly and in good faith." (Footnote omitted.) See Hazard, § 30.7, p. 30-11. Model Rule 3.4(c) is the corollary of Connecticut Rule 3.4(3), which provides that "[a] lawyer shall not . . . [k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]"
In full, the referenced sentence in the treatise is as follows: "Contempt may sometimes be an appropriate remedy even if the lawyer's challenge is ultimately upheld on the merits, whereas disciplinary action is generally not taken so long as the lawyer acted openly and in good faith." (Footnote omitted.) See Hazard, § 30.7, p. 30-11. The statement in Hazard, read in context, relates to a lawyer's challenge to a court's rules or a court order. Here, defense counsel's conduct did not involve such a challenge. She did not challenge the court's July 2008 decision. Rather, in its June 2009 decision, the court found that defense counsel's deposition conduct violated the rules of practice and the court's July 2008 decision, as well as the Rules of Professional Conduct.
The defendants also cite Hazard, § 65-3, p. 65-6, in arguing that Rule of Professional Conduct 8.4 "places an emphasis on knowingly violating the rule." See defendants' motion to reargue, p. 25. That portion of Hazard discusses Model Rule 8.4(a), not Model Rule 8.4(d), which is the counterpart of Connecticut's Rule 8.4(4), and which the court found was violated by defense counsel.
Model Rule 8.4(a) states, "It is professional misconduct for a lawyer to: . . . violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to so, or to do so through the acts of another[.]" (Emphasis added.) In full, the referenced portion in the treatise is as follows: "Model Rule 8.4(a) incorporates each of the previous rules, and makes a violation of any one of them also a violation of Rule 8.4. Subsection (a) also proscribes knowing attempts to violate those other rules, as well as aiding and abetting another lawyer in violation, or inducing another lawyer to violate the rules." See Hazard, § 65.3, pp. 65-5 to 65-6.
In contrast, Model Rule 8.4(d), which contains the same language as Connecticut Rule 8.4(4), provides, "It is professional misconduct for a lawyer to: . . . engage in conduct that is prejudicial to the administration of justice[.]" Concerning Model Rule 8.4(d), Hazard states that it overlaps with Rule 3.4, since "almost all the limits upon advocacy specified [in Part 3 of the Rules of Professional Conduct] are designed to protect the integrity of the justice system." See Hazard, § 65.6, p. 65-11.
As the court explained in its June 2009 decision, at page 8, under Connecticut law, a finding of scienter or bad faith is not required in order for there to be a violation of a Rule of Professional Conduct; a violation may be found where the attorney intended to engage in the conduct for which the attorney is sanctioned. See Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 844, 890 A.2d 622 (2006); Ansell v. Statewide Grievance Committee, 87 Conn.App. 376, 388-89, 865 A.2d 1215 (2005); Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 210-11, 804 A.2d 1027 (2002).
The defendants also argue that the Commentary to Rule 8.4 "specifically states that `[l]egitimate advocacy respecting the foregoing factors does not violate subdivision (4).'" See motion to reargue, p. 26. Once again, reference must be made to the full context. In pertinent part, the Commentary states, "A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates subdivision (4) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate subdivision (4)." An attorney's words or conduct manifesting bias or prejudice are not at issue here.
An attorney's repeated misconduct at a deposition may be found to be part of a deliberate stratagem which amounts to unlawfully obstructing another party's access to evidence, and conduct that is prejudicial to the administration of justice, in violation of Rules of Professional Conduct 3.4(1) and 8.4(4). See Massachusetts Institute of Technology v. Imclone Systems, Inc., 490 F.Sup.2d 119, 125-27 (D.Mass. 2007) (interpreting Massachusetts Rules of Professional Conduct 3.4(a) and 8.4(d), which, in pertinent part, contain the same language as their counterparts, Rules 3.4(1) and 8.4(4) of the Connecticut Rules of Professional Conduct).
The fact that there are few cases in which an attorney's misconduct at a deposition has been found to rise to the level of a violation of the Rules of Professional Conduct is a testament to the fact that the vast majority of practitioners make sure that their conduct conforms to the Rules. That there are few cases of this type does not diminish the court's duty to enforce the standards of attorney conduct. "The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys." Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993).
III Due Process
The defendants also contend that defense counsel was not on notice that the court would allegedly entertain "sua sponte" a finding of a violation of the Rules of Professional Conduct. See motion to reargue, p. 2. They argue that the plaintiffs did not request as relief that the court make findings as to whether defense counsel violated the Rules of Professional Conduct; rather, the defendants argue that the plaintiffs used references to violations of the Rules in support of their request for disqualification. The defendants argue also that basic rules of due process include the rights to be heard through testimony and evidence at a hearing and to provide the court with case law and decisions concerning the Rules of Professional Conduct. Defense counsel asserts that a hearing on possible violations of the Rules of Professional Conduct was not previously provided. See motion to reargue, pages 28-29.
In addition, in the motion to reargue, the defendants assert that the court's June 2009 decision was issued on June 15, 2009, but was yet to be received, although they attach a copy as Exhibit A. See #452, which contains a notation indicating that copies were mailed to parties of record on that date. The defendants were provided with actual notice of the court's decision. A copy was sent to defendants' attorneys' Hartford office, which had appeared in this matter before its Bridgeport office did so.
Courts may not decide, sua sponte, issues which are not properly before them. Reasonable notice of issues to be decided and an opportunity to present claims or defenses are "fundamental tenet[s] of due process." Heim v. California Federal Bank, 78 Conn.App. 351, 364, 918 A.2d 889, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). "The term `sua ponte' is defined as `[o]f his or its own will or motion; voluntarily; without prompting or suggestion.' Black's Law Dictionary (6th Ed. 1990)." Id., n. 24.
"At their core, the due process clauses of the state and federal constitutions require that one subject to a significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard . . . As a procedural matter, before imposing . . . sanctions, the court must afford . . . a proper hearing on the . . . [proposed] sanctions . . . There must be fair notice and an opportunity for a hearing on the record." (Citation omitted; internal quotation marks omitted.) Burton v. Mottolese, supra, 267 Conn. 18-19. "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 489, 500, 970 A.2d 570 (2009).
"In the context of attorney misconduct proceedings, . . . notice must be sufficiently intelligible and informing to advise the . . . attorney of the accusation or accusations made against [her], to the end that . . . [she] may prepare to meet the charges against [her] . . . If this condition is satisfied, so that the accused is fully and fairly apprised of the charge or charges made, the complaint is sufficient to give [her] an opportunity to be fully and fairly heard . . . [A] hearing such as this is not the trial of a criminal or civil action or suit, but an investigation by the court into the conduct of one of its own officers, and . . . while the complaint should be sufficiently informing to advise the . . . attorney of the charges made against [her], it is not required that it be marked by the same precision of statement, or conformity to the recognized formalities or technicalities of pleadings, as are expected in complaints in civil or criminal actions . . . Thus, the notice afforded to an attorney subject to a disciplinary hearing may be oral or written, as long as it adequately informs the attorney of the charges against him or her and allows him or her to prepare to address such charges." (Citations omitted; internal quotation marks omitted.) Burton v. Mottolese, supra, 267 Conn. 20-21.
The history of the various motions adjudicated by the court in its June 2009 decision shows clearly that defense counsel was put on notice of the plaintiffs' contentions that her conduct at the depositions of Drs. Stone and Kutcher violated the Rules of Professional Conduct, by the plaintiffs' motion papers, to which responses were made in briefs, and that she was afforded hearings in court on the issues at which she personally presented arguments in opposition to those claims. At page 8 of its June 2009 decision, the court expressly found that defense counsel was provided with notice. As explained below, the court's rulings as to the plaintiffs' claims were not issued sua sponte.
In the plaintiffs' motion for further sanctions against defense counsel, dated October 28, 2008 (#283) (motion for further sanctions), which concerned the deposition of Dr. Stone, and which was filed before the court-ordered deposition of Dr. Kutcher occurred on December 4, 2008, the plaintiffs alleged that defense counsel violated the Rules of Professional Conduct at the deposition of Dr. Stone. At pages 22-3, they stated, "Attorney Sacco's persistent obstructionist tactics during Dr. Stone's deposition, by `clear and convincing evidence,' were in direct violation of subsections 1, 3, 4, and 6 of Rule 3.4. See Briggs, supra (disqualification of attorney upheld where clear and convincing evidence supported violation of Rule 3.4(1) (6)). Her conduct also violated Rule 8.4(4) which prohibits a lawyer from engaging `in conduct that is prejudicial to the administration of justice.'"
This reference was to Briggs v. McWeeny, 260 Conn. 296, 336, 796 A.2d 516 (2002).
In the defendants' objection to the plaintiff's motion for further sanctions, dated December 12, 2008 (#303), the defendants responded with a detailed argument opposing the plaintiffs' contentions that violations of the Rules of Professional Conduct had occurred, clearly acknowledging that defense counsel was on notice of the claims. For example, at page 20, they stated, "[t]he plaintiffs are claiming that Attorney Sacco violated Rule of Professional Conduct 3.4 as well as Rule 8.4(4) and claim that Attorney Sacco `treats sanctions as the cost of doing business.'" Further on, at page 22, they stated, "Nothing presented by the plaintiffs supports their allegations that Attorney Sacco violated subsections 1, 3, 4, and 6 of Rule 3.4."
On December 29, 2008, in their supplemental memorandum in support of the motion for further sanctions (#310), at page 9, and in their motion to compel Dr. Kutcher to answer deposition questions and for further sanctions (#311), at page 10, the plaintiffs incorporated by reference their previous arguments concerning alleged violations of the Rules of Professional Conduct in their motion for further sanctions against defense counsel. In a reply, dated March 5, 2009 (#340), in which the defendants responded to plaintiffs' contentions concerning defense counsel's conduct at the deposition of Dr. Kutcher, at pages 7-10, the defendants again briefed their opposition to the plaintiffs' claims that defense counsel had violated Rules of Professional Conduct 3.4 and 8.4(4). For example, they stated, at pages 7-8, "[t]he plaintiffs have suggested that Attorney Sacco's actions may rise to the level of a grievable offense in that she purportedly violated Rule of Professional Conduct 3.4 as well as Rule 8.4(4). The plaintiffs have presented no evidence to support their contention that either of these rules has been violated."
That defense counsel was adequately notified of the plaintiffs' claims that her deposition conduct violated the Rules of Professional Conduct, and that those claims were before the court for consideration, is borne out also by the oral arguments which she made to the court in response to the plaintiffs' contentions. At the first hearing, on April 7, 2009, defense counsel argued, "when last year I didn't get disqualified from the case, the next claim that we see today is that I am — I violated the Rules of Professional Conduct." Transcript of April 7, 2009 hearing (Tr. I), p. 17. Further, defense counsel argued that the plaintiffs had not produced evidence that she violated Rule of Professional Conduct 3.4. See Tr. I, pp. 17-18. She also argued that her vigorous defense of her clients did not constitute violations of the Rules. In addition, she stated that if plaintiffs' counsel believed that she violated the Rules of Professional Conduct, they were duty-bound to bring her before the Grievance Committee and that "to utilize the Rules of Professional Conduct as a sword and tactical diversion should not be condoned by the Court." See Tr. I, p. 18. She also requested the court to sanction plaintiffs' counsel for "utilizing the Rules of Professional Conduct, the threat of a grievance, as a tactical maneuver in a civil piece of litigation." See Tr. I, p. 23.
At the second hearing, on May 1, 2009, defense counsel again acknowledged that she was before the court, in part, to respond to the plaintiffs' claims that she had violated the Rules of Professional Conduct. She stated, "In this case, I'm being forced to defend myself in that I'm accused of violating a rule of professional conduct, which devastates me." See Transcript of May 1, 2009 hearing (Tr. II), p. 36. Further, she reiterated her contention that violations of the Rules of Professional Conduct are to be brought before the Statewide Grievance Committee and added, "[h]ad I realized that this — that Mr. Katz [plaintiffs' counsel] considers it a positive thing that he's not moving to have my license revoked, I probably would have gotten counsel to represent me at this hearing." See Tr. II, p. 36. She then presented argument in opposition to the plaintiffs' claims concerning Rule 3.4 of the Rules of Professional Conduct. See Tr. II, pp. 36-8.
Of particular note in refuting defense counsel's contentions that she did not have adequate notice and an opportunity to respond, and that the court acted sua sponte, is the following exchange she had with the court and plaintiffs' counsel at the second hearing, when she began to present argument concerning Rule of Professional Conduct 3.4(2), which concerns falsifying evidence. The court advised her that that subsection was not being raised by the plaintiffs. See Tr. II, p. 38. Plaintiffs' counsel then confirmed that. See Tr. II, p. 38. At page 39, the court reiterated that there was no accusation at issue under Rule 3.4(2). Defense counsel then responded that "[b]ut [Rule 3.4, subsections] 1, 3, 4, and 6 are, Your Honor." See Tr. II, p. 39. She then proceeded to present additional argument in opposition to the plaintiffs' claims that she had violated Rule 3.4. See Tr. II, pp. 40-42.
Defendants' arguments, in their briefs and orally before the court, prior to its adjudication in the June 2009 memorandum of decision, expressly refute their contention that they were never on notice of a possible finding of violations of the Rules of Professional Conduct. Moreover, their reference to the previous sanctions motion, which resulted in the court's July 10, 2008 decision (#270) is likewise unpersuasive. There, at page 21, the court stated that it declined to multiply the attorneys fees awarded since the plaintiffs' motion did not specifically request such relief; rather, plaintiffs' counsel had only raised this suggestion at oral argument, not in the plaintiffs' motion. The defendants had not had the opportunity to prepare to respond to that request. In contrast, as stated above, here, in this second round of sanctions motions, the plaintiffs' motion papers expressly put the defendants on notice of the plaintiffs' contentions concerning claimed violations of the Rules of Professional Conduct, which defendants acknowledged in writing and orally before the court.
Also, the defendants' reply, page 5, claims, without citation to a page reference, that in the plaintiffs' prior motion for sanctions (#204), the plaintiffs "presented similar arguments with respect to alleging violations of the Rules of Professional Conduct." At page 6, footnote 6, the defendants argue that, in the second round of sanctions motion practice, the plaintiffs argued that violations occurred but did not seek a specific ruling concerning same, contending "[t]his is insufficient notice given that a similar argument was made by the plaintiffs in their first motion for sanctions (#204) yet the Rules of Professional Conduct were not at issue. Defense counsel could not know that one decision would have one result while a second would have a far broader scope."
Clearly, the reason why the first decision did not contain findings concerning allegations of violations of the Rules of Professional Conduct was because they were not at issue. No claim was made in the plaintiffs' first motion for sanctions that defense counsel's conduct violated the Rules of Professional Conduct. Rather, the plaintiffs claimed that defense counsel had violated the rules of practice. As discussed above, the second round of sanctions motions expressly contained claims of violations of the Rules of Professional Conduct, which the court addressed. There is no inconsistency in the court's making findings concerning violations of those Rules in its second sanctions decision in June 2009 but not in its July 2008 decision.
It is the court's obligation to adjudicate issues presented by the parties. "Courts are in the business of ruling on litigants' contentions, and they generally operate under the rule essential to the efficient administration of justice, that where a court is vested with jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of the person, it becomes its . . . duty to determine every question which may arise in the cause." (Internal quotation marks omitted.) Ahneman v. Ahneman, 243 Conn. 471, 484, 706 A.2d 960 (1998). As discussed above, the court also has a duty to enforce the standards of conduct regarding attorneys. See Bergeron v. Mackler, supra, 225 Conn. 397.
Here, as explained in its June 2009 decision, adjudication of the issues concerning the Rules of Professional Conduct was integral to the court's consideration of the motions for sanctions. In order to consider whether sanctions were warranted, and, if so, what sanctions were proportional in scope, the court necessarily had to adjudicate the plaintiffs' claims of violations of the Rules of Professional Conduct.
Thus, the court adjudicated the issues concerning the alleged violations of the Rules of Professional Conduct after the plaintiffs put defense counsel on notice of their contentions and after she presented opposition to those claims. The court did not sua sponte issue rulings concerning the Rules of Professional Conduct. The court did not act on its own will or motion, without prompting or suggestion, and without providing defense counsel with both extensive opportunities to brief the issues and to be heard in court. See Heim v. California Federal Bank, supra, 78 Conn.App. 364 n. 24. That defense counsel did not choose to testify at the hearings, to offer the testimony of an expert witness, or to be represented by counsel, were her own tactical decisions. In their March 5, 2009 reply (#340), page 1, the defendants stated that testimony was not required. At the second hearing, the court asked both counsel if they wished to present anything further; both stated that they did not. See Tr. II, p. 56.
Defense counsel was provided with due process. She had notice, and opportunities, through briefing and at the hearings held by the court, to present her opposing testimony, evidence, and argument in response to the plaintiffs' claims. No additional hearing is warranted.
The defendants also request a hearing pursuant to the standing Discovery and Deposition Dispute Order, revised April 29, 2009, issued by the chief court administrator and the chief administrative judge for the civil division, concerning hearings by the presiding judge of the judicial district or a designee on Practice Book Chapter 13 motions directed to discovery or deposition issues, filed within six months of the trial date. As discussed above, the defendants base their motion to reargue on Practice Book § 11-12, not on Chapter 13. The standing order does not require this court to hold a hearing on the motion to reargue.
IV Monetary Sanctions
In their motions papers and at oral argument concerning the motions for sanctions, the defendants did not challenge plaintiffs' counsel's affidavit (#344), in which he set forth the claimed amounts of attorneys fees and costs incurred. Their challenges in the motion to reargue to the calculation of the amounts requested for these items represents another effort at a second bite of the apple.
In its June 2009 decision, pp. 21-24, the court explained its award of attorneys fees and costs. By subtracting amounts claimed for certain time entries and applying percentage reductions, the court reduced the requested attorneys fees of $24,042.00 by over 72%, to $6,564.50, and awarded a part of the reporter's fees. In addition, in the exercise of its discretion, as explained therein, since its previous monetary award in July 2008 evidently was an insufficient deterrence, the court increased the award by 50%, in order to attempt to deter improper conduct in the future.
The defendants assert that no award is warranted, but if any award is made, it should be in the amount of $3,842.37, and should not apply to Dr. Stone's deposition, since they claim that the court found that defense counsel's conduct there was appropriate. The June 2009 decision addressed the merits of disputes at that deposition as to which counsel attempted to call the court for rulings. Separate therefrom, the court found that defense counsel engaged in misconduct at that deposition. See June 2009 decision, p. 8. Since the court already applied appropriate reductions, as explained in its June 2009 decision, no further reduction is warranted. The percentage increase for deterrence also should not be reduced.
CONCLUSION
As discussed above, the court has reconsidered its June 2009 decision and concludes that it was correct when issued. Reargument is not warranted. The motion for reargument is denied.
It is so ordered.