Opinion
No. CV-064026749
October 3, 2007
MEMORANDUM OF DECISION
Before this court is an appeal filed by the plaintiff, Attorney Zbigniew Rozbicki, pursuant to Practice Book § 2-38, challenging the October 20, 2006 decision of the defendant, the statewide grievance committee, to affirm the decision of the statewide reviewing committee dated August 11, 2006. Having found by clear and convincing evidence that the plaintiff was in violation of Rule 3.1 of the Rules of Professional Conduct, the reviewing committee issued a reprimand. The parties argued this matter before the court on July 26, 2007. The court has also reviewed the briefs and the record filed by the parties.
"Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee or reviewing committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) in violation of constitutional, rules of practice or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, rescind the action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the [S]uperior [C]ourt hereunder is a final judgment." Practice Book § 2-38(f).
Our Appellate Court in Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 610-13, (2007) recently engaged in extensive analysis regarding the standard of review articulated in Practice Book § 2-38(f). The Brunswick court held that the "clearly erroneous standard" is the preferable standard of review in attorney grievance appeals. Id., 613. As such, this court reviews the decision of the statewide grievance committee considering whether it is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . ." Practice Book § 2-38(f)(5). See also Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226-27, 890 A.2d 509, cert. denied 127 S.Ct. 157, 166 L.Ed.2d 39 (2006).
"[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor [the Appellate Court] takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof . . .
"[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) Ansell v. Statewide Grievance Committee, 87 Conn.App. 376, 382-83, 865 A.2d 1215 (2005).
This court has reviewed the record thoroughly and concludes that the statewide grievance committee's decision affirming the decision of the reviewing committee was not clearly erroneous. The record supports the statewide reviewing committee's findings of the following facts.
The complainant, John Febroriello, is an attorney and partner of the firm of Febroriello, Conti and Levy. The firm had represented Christina Febroriello, then Christina Yurchick, during her dissolution action resulting in her divorce from the plaintiff's client, John Yurchick, in September 1998. In June 1999, the complainant and Christina Yurchick were in a motorcycle accident together. Subsequently, the complainant and his wife at the time were divorced in December 2001. In the fall of 2002, the complainant married Christina Yurchick in a private civil ceremony, and in January 2003, Christina Febroriello, formerly Christina Yurchick, gave birth to their child. In August 2003, the complainant and his wife celebrated their marriage publicly. Subsequently, in representing John Yurchick in post-judgment dissolution matters, the plaintiff filed a motion to disqualify the complainant's firm and a motion for continuance. The former motion sought disqualification based on the firm's representation of the complainant's wife, Christina Febroriello, who is also the ex-wife of John Yurchick. The complainant thereafter filed the two grievance complaints, which were consolidated before the committee.
In his motion to disqualify filed on July 21, 2005, the plaintiff asserted the firm's conflict of interest, based on the complainant's relationship with its client. While finding the motion to disqualify meritorious on that basis, the statewide reviewing committee found that the motion specifically asserted that Attorney Febroriello "engaged in an illicit and extramarital relationship with his client . . . which continued throughout the pendency of the captioned dissolution action and at some point fathered an illegitimate child with the defendant's ex-wife." Moreover, in his motion for continuance of the motion for contempt filed on July 22, 2005, the plaintiff incorporated the following language: "[t]he illicit relationship continued throughout (the Complainant's) representation of (Christina Febroriello) and produced a child of their bodies . . ."
Rule 3.1 of the Rules of Professional Conduct requires, in relevant part, that attorneys "shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . ." In Texaco, Inc. v. Golart, 206 Conn. 454, 538 A.2d 1017 (1988), our Supreme Court relied on an earlier comment to Rule 3.1 for the definition of a frivolous claim, observing that an appeal is frivolous if maintained "primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." Id., 464. In Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 255, 828 A.2d 64 (2003), the Supreme Court indicated that the test is an objective one.
The reviewing committee found that the plaintiff made a reasonably diligent inquiry and reasonably believed the above assertions to be true, and as such, he was not in violation of Rule 3.3(a)(1) of the Rules of Professional Conduct. With respect to Rule 3.1, however, the reviewing committee found the assertions themselves to be totally unnecessary to the merits of both motions. Moreover, given the inflammatory and provocative nature of the statements, the committee inferred that such allegations were made for the purpose of embarrassing, harassing or maliciously injuring the complainant and as such, were frivolous as to both motions, irrespective of the truth or falsity of the statements.
In reviewing the committee's decision, the court notes that its findings of fact were found by clear and convincing evidence and are clearly supported by the substantial evidence in the record. The record reflects extensive testimony from the plaintiff and, indeed, there is no dispute with respect to the content of the motions. Instead, the plaintiff concedes that the conduct described may indeed be embarrassing to the complainant, but asserts that "embarrassment is and should be a deterrent to antisocial or immoral conduct" and that the complainant's "lifestyle" cannot be deemed acceptable in "one public social context" and embarrassing in another. Plaintiff's brief, pp. 4, 11-12. Such claims, however, fail to persuade this court that the reviewing committee's conclusions of law do not legally and logically follow from their findings of fact, namely that the assertions are wholly irrelevant, inflammatory and frivolous given the purpose of the motions at issue. As such, the decision of the statewide grievance committee is not clearly erroneous and the appeal is dismissed.