Opinion
No. HHD-CV-09-4045136S
October 14, 2009
MEMORANDUM ORDER RE MOTION TO DISMISS
Upon reviewing all materials submitted by the parties in support of and in opposition to the defendant Statewide Grievance Committee's Motion to Dismiss the above-captioned case for lack of subject-matter jurisdiction, this Court concludes, for the following reasons, that said Motion must be GRANTED:
1. In this case, plaintiff Sheryl Shaughnessy, a Connecticut attorney, seeks to challenge the power of the defendant Statewide Grievance Committee to hear and decide an attorney grievance complaint brought against her by one Anthony Anastasio ("the complainant"), based upon allegations that she engaged in ethical misconduct while acting as a court-appointed guardian ad litem for his minor children. The complainant has alleged, more particularly, and a local grievance panel has found probable cause to believe, that the plaintiff engaged in misconduct by filing a lis pendens and judgment lien on certain real property in Fairfield in an effort to collect fees owed to her by the complainant for her guardianship services.
2. The plaintiff here claims, as she did on a motion to dismiss which she argued unsuccessfully before a reviewing committee of the defendant Statewide Grievance Committee, that Connecticut attorneys who serve as guardians ad litem have absolute quasi-judicial immunity from all legal liability in connection with their guardianship work, including liability for professional discipline based upon violations of the Rules of Professional Conduct committed in the course of such work. On that basis, she argues that the defendant lacks subject-matter jurisdiction over, and thus is utterly without power to conduct any further proceedings on, the underlying attorney grievance complaint against her which is at issue in this case.
3. In support of this claim, the plaintiff has filed a two-count complaint to pursue the following relief. In her first count, she appeals to this Court from the reviewing committee's denial of her motion to dismiss the underlying attorney grievance complaint, assertedly under the authority of Section 2-38 of the Connecticut Practice Book. In that count, she asks this Court, as she asked the reviewing committee before it, to dismiss the underlying attorney grievance complaint on the ground of absolute quasi-judicial immunity. In her second count, seemingly recognizing the procedural inappropriateness of filing her interlocutory appeal from the denial of her motion to dismiss without first exhausting her administrative remedies before the Statewide Grievance Committee, as set forth in Practice Book § 2-38, she asks this Court, in the alternative, to enjoin the Statewide Grievance Committee from conducting any further proceedings on the underlying attorney grievance complaint, also on the ground that she is absolutely immune from professional discipline in connection with her work as a guardian ad litem.
Practice Book § 2-38 provides in relevant part as follows:
(a) A respondent may appeal to the superior court a decision by the statewide grievance committee or a reviewing committee imposing sanctions against the respondent, in accordance with Section 2-37(a). A respondent may not appeal a decision by a reviewing committee imposing sanctions or conditions against the respondent if the respondent has not timely requested a review of the decision by the statewide grievance committee under Section 2-35(g). Within thirty days from the issuance, pursuant to Section 2-36, of the decision of the statewide grievance committee, the respondent shall: (1) file the appeal with the clerk of the superior court for the judicial district of Hartford and (2) mail a copy of the appeal by certified mail, return receipt requested, to the office of statewide bar counsel as agent for the statewide grievance committee and to the office of chief disciplinary counsel.
4. Notwithstanding its denial of the plaintiff's motion to dismiss, the reviewing committee has stayed all proceedings on the underlying attorney grievance complaint to enable the plaintiff to bring this action. It did so, however, without agreeing or consenting to this Court's exercise of jurisdiction over the claims presented in the action.
5. Accordingly, the defendant Statewide Grievance Committee has now moved this Court to dismiss the plaintiff's complaint on the ground that the plaintiff has failed to exhaust her administrative remedies under Section 2-38, to wit: by failing to proceed to a final decision before the reviewing committee on the imposition of sanctions or conditions, or thus to request review of the reviewing committee's decision by the full Statewide Grievance Committee, before commencing this action.
6. In support of this claim, the defendant relies on our Supreme Court's decision in Johnson v. Statewide Grievance Committee, 248 Conn. 87, 95 (1999), wherein it was first established that the doctrine of exhaustion of administrative remedies is applicable to the attorney grievance process. Id. at 101. The plaintiff in Johnson moved to dismiss a grievance complaint at the reviewing committee level on the ground that it was duplicative. The reviewing committee declined to review the plaintiff's motion. The plaintiff then applied for an injunction in the Superior Court, which granted the Statewide Grievance Committee's motion to dismiss for failure to exhaust administrative remedies. In affirming that ruling on appeal, the Supreme Court agreed with the Superior Court that "the plaintiff cannot bypass available administrative remedies simply because of his desire to avoid a public hearing before the reviewing subcommittee." Id. at 107.
7. In this case, the plaintiff has likewise failed to exhaust her administrative remedies, as there remains a multi-step process before the reviewing committee and the Statewide Grievance Committee in which she can assert her defense of immunity and obtain the relief she requests in this case before resorting to this Court for judicial review. In particular, she is entitled to appear before the reviewing committee for a hearing, at which she can raise her defense of immunity to all claims made against her by the complainant. The reviewing committee can then rule on all issues presented to it, including her claim of absolute immunity, and in so doing can determine if there is clear and convincing evidence that the plaintiff violated the Rules of Professional Conduct. If the reviewing committee finds, by that standard, that she committed such a violation and, on that basis, decides to impose professional discipline upon her pursuant to Practice Book § 2-37, the plaintiff can first request a review of the reviewing committee's decision by the entire Statewide Grievance Committee. Thereafter, if she is dissatisfied with the Statewide Grievance Committee's final decision, she can appeal to this Court under Practice Book § 2-38, as she has prematurely attempted to do in this case. On such a ripe and timely appeal, after fully exhausting her administrative remedies, the plaintiff would be entitled to a trial de novo on all the issues presented to and decided by the Statewide Grievance Committee.
8. Although the plaintiff concedes, as she must, that none of the foregoing steps have yet been taken, she insists that this Court's failure to address her claim of immunity at this time will inexorably cause her to forfeit one of the most essential rights to which she is entitled by virtue of such immunity, to wit: her right not to be subjected to defend against a claim of ethical misconduct from which she is absolutely immune. This, she claims, is the reason why the reviewing committee stayed all proceedings on the underlying attorney grievance complaint until she had the chance to file and prosecute this action, and thereby obtain a final judicial determination of her immunity claim.
9. This Court must acknowledge that if the plaintiff's claim of absolute immunity from professional discipline for ethical violations committed while working as a guardian ad litem were colorable, then her insistence upon having a final judicial determination as to the viability of her immunity claim before being required to defend against the attorney grievance complaint on the merits would be well justified. In that event, requiring the plaintiff to assert her claim of immunity in the context of a full contested hearing on the attorney grievance complaint would expose her to one of the very harms from which the grant of immunity was designed to shield her. The question presented by this argument is, therefore, whether or not the immunity from legal liability which the plaintiff and other Connecticut attorneys enjoy when working as guardians ad litem in fact includes immunity from professional discipline based upon ethical violations committed in the course of such work.
10. The answer to this question comes directly from our Supreme Court's decision in Carrubba v. Moskowitz, 274 Conn. 533 (2005), where guardians ad litem were first accorded absolute quasi-judicial immunity from suit in connection with their guardianship work. There, our Supreme Court determined that the "strong medicine" of absolute quasi-judicial immunity was indeed appropriate for court-appointed guardians ad litem based upon the application of the following three-part test:
[1] whether the official in question perform[s] functions sufficiently comparable to those of officials who have traditionally been afforded absolute immunity at common law . . . [2] whether the likelihood of harassment or intimidation by personal liability [is] sufficiently great to interfere with the official's performance of his or her duties . . . [and 3] whether procedural safeguards [exist] in the system that would adequately protect against [improper] conduct by the official. C. Englis, "Mediator Immunity: Stretching the Doctrine of Absolute Quasi-judicial Immunity: Wagshal v. Foster," 63 Geo. Wash. L. Rev. 759, 766 (1995), citing to Butz v. Economou, 438 U.S. 478, 513-17, 98 S.Ct 2894, 57 L.Ed.2d 895 (1978).
Id. at 542-43. (Emphasis added.) Addressing itself to the third part of that test, the Carrubba Court expressly found that absolute immunity is appropriate for guardians ad litem because
there exist sufficient procedural safeguards in the system to protect against improper conduct by attorneys for the minor child. Because the attorney is appointed by the Court, she is subject to the court's direction and may be removed by the court at any time. Additionally, the attorney for the minor-child, just as any other attorney, is subject to discipline for violations of the Code of Professional Conduct.
Id. at 543. (Emphasis added.)
11. So stating the Court made it crystal clear that a guardian ad litem's absolute quasi-judicial immunity from legal liability in connection with her guardianship work does not include immunity from professional discipline for ethical violation committed in the course of that work, precisely because exposure to such discipline is one of the central reasons why the "strong medicine" of immunity was held to be justified in the first place. The courts of other States which have extended absolute quasi-judicial immunity to their court-appointed guardians ad litem have also found support for their decisions in the continuing application of the Rules of Professional Conduct to attorneys exercising such important quasi-judicial responsibilities.
The only reference to the professional duties of an attorney in the out-of-State cases cited in Carrubba v. Moskowitz, supra, 274 Conn. 547, is found in Collins v. Tabet, 111 N.M. 391, 401, 806 P.2d 40 (1991), wherein the Court stated: "The guardian ad litem is more than an adjunct to the court. He is the attorney for the children and their interests. He must perform his duties in accordance with the standards of professional responsibility adopted by this court." (Internal quotation marks omitted.), quoting de Montigny v. de Montigny, 70 Wis.2d 131, 141, 233 N.W.2d 463 (1975).
Other decisions not mentioned in Carrubba v. Moskowitz, supra, 274 Conn. 574, refer to the guardian ad litem's continuing responsibilities under the Rules of Professional Conduct in holding that a guardian enjoys absolute quasi-judicial immunity. In Page K.B. v. Molepske, 219 Wis.2d 418, 434, 580 N.W.2d 289 (1998), the Supreme Court of Wisconsin stated: "[A] number of mechanisms, aside from civil liability, exist to prevent and punish abuse, misconduct, and irresponsibility on the part of a GAL appointed under [Wisconsin statute]. First, the GAL must be an attorney admitted to practice in this state . . . who is therefore bound by, and subject to reprimand for violating the Rules of Professional Conduct." (Internal citations omitted.) Likewise, in McKay v. Owens, 130 Idaho 148, 158, 937 P.2d 1222 (Idaho 1997), the Supreme Court of Idaho explained that "granting quasi-judicial immunity to a guardian does not leave the parties without recourse. The attorney-guardian is still subject to the Idaho Rules of Professional Conduct." Lastly, Missouri also recognized the safeguard provided by the rules of Professional Conduct in State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 386 (Mo.Ct.App. 1993), wherein the court stated: "Extension of judicial immunity to guardians ad litem in custody matters does not . . . remove all accountability. There are numerous mechanisms in place to prevent abuse and misconduct. Attorney guardians remain subject to the Rules of Professional Conduct."
12. For all of the foregoing reasons, the Court hereby finds that it lacks subject-matter jurisdiction over the plaintiff's pending appeal and accompanying claim for injunctive relief, both because the plaintiff has failed to exhaust her administrative remedies before the reviewing committee and the full Statewide Grievance Committee, and because she has failed to plead a colorable claim of absolute quasi-judicial immunity which, if established, would bar all disciplinary proceedings against her based upon her conduct as a guardian ad litem. The immunity afforded her by Carrubba simply does not extend to "professional discipline for violation of the Rules of Professional Conduct." Id.
Accordingly, the defendant's Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED this 14th day of October 2009.