Opinion
No. CV05-4012328 S
March 3, 2011
MEMORANDUM OF DECISION
BACKGROUND
On November 1, 2006 the Superior Court, Lager, J., suspended Rebecca Johnson from the practice of law for a period of eighteen months. This suspension was to run after the completion of a prior suspension that had been imposed by Judge Robaina.
Rebecca Johnson has a significant history of actions taken against her including complaints for violating the Rules of Professional Conduct. She has been reprimanded five times, and on two prior occasions in 2002 and 2004 she has been suspended from the practice of law.
Rebecca Johnson appealed Judge Lager's suspension order. Judge Lager's decision was affirmed by the Connecticut Appellate Court, Statewide Grievance Committee v. Johnson, 108 Conn.App. 74, 946 A.2d 1256, cert. denied, 288 Conn. 915, 954 A.2d 187 (2008).
This application for reinstatement was filed on March 27, 2009. The application was referred to the New Haven County standing committee on recommendations for admission to the bar by Judge Lager.
Attorney Steven Errante, acting chairman of the standing committee, issued a report dated October 18, 2010, which finds the applicant fit to resume the practice of law, but only if she is working at an established law office, government entity or the like, where she can be mentored for a period of two years. The committee would not be willing to recommend that she be allowed to practice on her own without supervision. A hearing on the committee's recommendation was held on December 13, 2010 before the undersigned three-judge panel, which was appointed by Chief Justice Chase Rogers on November 9, 2010.
As will be discussed later in this Memorandum of Decision, the Committee reached its conclusion to recommend the applicant based upon its understanding that the applicant had made arrangements to pay the arrearage she owed to the Client Security Fund, which understanding was erroneous.
DISCUSSION
The standing committee's recommendation that Johnson be reinstated is not binding on the court that "takes the final and decisive action." Scott v. State Bar Examining Committee, 220 Conn. 812, 817, 601 A.2d 1021 (1992). The panel is required to determine whether the reasons advanced to support the recommendation have merit and "are reasonable and proper in view of the subordinate facts found and the applicable principles of law." In re Application of Koenig, 152 Conn. 125, 133, 204 A.2d 33 (1964). In addition, since Johnson introduced evidence before the panel in support of her application, that evidence must also bear on our determination because under Practice Book § 2-53(a) the "three judges, or a majority of them, shall determine whether the application should be granted."
In considering an application for reinstatement, the focus is "on the issue of present fitness to practice." In re Application of Pagano, 207 Conn. 336, 345, 541 A.2d 104 (1988). "[T]he question for determination on an application like this is . . . the present fitness of the applicant for reinstatement to again exercise the privileges and functions of an attorney as an officer of the court and confidential manager of the affairs and business of others entrusted to his care and keeping, in view of his previous misconduct, his discipline [therefore], and any reformation of character wrought thereby or otherwise as shown by his more recent life and conduct." In re Kone, 90 Conn. 440, 442, 97 A. 307 (1916). "[M]isconduct, indicative of moral unfitness for the profession, whether it be professional or nonprofessional, justifies . . . exclusion from the bar." In re Peck, 88 Conn. 447, 451, 91 A. 274 (1914). "An applicant for readmission to the bar must be possessed of such standards of honor and honesty and have such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law. In re Kone [ supra, 90 Conn. 442]. Good moral character is a necessary and proper qualification for admission to the bar. Fairfield County Bar v. Taylor, 60 Conn. 11, 17, 22 A. 441 [(1891]; Grievance Committee v. Broder, 112 Conn. 263, 277, 152 A. 292 [(1930]; note, 64 A.L.R.2d 301. In this state, the ultimate burden of proving good character rests upon the applicant. In re Application of Warren, 149 Conn. 266, 274, 178 A.2d 528 [(1962] ." In re Application of Koenig, supra, 152 Conn. 132; see Scott v. State Bar Examining Committee, supra, 220 Conn. at 821. Practice Book § 2-53 does not directly address the criteria to be used in acting upon an application for reinstatement to the bar. However, "Connecticut. courts reviewing attorney misconduct have looked to the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards), which do provide guidance. The Standards, which were officially promulgated in 1986, have not been officially adopted in Connecticut. They are, however, used frequently by the Superior Court in evaluating attorney misconduct and in determining discipline . . ." Statewide Grievance Committee v. Glass, 46 Conn.App. 472, 481, 699 A.2d 1058 (1997). Section 2.3 of the Standards provides, in relevant part: "Procedures should be established to allow suspended lawyers to apply for reinstatement, but the lawyer who has been suspended should not be permitted to return to practice until he has completed a reinstatement process demonstrating rehabilitation, compliance with all applicable discipline or disability orders and rules, and fitness to practice law."
The panel relies on the Standards to evaluate the committee's recommendation in this case. The criteria set forth in section 2.3 take into account the interest of the attorney applicant, the interests of the bar and the interests of the public in promoting public confidence in the bar and the legal system. These criteria address the concerns of the panel in fulfilling its responsibility to assess Johnson's present fitness to practice law.
The panel is not satisfied that the record before the committee contains sufficient evidence to demonstrate compliance with court ordered conditions and with rehabilitation. There is no evidence that Johnson has done anything appreciable to repair the damage she has caused to the legal profession and to the public's confidence that lawyers will act with integrity. Her efforts to make good on a long overdue restitution payment to the client security fund appear to this panel to be too little and too late. She made a lump sum payment of $9,000 this fall on a $14,700 debt, but she has failed to live up to an agreement she proposed to pay $100 per month starting in September of 2010. The panel finds that her claim that she understood this proposal to be effective only after reinstatement is not credible. The panel concludes that there was no evidence before the committee, or before us, that Johnson has fully accepted responsibility for her wrongful conduct.
The tenor of the applicant's appeal to the Appellate Court suggests that she has not taken responsibility for her actions. Johnson's judgment file, which she wrote, dated December 14, 2006 states: "The hearing was not held in a de novo manner rather was conducted in the fashion of a Kangaroo Court proceeding."
Attorney Errante stated at the hearing concerning this issue of restitution, "the committee predicated its award on an understanding that the arrearage would be taken care of. The terms were $100 per month on the outstanding obligation of $5,700. I assumed it was being honored until a few weeks ago. Attorney Michael Bowler (representing the statewide grievance committee) called me and said it had not been honored. So I think if the committee had been faced with a situation where there had not been any payments towards the obligation, we probably would not have recommended that she be allowed to practice."
Section 2-53 of the Practice Book is the applicable provision for reinstatement of an attorney after suspension. There is no mention in that section of the right to impose probation type conditions upon reinstatement, but there is also nothing explicitly preventing it as a form of conditional reinstatement. The commentary to the ABA/BNN Lawyers' Manual on Professional Conduct in Section 2-10 on Model Standards, entitled "Readmission and Reinstatement," states: "Conditional readmission and conditional reinstatement can occur when appropriate. Conditions that can be imposed include probation (see Standard 2-7) or other sanctions or remedies (see Standard 2-8)."
The imposing of such conditions is completely appropriate in the case now before us where there have been prior suspensions, and the lawyer has not practiced for several years due to the suspensions. The applicant herself expresses a willingness to accept a practice mentor as a condition if she is reinstated, but her track record with regard to abiding by conditions of previous suspensions does not inspire confidence in her ability to take even this requirement seriously.
Additionally, the applicant has failed to produce sufficient evidence that, if reinstated, she would practice law under the guidance of a suitable mentor, as recommended by the committee. The committee tempered its reinstatement recommendation by suggesting that the court order a practice mentor to monitor Johnson's practice for a period of one year. The person Johnson suggests is her present attorney, Josephine Miller, with whom Johnson currently works as an unpaid paralegal. Ms. Miller has not indicated her willingness to accept such a role, nor has the panel been provided with a basis for determining that she would be an appropriate mentor.
Notwithstanding the committee's recommendation, we have an obligation to the public to protect it against the possibility of any future misconduct. The absence of evidence that the applicant has complied with her financial obligations to make restitution; and that she has secured a suitable and willing mentor require the Panel to deny the applicant's motion for reinstatement. See In the Matter of Presnick, 19 Conn.App. 340, 345, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989). "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." (Internal quotation marks omitted.) Massemeno v. Statewide Grievance Committee, 234 Conn. 539, 554-55, 663 A.2d 317 (1995).
Though the panel is sympathetic to the difficulties the applicant has had, financially, we are basing our decision upon the lack of evidence and the questions that the absence of such evidence raises. Can the applicant act as the "confidential manager of the affairs and business of others entrusted to his care?" In re Kone, supra, 90 Conn. 442. Can she be trusted to fulfill her fiduciary obligations? Is she able to conform her conduct to the requirements of the Rules of Professional Conduct even when it will cost her a fee or a client relationship? Will she, if confronted by a "red flag," recognize it and act ethically and appropriately? These questions were not answered in the presentations to the committee and to the panel. Without satisfactory answers to these questions, and without evidence that the applicant has met or will meet reasonable conditions, the panel declines to grant the applicant's motion.
CONCLUSION
For the reasons stated above, the Application for Readmission to the Bar is denied.
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