Cohen v. Statewide Grievance Committee ( 2021 )

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DEBRA COHEN v. STATEWIDE
GRIEVANCE COMMITTEE
(SC 20356)
McDonald, D’Auria, Mullins, Ecker and Keller, Js.
Syllabus
The plaintiff attorney appealed to the trial court, challenging the reprimand
imposed on her by the defendant, the Statewide Grievance Committee,
for having violated rules 3.3 (a) (1) and 8.4 (3) of the Rules of Professional
Conduct. The plaintiff, who was a court-appointed trustee of an estate,
had filed an amended final accounting with the Probate Court that
sought fiduciary fees for her work after she previously had represented
to that court that she would waive the fees and remove them from
the final accounting. The defendant upheld the determination of its
reviewing committee that the amended final accounting constituted a
knowingly false statement in violation of rule 3.3 (a) (1) and that the
false statement also was dishonest in violation of rule 8.4 (3). The trial
court dismissed the plaintiff’s appeal, concluding, inter alia, that the
reviewing committee’s decision was not clearly erroneous and that the
record supported the reviewing committee’s findings of fact. The plaintiff
thereafter appealed to the Appellate Court, claiming that the trial court
improperly expanded the application of rule 3.3 to include attorneys
functioning in a fiduciary role and improperly upheld the reviewing
committee’s determinations that she violated rules 3.3 (a) (1) and 8.4
(3). The Appellate Court affirmed the trial court’s judgment, and the
plaintiff, on the granting of certification, appealed to this court. Held:
1. The plaintiff could not prevail on her claim that rule 3.3 (a) (1) did not
apply to her because the Probate Court had appointed her to act as a
fiduciary for an estate and the commentary to that rule indicates that
it governs the conduct of a lawyer representing a client in the proceed-
ings of a tribunal: although the commentary illustrates the most common
context in which the rule would apply, that is, lawyers appearing before
a tribunal in the course of client representation, there are many other
contexts in which a lawyer might appear before a tribunal, and a fiduciary
role is one such example; moreover, case law supported the conclusion
that the commentary to rule 3.3 (a) (1) was insufficient to exempt
attorneys serving as court-appointed fiduciaries, and this court would
not conclude, without more evidence in the rule’s text or commentary,
that the drafters of the rule intended that an attorney serving as a
court-appointed fiduciary was not subject to discipline for making false
statements to the Probate Court when the same attorney, serving in a
traditional representational capacity, would be subject to discipline for
the same conduct.
2. The reviewing committee correctly concluded that the plaintiff had made
a false statement in violation of rule 3.3 (a) (1); contrary to the plaintiff’s
claim that she did not make a false statement because the amount of
the fiduciary fees listed in the accounting was accurate, the false state-
ment at issue was not the amount of the fees claimed but her assertive
conduct of including them in the amended final accounting in the context
of her prior representations to the Probate Court, and, even if her
statement in filing the accounting was not false within the meaning of
rule 3.3 (a) (1), her failure to qualify the inclusion of the fees with
some form of clarification that they had been waived amounted to an
affirmative misrepresentation and, therefore, was a false statement.
3. The evidence supporting the conclusion that the plaintiff violated rule
3.3 (a) (1) was sufficient to support the reviewing committee’s conclu-
sion that her conduct was dishonest, in violation of rule 8.4 (3): the
plaintiff’s knowingly false statement amounted to conduct involving a
lack of straightforward dealing, honesty and integrity, and, given that
the plaintiff knew that the Probate Court judge considered her fiduciary
fees waived, the reviewing committee did not incorrectly conclude that
it was dishonest for the plaintiff to include fiduciary fees in her amended
final accounting; moreover, even if the final accounting did not amount
to a violation of rule 3.3 (a) (1), her course of conduct, as found by the
reviewing committee and supported by the record, was sufficient to
support the conclusion that she violated rule 8.4 (3), as the plaintiff
acknowledged that she sought fiduciary fees because she was otherwise
unable to reimburse the estate for the tax penalties and interest she
had incurred in her role as the estate’s fiduciary, and the inconsistencies
between the different final accountings the plaintiff had submitted to
the Probate Court supported the conclusion that she was not straightfor-
ward with that court.
Argued December 7, 2020—officially released July 2, 2021*
Procedural History
Appeal from the decision of the defendant reprimand-
ing the plaintiff for violation of the Rules of Professional
Conduct, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Robaina, J.;
judgment dismissing the appeal, from which the plain-
tiff appealed to the Appellate Court, Alvord, Sheldon
and Bear, Js., which affirmed the judgment of the trial
court, and the plaintiff, on the granting of certification,
appealed to this court. Affirmed.
Debra Cohen, self-represented, the appellant (plain-
tiff).
Brian B. Staines, chief disciplinary counsel, for the
appellee (defendant).
Opinion
D’AURIA, J. In this certified appeal, the plaintiff,
Attorney Debra Cohen, appeals from the Appellate
Court’s judgment affirming the trial court’s dismissal
of her appeal from a reprimand the defendant, the State-
wide Grievance Committee, imposed on her for vio-
lating rules 3.3 (a) (1) and 8.4 (3) of the Rules of Profes-
sional Conduct.1 On appeal, the plaintiff claims that (1)
rule 3.3 (a) (1) does not apply when, as in the present
case, she was at all relevant times an attorney admitted
to practice in this state but was serving as a court-
appointed fiduciary, (2) the defendant incorrectly con-
cluded that she violated rule 3.3 (a) (1) by making a
‘‘false statement,’’ and (3) the defendant incorrectly
concluded that her conduct was dishonest in violation
of rule 8.4 (3). We disagree and, accordingly, affirm the
judgment of the Appellate Court.
The Appellate Court’s decision contains the pertinent
facts and procedural history, which we summarize in
relevant part. See Cohen v. Statewide Grievance Com-
mittee, 189 Conn. App. 643, 646–55, 208 A.3d 676 (2019).
The plaintiff was hired as a staff attorney for the Office
of the Probate Court Administrator (administrator) in
2005. Her responsibilities included auditing random
Probate Court files to determine whether the required
accountings complied with applicable law and proce-
dures. At the time of her hiring, the plaintiff had been
serving as a court-appointed trustee for the sole benefi-
ciary of the estate of John DeRosa, and she continued
to serve in that capacity after her employment com-
menced.2 In 2012, a few days after the plaintiff had filed
a proposed periodic accounting and affidavit of fees in
the DeRosa matter, the chief clerk of the Probate Court
asked the chief counsel for the administrator in an
e-mail whether the administrator’s attorneys were per-
mitted to serve as court-appointed fiduciaries. Chief
counsel for the administrator then instructed the plain-
tiff to resign as trustee in the DeRosa matter.
The plaintiff filed a motion to resign as the fiduciary
in the DeRosa matter on May 18, 2012. Following a
hearing, the Probate Court judge, Timothy R.E. Keeney,
ordered the plaintiff to file a final accounting, noting
in the order that he would consider the plaintiff’s motion
to resign when she filed the final accounting. The plain-
tiff thereafter filed an ‘‘Interim Account, for Filing Pur-
poses Only.’’3 Next, the plaintiff submitted a proposed
final accounting, dated April 12, 2013, through her
retained counsel, Attorney Timothy A. Daley. The April
12 proposed final accounting included fiduciary fees
she claimed in the amount of $5980. The same day,
Attorney Daley disclosed to the Probate Court that the
plaintiff had failed to file income tax returns for the
trust and that, as a result, the trust had incurred tax
penalties in the amount of $5531.84. Attorney Daley told
the Probate Court that the proposed final accounting
credited and paid back the penalties incurred as a result
of the plaintiff’s failure to file the required tax returns.
On May 15, 2013, during a hearing before the Probate
Court, the plaintiff filed an amended final accounting,
which showed a reimbursement to the estate of
$5531.84 for the tax interest and penalties, and a request
for fiduciary fees in the amount of $5980. Following
the hearing, the chief counsel for the administrator
instructed the plaintiff not to charge fiduciary fees in
any Probate Court matter for the time period during
which she had been employed by the administrator.
On May 24, 2013, the plaintiff e-mailed the chief clerk
of the Probate Court, stating that she intended to file
a second amended final accounting and that ‘‘[t]he
amendment will make no entry for the payment of fees
for the fiduciary and will set aside a reserve for the
payment of state and federal income taxes and the cost
for preparing the final income tax returns.’’
On June 1, 2013, the plaintiff filed an amended final
accounting, which, if approved, would reduce to
$4283.74 the amount she was required to reimburse
the estate. The plaintiff asserted that this reduction
reflected that the Department of Revenue Services ‘‘had
granted amnesty to [the] [e]state for the 2000–2007 tax
years [and that] the value of the tax pardoned . . . is
$1248.10.’’ (Internal quotation marks omitted.) Cohen
v. Statewide Grievance Committee, supra, 189 Conn.
App. 648. The plaintiff did not include an entry for
fiduciary fees in the June 1 amended final accounting.
Judge Keeney did not accept the June 1, 2013
amended final accounting. In a June 5, 2013 letter to
the plaintiff, Judge Keeney questioned why she sought
to reduce the reimbursement she owed the estate, not-
ing that the actual amount paid by the estate for interest
and penalties for state and federal taxes was $5531.84,
regardless of whether the tax obligation itself was later
reduced. Judge Keeney’s letter continued: ‘‘It is duly noted
that the [f]iduciary fees per [e]xhibit A of the January
1, 2012 to April 22, 2013 [a]mended [f]inal [a]ccount[ing]
totaling $5980 have now been waived in the [a]mended
[f]inal [a]ccount[ing] of January 1, 2012 to May 31, 2013.’’
On June 24, 2013, the plaintiff filed another amended
final accounting. This time, the amended final account-
ing listed a reimbursement to the estate in the amount
of $5531.84 as well as an entry for claimed fiduciary
fees in the identical amount of $5531.84. Thereafter, the
chief clerk of the Probate Court e-mailed the plaintiff,
explaining that no hearing had yet been set because
‘‘the [j]udge still has some questions/concerns.’’ (Inter-
nal quotation marks omitted.) Cohen v. Statewide
Grievance Committee, supra, 189 Conn. App. 650. On
August 6, 2013, the plaintiff filed one more amended
final accounting, this time removing the claimed fidu-
ciary fees. The Probate Court approved this final
accounting on September 5, 2013.
Chief disciplinary counsel at the time, Patricia A.
King, filed a grievance complaint with the defendant
on January 2, 2015, alleging that the plaintiff’s conduct
in the DeRosa matter violated numerous provisions of
the Rules of Professional Conduct.4 The complaint
alleged specifically that the plaintiff had violated rule
8.4 (3) when she ‘‘tried to substantiate her fees in the
DeRosa matter by indicating to the Probate Court that
her position as attorney for the [Probate Court adminis-
trator] justified, in part, her requested fee. Moreover,
[the plaintiff] billed for time spent discussing the
DeRosa matter with her supervisor, who was
instructing her to withdraw from the matter.’’
A grievance panel for the Hartford and New Britain
judicial districts found probable cause that the plaintiff
had violated rule 1.7 (a) (2) of the Rules of Professional
Conduct, and also found that the plaintiff did not violate
rules 1.11, 1.3 and 8.4 (4). The panel’s determination of
probable cause was silent as to rule 8.4 (3). Pursuant
to Practice Book § 2-35 (d),5 the Office of Disciplinary
Counsel then filed additional allegations of misconduct.
Disciplinary counsel alleged that the plaintiff’s ‘‘refusal
to adhere to Probate Court requests and orders’’ in the
DeRosa matter violated rules 3.3 and 8.4 (3). The addi-
tional allegations included seventeen attached docu-
ments in support of those allegations.
After a hearing at which the plaintiff testified, a
reviewing committee of the defendant concluded that
the plaintiff had violated rules 3.3 (a) (1) and rule 8.4
(3). Specifically, the reviewing committee concluded:
‘‘It is clear . . . that the [plaintiff] was attempting to
offset the amount she owed to the estate for the income
tax interest and penalties with her fiduciary fees. The
[plaintiff] maintained that the request for fiduciary fees
was a mistake. This reviewing committee does not find
the [plaintiff’s] statement credible, considering the fact
that the amount of the fiduciary fees requested equaled
the amount of interest and penalties owed to the estate
by the [plaintiff]. Furthermore, the [plaintiff] is an expe-
rienced Probate Court attorney who clearly understood
the directives of Judge Keeney. We find [that] the [plain-
tiff’s] actions were knowing, deliberate and contrary to
her representation to the court in her May 24, 2013
e-mail and June 1, 2013 accounting. Accordingly, we
conclude that the amended final account[ing] filed by
the [plaintiff] on June 24, 2013, constituted a knowingly
false statement to the Probate Court, in violation of
rule 3.3 (a) (1) of the Rules of Professional Conduct,
and was dishonest, in violation of rule 8.4 (3) of the Rules
of Professional Conduct.’’ The reviewing committee
reprimanded the plaintiff and ordered her to attend a
continuing legal education course in legal ethics.
The defendant upheld the reviewing committee’s
decision after the plaintiff filed a request for review
pursuant to Practice Book § 2-35 (k).6 The plaintiff next
appealed to the Superior Court pursuant to Practice
Book § 2-38, arguing in relevant part that (1) the
reviewing committee’s finding that the June 24, 2013
amended final accounting ‘‘constituted a knowingly
false statement’’ to a tribunal was clearly erroneous, (2)
the record did not support the reviewing committee’s
finding that her conduct was dishonest in violation of
rule 8.4 (3), and (3) rule 3.3 is limited to attorneys
engaged in an attorney-client relationship.7 The court,
Robaina, J., dismissed the plaintiff’s appeal, determin-
ing that the reviewing committee’s decision was not
clearly erroneous, the record amply supported the
reviewing committee’s findings of fact, and the repri-
mand imposed fell ‘‘within proper guidelines.’’
The plaintiff then appealed to the Appellate Court,
claiming in relevant part that the trial court (1) improp-
erly expanded the application of rule 3.3 to an attorney
functioning in a fiduciary role, (2) improperly upheld
the reviewing committee’s determination that the June
24, 2013 amended final accounting constituted a know-
ingly false statement to the Probate Court in violation of
rule 3.3 (a) (1), and (3) improperly upheld the reviewing
committee’s determination that the June 24, 2013
amended final accounting was dishonest in violation of
rule 8.4 (3).8 The Appellate Court affirmed the trial
court’s judgment. Cohen v. Statewide Grievance Com-
mittee, supra, 189 Conn. App. 666. The plaintiff peti-
tioned for certification to appeal to this court, which we
granted.9 Additional facts will be set forth as necessary.
I
The plaintiff first claims that rule 3.3 (a) (1) does not
apply because the Probate Court had appointed her to
act as fiduciary for an estate. We disagree with the
plaintiff and agree with the Appellate Court’s well rea-
soned conclusion that rule 3.3 (a) (1) is not limited to
statements made in the course of attorney-client rela-
tionships.
Rule 3.3 (a) provides in relevant part: ‘‘A lawyer shall
not knowingly: (1) [m]ake a false statement of fact or
law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by
the lawyer . . . .’’ The defendant contends that the text
of the rule itself is definitive, and, therefore, consistent
with General Statutes § 1-2z, we should not consider
the commentary to rule 3.3 without first determining
that the text of the rule is ambiguous, which, in the
defendant’s view, is not. The defendant argues that,
because the plaintiff is a lawyer, she can be sanctioned
for making a false statement to a tribunal, in this case
a probate court. The plaintiff argues, on the other hand,
that rule 3.3 is limited by its commentary, which pro-
vides in relevant part: ‘‘This [r]ule governs the conduct
of a lawyer who is representing a client in the proceed-
ings of a tribunal. . . .’’10 Rules of Professional Conduct
3.3, commentary. The plaintiff claims that rule 3.3 does
not apply in this context because, in making the state-
ment to the Probate Court, she was not representing
a client.
The proper construction of the Rules of Professional
Conduct presents a question of law over which our
review is plenary. See, e.g., Disciplinary Counsel v.
Elder, 325 Conn. 378, 386, 159 A.3d 220 (2017). ‘‘The
legal profession is largely self-governing. Although
other professions also have been granted powers of
self-government, the legal profession is unique in this
respect because of the close relationship between the
profession and the processes of government and law
enforcement. This connection is manifested in the fact
that ultimate authority over the legal profession is
vested largely in the courts.’’ Rules of Professional Con-
duct, preamble, p. 2. The Rules of Professional Conduct
are adopted by the judges of the Superior Court, not
by the legislature. See Statewide Grievance Committee
v. Shluger, 230 Conn. 668, 674 n.11, 646 A.2d 781 (1994)
(‘‘[t]he professional rights and obligations of attorneys
practicing within Connecticut are governed by the Rules
of Professional Conduct, adopted by the judges of the
Superior Court in 1986’’). In construing our rules of
practice, which include the Rules of Professional Con-
duct, we have consistently applied well established
principles of statutory interpretation. See, e.g., State v.
Heredia, 310 Conn. 742, 755, 81 A.3d 1163 (2013); see
also Helmedach v. Commissioner of Correction, 168
Conn. App. 439, 459, 148 A.3d 1105 (2016), aff’d, 329
Conn. 726, 189 A.3d 1173 (2018). However, our interpre-
tation of the Rules of Professional Conduct, unlike our
interpretation of our statutes and rules of practice, is
complicated by the fact that the judges of the Superior
Court have also formally adopted the commentary to
the Rules of Professional Conduct. Connecticut Prac-
tice Book, explanatory notes, p. iii. To decide whether
rule 3.3 (a) (1) applies to the present case, then, we
must first determine the appropriate weight to give to
the commentary. On this issue, the parties disagree.
Although we have not had occasion to consider
whether, in construing a particular rule of professional
conduct, statutory construction principles such as
those embodied in § 1-2z limit our ability to consult the
commentary to the rules, our precedent concerning the
adoption of the Connecticut Code of Evidence by the
judges of the Superior Court suggests that, when the
judges have formally adopted the commentary submit-
ted by the Rules Committee of the Superior Court, the
rule ‘‘must be read together with its [c]ommentary in
order for it to be fully and properly understood.’’ (Inter-
nal quotation marks omitted.) State v. DeJesus, 288
Conn. 418, 442 n.16, 953 A.2d 45 (2008); State v. Pierre,
277 Conn. 42, 60, 890 A.2d 474 (quoting D. Borden, ‘‘The
New Code of Evidence: A (Very) Brief Introduction and
Overview,’’ 73 Conn. B.J. 210, 213 (1999)), cert. denied,
547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).11
As with the Connecticut Code of Evidence at the time
we decided DeJesus, the ‘‘[c]ommentaries to the Rules
of Professional Conduct . . . are adopted by the
[j]udges and [j]ustices . . . .’’ (Emphasis in original.)
Connecticut Practice Book, explanatory notes, p. iii.
Because the commentary to the Rules of Professional
Conduct has been formally adopted by the judges of
the Superior Court, the rules must be read together
with their commentary. Thus, we agree with the plaintiff
that we are not prevented from considering the com-
mentary, even if we have not found the relevant lan-
guage to be ambiguous.12
However, we do not agree with the plaintiff that the
commentary at issue is dispositive and limits the appli-
cability of rule 3.3 to lawyers serving in a representa-
tional capacity. According to the preface to the Rules
of Professional Conduct, ‘‘[t]he [c]ommentary accom-
panying each [r]ule explains and illustrates the mean-
ing and purpose of the [r]ule. . . . The [c]ommentaries
are intended as guides to interpretation, but the text
of each [r]ule is authoritative. Commentaries do not
add obligations to the [r]ules but provide guidance for
practicing in compliance with the [r]ules.’’ (Emphasis
added.) Rules of Professional Conduct, scope, p. 3.
Therefore, although we must read the text of the rules
and the commentary together, the commentary is not
intended to be definitive, authoritative, or limiting but,
rather, is intended to be illustrative and to guide our
interpretation of the rules.
We note that the text of rule 3.3 (a) (1) itself does
not indicate that it applies only to lawyers serving in a
representational capacity. Nor is the pertinent language
of the commentary necessarily limiting in nature. The
commentary provides in relevant part that ‘‘[t]his [r]ule
governs the conduct of a lawyer who is representing a
client in the proceedings of a tribunal. . . .’’ Rules of
Professional Conduct 3.3, commentary. Given the
stated purpose of the commentary—to explain, illus-
trate and guide—a better interpretation of this commen-
tary language is that it illustrates the most common
context in which rule 3.3 would apply—lawyers
appearing before a tribunal in the course of client repre-
sentation. There are, however, many other contexts
in which a lawyer might appear before a tribunal. A
fiduciary role is one such example.13
Our case law also supports the conclusion that the
commentary to rule 3.3 is insufficient to exempt attor-
neys serving as court-appointed fiduciaries. ‘‘[I]t is well
established that [t]he Rules of Professional Conduct
bind attorneys to uphold the law and to act in accor-
dance with high standards in both their personal and
professional lives.’’ (Internal quotation marks omitted.)
Notopoulos v. Statewide Grievance Committee, 277
Conn. 218, 231, 890 A.2d 509, cert. denied, 549 U.S. 823,
127 S. Ct. 157, 166 L. Ed. 2d 39 (2006). ‘‘Disciplinary
proceedings not only concern the rights of the lawyer
and the client, but also the rights of the public and the
rights of the judiciary to ensure that lawyers uphold
their unique position as officers and commissioners of
the court.’’ In re Presnick, 19 Conn. App. 340, 345, 563
A.2d 299 (citing Heslin v. Connecticut Law Clinic of
Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938(1983)), cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).
Further, ‘‘the Rules of Professional Conduct apply to
attorneys whether they are representing clients or act-
ing as [self-represented] litigants unless the language
of the rule or its relevant commentary clearly suggests
otherwise.’’ (Emphasis added.) Notopoulos v. Statewide
Grievance Committee, supra, 231; cf. Pinsky v. State-
wide Grievance Committee, 216 Conn. 228, 236, 578
A.2d 1075 (1990) (rule 4.2 of Rules of Professional Con-
duct, which proscribes communication between attor-
ney and represented party, expressly applies only when
attorney is representing client). Here, neither rule 3.3
nor its commentary expressly limits the application of
the rule to situations in which an attorney is represent-
ing a client.14
The title of rule 3.3, ‘‘Candor toward the Tribunal,’’
also lends support to the argument that the rule applies
to statements made by attorneys serving as court-
appointed fiduciaries before the Probate Court because
it suggests that the rule seeks to protect the judiciary,
not just the client. In this case, then, as a member
of the Connecticut bar, the plaintiff had duties to the
Probate Court itself, which had appointed her. It makes
no difference that the plaintiff may not have represented
any client with regard to the administration of the
DeRosa estate. See In re Speights, 189 A.3d 205, 209
(D.C. 2018) (‘‘a lawyer in this jurisdiction who serves
as the court-appointed personal representative of an
estate is held to the same ethical standards as a lawyer
representing a client’’). As a court-appointed fiduciary,
the plaintiff’s responsibilities to the Probate Court are
substantially similar to the responsibilities of a lawyer
representing a client before the Probate Court. Without
more evidence in the rule’s text or commentary, we
will not conclude that the drafters of the rule intended
that an attorney serving as a court-appointed fiduciary
is not subject to discipline for making false statements
to the Probate Court when the same attorney, serving
in a traditional representational capacity, would be sub-
ject to discipline for the same conduct.
The case law the plaintiff relies on is unpersuasive
and distinguishable. Although, in certain circum-
stances, case law from other jurisdictions can be per-
suasive if those jurisdictions have adopted similar provi-
sions that are based on the same uniform act;15 see
Friezo v. Friezo, 281 Conn. 166, 187–88, 914 A.2d 533(2007); the plaintiff cites cases that are clearly distin-
guishable from the present case. For example, the plain-
tiff cites cases involving lawyers who appeared in a self-
represented capacity, who testified falsely in a personal
capacity and who made a false report to the police in
a personal capacity. See, e.g., In re Ivy, 350 P.3d 758,
760–61 (Alaska 2015) (false report to police alleging
attorney was being stalked and assaulted by her
brother); People v. Head, 332 P.3d 117, 129 (Colo.
O.P.D.J. 2013) (attorney representing his own inter-
ests); In re Disciplinary Action Against Albrecht, 845
N.W.2d 184, 190–91 (Minn. 2014) (attorney misled legal
ethics office regarding whether he had registered to
take examination required for reinstatement to practice
of law); State ex rel. Oklahoma Bar Assn. v. Dobbs, 94
P.3d 31, 51–52 (Okla. 2004) (attorney gave false testi-
mony as witness in criminal proceeding against
mayor).16 Although we need not decide whether rule
3.3 can never apply in circumstances in which a lawyer
clearly acts only on the lawyer’s own behalf, these cases
do not inform our consideration of whether rule 3.3
applies when a lawyer is acting as a fiduciary.
The plaintiff also cites Attorney Grievance Commis-
sion v. Ruddy, 411 Md. 30, 64, 981 A.2d 637 (2009), cert.
denied, 562 U.S. 833, 131 S. Ct. 125, 178 L. Ed. 2d 33(2010), arguing that ‘‘the Maryland Court of Appeals
confirmed that ‘[rule 3.3 (a) (1) of the Maryland Rules of
Professional Conduct] governs the conduct of a lawyer
who is representing a client in the proceedings of a
tribunal.’ ’’ The plaintiff misstates the holding of Ruddy,
however. In that case, the attorney served as the per-
sonal representative of the estate of his aunt. Id., 39.
The attorney testified that his son, who was living in
the aunt’s house, no longer owed rent to the estate,
which was inaccurate. Id., 62–63. The court held that
the attorney’s conduct did not violate rule 3.3 (a) (1)
not because there was no attorney-client relationship
but because the attorney’s false testimony was ‘‘ ‘not
material’ . . . .’’ Id., 64. Therefore, the court held that
his failure to correct the testimony did not violate the
requirement of rule 3.3 (a) (1) of the Maryland Rules
of Professional Conduct that an attorney must ‘‘correct
a false statement of material fact or law previously
made to the tribunal by the lawyer . . . .’’ (Emphasis
added; internal quotation marks omitted.) Id., 61. The
court in Ruddy does quote the portion of the rule 3.3
commentary at issue in this case; id., 64; but Ruddy
clearly does not hold that rule 3.3 does not apply if
there is no attorney-client relationship.
We therefore hold that, in the present case, rule 3.3
(a) (1) governed the conduct of the plaintiff, a lawyer
appointed by the Probate Court to serve as a fiduciary
for an estate.
II
The plaintiff next claims that the reviewing commit-
tee clearly erred when it found that she made a false
statement to the Probate Court in violation of rule 3.3
(a) (1).17 Specifically, the plaintiff contends that the
statement the reviewing committee found to be false
was ‘‘the fiduciary account[ing] dated June 24, 2013.’’
The plaintiff claims that this statement cannot be false
because she in fact rendered fiduciary services to the
estate and because the amount listed on the June 24,
2013 amended final accounting was a reasonable fee
for those services.18 The defendant contends that the
reviewing committee was entitled to draw reasonable
inferences from the plaintiff’s various representations
to determine that the June 24, 2013 amended final
accounting—in the context of her prior course of con-
duct—amounted to a false statement within the mean-
ing of rule 3.3 (a) (1). We agree with the defendant.
The reviewing committee’s conclusion that the plain-
tiff made a ‘‘knowingly false statement’’ is a factual
finding. See Henry v. Statewide Grievance Committee,
111 Conn. App. 12, 22–23, 957 A.2d 547 (2008). Factual
findings of the reviewing committee are reviewed under
the clearly erroneous standard. ‘‘Although the [S]tate-
wide [G]rievance [C]ommittee is not an administrative
agency . . . the court’s review of its conclusions is
similar to the review afforded to an administrative
agency decision.’’ (Citation omitted.) Weiss v. State-
wide Grievance Committee, 227 Conn. 802, 811, 633
A.2d 282 (1993). ‘‘The burden is on the [S]tatewide
[G]rievance [C]ommittee to establish the occurrence of
an ethics violation by clear and convincing proof.’’
(Internal quotation marks omitted.) Somers v. State-
wide Grievance Committee, 245 Conn. 277, 290, 715
A.2d 712 (1998). ‘‘Upon appeal, the court shall not sub-
stitute 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 prej-
udiced because the committee’s findings, inferences,
conclusions, or decisions are . . . (5) clearly errone-
ous in view of the reliable, probative, and substantial
evidence on the whole record . . . .’’ Practice Book
§ 2-38 (f); see also Notopoulos v. Statewide Grievance
Committee, supra, 277 Conn. 227. Finally, when we are
required to interpret the Rules of Professional Conduct,
our review is plenary, and the rules of statutory interpre-
tation apply. See part I of this opinion.
Our analysis, therefore, is limited to whether the
reviewing committee clearly erred when it found that
the plaintiff’s conduct constituted a ‘‘false statement’’
in violation of rule 3.3 (a) (1). We first must interpret
the phrase ‘‘false statement’’ within the meaning of rule
3.3 (a) (1). ‘‘False statement’’ is not defined in the rules.
We therefore look to the ‘‘commonly approved usage’’
of the phrase as found in dictionaries. See, e.g., General
Statutes § 1-1 (a); State v. Menditto, 315 Conn. 861, 866,
110 A.3d 410 (2015). Black’s Law Dictionary defines
‘‘false statement’’ as ‘‘[a]n untrue statement knowingly
made with the intent to mislead.’’ Black’s Law Dictionary
(11th Ed. 2019) p. 1699. Black’s Law Dictionary further
defines ‘‘untrue’’ as ‘‘not correct; inaccurate.’’ Id., p.
1851. ‘‘Statement’’ also is not defined in the Rules of
Professional Conduct. Black’s Law Dictionary defines
‘‘statement’’ as a ‘‘verbal assertion or nonverbal conduct
intended as an assertion.’’ Id., p. 1699.
As an initial matter, we must identify the statement
at issue. The plaintiff argues that the statement is the
amount of the fees listed on the amended final account-
ing, which she contends reflects an accurate amount
and thus cannot constitute a false statement. The plain-
tiff misunderstands the reviewing committee’s finding.
As the reviewing committee’s full holding makes clear,
the statement at issue is the act of including the fidu-
ciary fees in the June 24, 2013 amended final accounting
in the context of her prior representations to the Pro-
bate Court. In other words, the statement is the assert-
ive conduct of including the fees in the amended final
accounting, not the amount of the fees claimed.
Whether the amount the plaintiff claimed was reason-
able or reflective of the actual work performed was not
the point.
We next must determine whether the reviewing com-
mittee’s finding that the plaintiff’s statement was false
is supported by clear and convincing evidence; in other
words, that the statement was ‘‘untrue,’’ ‘‘not correct,’’
or ‘‘inaccurate.’’ We agree with the Appellate Court that
the reviewing committee correctly concluded that the
plaintiff made a false statement to the Probate Court
in violation of rule 3.3 (a) (1).
The reviewing committee relied on the following evi-
dence. Prior to filing the June 24, 2013 amended final
accounting, in which the plaintiff claimed fiduciary fees,
the plaintiff told the Probate Court in her May 24, 2013
e-mail that she would not include the fees in her
amended final accounting. In her June 1, 2013 amended
final accounting, the plaintiff in fact did not include any
fiduciary fees, consistent with the representation in her
e-mail. In his June 5, 2013 letter to the plaintiff, Judge
Keeney wrote: ‘‘It is duly noted that the [f]iduciary fees
per [e]xhibit A of the January 1, 2012 to April 22, 2013
[a]mended [f]inal [a]ccount[ing] totaling $5980 have
now been waived in the [a]mended [f]inal [a]ccount[ing]
of January 1, 2012 to May 31, 2013.’’ (Emphasis added.)
After receiving Judge Keeney’s letter, the plaintiff again
included fiduciary fees in the June 24, 2013 amended
final accounting. The reviewing committee found that
the plaintiff’s inclusion of the fees in the June 24, 2013
final accounting was not a mistake. In addition, the
reviewing committee found that the plaintiff was
attempting to offset the amount she owed to the estate
for the income tax interest and penalties with her fidu-
ciary fees.
As the Appellate Court quite aptly explained, the evi-
dence supports the conclusion that the plaintiff ‘‘repre-
sented that she would waive her fiduciary fees and
remove the entry for such fees from the amended final
account[ing]. Her actions were inconsistent with her
representations.’’ Cohen v. Statewide Grievance Com-
mittee, supra, 189 Conn. App. 666. Like the Appellate
Court, the reviewing committee did not clearly err in
concluding that, in the context of the plaintiff’s prior
representations, the plaintiff’s June 24, 2013 amended
final accounting constituted a false statement in viola-
tion of rule 3.3 (a) (1).
Even if the plaintiff’s statement in filing the June 24,
2013 amended final accounting were not false within
the meaning of rule 3.3 (a) (1), her failure to qualify
the statement to clarify that the fees had been waived
amounts to a false statement. The commentary to rule
3.3 provides that ‘‘[t]here are circumstances where fail-
ure to make a disclosure is the equivalent of an affirma-
tive misrepresentation.’’ Rules of Professional Conduct
3.3, commentary; see also Daniels v. Alander, 268 Conn.
320, 330, 844 A.2d 182 (2004) (holding that rule 3.3 (a)
(1) can apply to misrepresentations that take form of
failure to disclose). As the defendant noted, in the pres-
ent case, the plaintiff failed to disclose to the Probate
Court that the fiduciary fees had been waived when
she included those fees in the actual calculation of the
assets of the estate. Not only did the plaintiff include
the fiduciary fees as a line item in the amended final
accounting, but this line item was used in the calcula-
tion of the assets of the estate, making it appear as
though the plaintiff did not owe a reimbursement for
tax penalties and interest. Under these circumstances,
the failure to qualify the inclusion of the fiduciary fees
with some form of clarification that the fees had been
waived also amounted to an affirmative misrepresenta-
tion and is therefore a false statement in violation of
rule 3.3 (a) (1).
III
Finally, the plaintiff claims that the reviewing com-
mittee clearly erred when it concluded that her conduct
was ‘‘dishonest,’’ in violation of rule 8.4 (3).19 Under
rule 8.4, ‘‘[i]t is professional misconduct for a lawyer
to . . . (3) [e]ngage in conduct involving dishonesty,
fraud, deceit or misrepresentation . . . .’’ The plaintiff
contends that the reviewing committee’s factual find-
ings do not support the conclusion that the June 24, 2013
amended final accounting was dishonest. The plaintiff
appears to argue that, for her conduct to be dishonest,
there must be evidence that her conduct actually
deceived or misled the Probate Court, had the potential
to induce the beneficiary of the DeRosa trust to disburse
money in accordance with the June 24, 2013 amended
final accounting, or that she had been disloyal to the
trust or to the beneficiary. The evidence does not sup-
port a conclusion that any of these requirements were
met, the plaintiff contends, and, therefore, the amended
final accounting was not dishonest. The defendant con-
tends that the evidence that the plaintiff filed different
final accountings, each of which reduced or eliminated
her required contribution to the DeRosa estate, and
that she did so because she did not have the funds to
reimburse the estate, sufficiently supports the conclu-
sion that her conduct was dishonest. We agree with the
defendant.
The same standard of review applicable in part II of
this opinion governs this claim. Dishonesty is not
defined in the Rules of Professional Conduct; we there-
fore look to the dictionary definition of the word for
its common usage. See, e.g., General Statutes § 1-1 (a);
State v. Menditto, supra, 315 Conn. 866. Merriam-Web-
ster’s Collegiate Dictionary defines ‘‘dishonesty’’ as a
‘‘lack of honesty or integrity: disposition to defraud
or deceive.’’ Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2011) p. 359. Black’s Law Dictionary defines
‘‘dishonest’’ as ‘‘not involving straightforward dealing;
discreditable; underhanded; fraudulent.’’ Black’s Law
Dictionary, supra, p. 588.
It is not unusual for a lawyer who violates rule 3.3
(a) (1) to also violate rule 8.4 (3). See D. Richmond,
‘‘The Ethics of Zealous Advocacy: Civility, Candor and
Parlor Tricks,’’ 34 Tex. Tech L. Rev. 3, 28 (2002) (‘‘[r]ule
3.3 (a) often overlaps with [r]ule 8.4 (c),’’ and ‘‘lawyer
[who] violates [r]ule 3.3 (a) generally violates [r]ule 8.4
(c)’’); see also Burton v. Mottolese, 267 Conn. 1, 51–52,
835 A.2d 998 (2003) (holding that trial court reasonably
concluded that plaintiff violated rule 3.3 (a) (1) and
that same conduct supported conclusion that plaintiff
violated rule 8.4 (3)), cert. denied, 541 U.S. 1073, 124
S. Ct. 2422, 158 L. Ed. 2d 983 (2004). In the present
case, the evidence supporting the conclusion that the
plaintiff violated rule 3.3 (a) (1) is also sufficient to
support the conclusion that her conduct was dishonest
in violation of rule 8.4 (3). The knowingly false state-
ment the plaintiff made amounts to conduct involving
a lack of straightforward dealing, honesty, and integrity.
Given that the plaintiff knew that Judge Keeney consid-
ered her fiduciary fees waived, the reviewing committee
did not clearly err in concluding that it was dishonest
for the plaintiff to include fiduciary fees in the June 24,
2013 amended final accounting.
Even if the plaintiff’s June 24, 2013 amended final
accounting was not in violation of rule 3.3 (a) (1), her
course of conduct, as found by the reviewing committee
and supported by the record, is sufficient to support
the conclusion that she violated rule 8.4 (3). The plaintiff
admitted that she sought fiduciary fees because she
was otherwise unable to reimburse the estate for the
tax penalties and interest she incurred in her role as
the estate’s fiduciary. The plaintiff had represented to
the Probate Court that she would not include fiduciary
fees on her amended final accounting but, then, con-
trary to this representation, included them nonetheless.
In her June 1, 2013 amended final accounting, the plain-
tiff properly excluded her fiduciary fees but improperly
reduced the reimbursement she owed to the estate. In
her June 24, 2013 amended final accounting, the plaintiff
again included fiduciary fees but altered the amount
such that they equaled, exactly, the amount she was
required to reimburse the estate. The plaintiff’s entire
course of conduct as found by the reviewing committee,
including the inconsistencies between the six final
accountings she submitted to the Probate Court, sup-
ports the conclusion that she was not straightforward
with the Probate Court and that she attempted to offset
the amount she owed to the estate with her fiduciary
fees. Such conduct is dishonest because it demonstrates
a lack of integrity and a disposition to deceive.
Nevertheless, the plaintiff argues that more is required
to support the conclusion that she violated rule 8.4 (3),
such as evidence that the June 24, 2013 amended final
accounting could have induced the beneficiary of the
DeRosa trust to disburse money in accordance with
the accounting or evidence that the Probate Court was
actually deceived or misled by the June 24, 2013 amended
final accounting. We disagree that more was required
in the present case.
Rule 8.4 (3) prohibits four different types of conduct:
dishonesty, fraud, deceit and misrepresentation. The
plaintiff is likely correct that more evidence would be
required to show that her violation of rule 8.4 (3) was
based on fraud, but, here, the reviewing committee
based its conclusion on the fact that her conduct was
dishonest. ‘‘It is well settled that statutory interpreta-
tions that render language superfluous are disfavored
. . . .’’ (Internal quotation marks omitted.) Dish Net-
work, LLC v. Commissioner of Revenue Services, 330
Conn. 280, 312, 193 A.3d 538 (2018). Here, although the
common meaning of the term ‘‘dishonesty’’ may include
fraud, as defined previously, it must mean something
other than fraud for the term not to be superfluous.
Rule 1.0 (e) defines ‘‘fraud’’ as ‘‘conduct that is fraudu-
lent under the substantive or procedural law of the
applicable jurisdiction and has a purpose to deceive.’’
Rules of Professional Conduct 1.0 (e). Under substan-
tive law in Connecticut, the four elements of fraud are
that ‘‘(1) a false representation was made . . . as a
statement of fact; (2) the statement was untrue and
known to be so by [the person making the statement];
(3) the statement was made with the intent of inducing
reliance thereon; and (4) the other party relied on the
statement to his detriment.’’ (Internal quotation marks
omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116
A.3d 1195 (2015). ‘‘All of these ingredients must be
found to exist.’’ (Internal quotation marks omitted.)
Capp Industries, Inc. v. Schoenberg, 104 Conn. App.
101, 116, 932 A.2d 453, cert. denied, 284 Conn. 941, 937
A.2d 696 (2007), and cert. denied, 284 Conn. 941, 937
A.2d 697 (2007).
Thus, if the reviewing committee had found that the
plaintiff’s conduct constituted fraud, she would be cor-
rect that rule 8.4 (3) requires an element of causation.
The reviewing committee, however, found that the
plaintiff’s conduct was dishonest, not fraudulent. As
such, the reviewing committee’s finding of dishonesty
was required to be supported by evidence that the plain-
tiff’s conduct showed a lack of honesty or integrity, a
disposition to deceive, or that it was underhanded or
involved dealings that were not straightforward. As
there was such evidence in the record, the reviewing
committee did not clearly err in concluding that the
June 24, 2013 amended final accounting was dishonest,
in violation of rule 8.4 (3).
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* July 2, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Rule 3.3 (a) of the Rules of Professional Conduct provides in relevant
part: ‘‘A lawyer shall not knowingly:
‘‘(1) [m]ake a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the tribunal by
the lawyer . . . .’’
Rule 8.4 of the Rules of Professional Conduct provides in relevant part:
‘‘It is professional misconduct for a lawyer to:
***
‘‘(3) [e]ngage in conduct involving dishonesty, fraud, deceit or misrepre-
sentation . . . .’’
2
The heir to the DeRosa estate could not be located. The principal asset
of the estate was a mortgage on which monthly payments were made. The
plaintiff had been appointed trustee for the trust created for the purpose
of receiving and holding these payments for the missing beneficiary.
3
The ‘‘Interim Account, for Filing Purposes Only,’’ did not reimburse the
estate for any interest or penalties owed for taxes and did not claim any
fiduciary fees.
4
King’s grievance complaint alleged violations of rules 1.3, 1.7 (a) (2),
1.11 (d) (1), 1.11 (d) (2) (i), 8.4 (1), 8.4 (3) and 8.4 (4) of the Rules of
Professional Conduct. The complaint also alleged additional violations of
the rules regarding several other matters in which the plaintiff served as
a fiduciary.
5
Practice Book § 2-35 (d) provides in relevant part: ‘‘Disciplinary counsel
may add additional allegations of misconduct to the grievance panel’s deter-
mination that probable cause exists in the following circumstances:
‘‘(1) Prior to the hearing before the Statewide Grievance Committee or
the reviewing committee, disciplinary counsel may add additional allegations
of misconduct arising from the record of the grievance complaint or its
investigation of the complaint. . . .’’
6
Practice Book § 2-35 (k) provides in relevant part: ‘‘Within thirty days
of the issuance to the parties of the final decision by the reviewing committee,
the respondent may submit to the Statewide Grievance Committee a request
for review of the decision. . . .’’
7
Practice Book § 2-38 (a) provides in relevant part: ‘‘A respondent may
appeal to the Superior Court a decision by the Statewide Grievance Commit-
tee or a reviewing committee imposing sanctions or conditions against the
respondent, in accordance with Section 2-37 (a). . . .’’
8
The plaintiff additionally claimed that (1) disciplinary counsel violated
her due process rights by refusing to conduct an investigation into the
allegations of misconduct against her, (2) disciplinary counsel violated her
due process rights by failing to produce any witnesses other than the plaintiff
at her hearing before the reviewing committee, and (3) the court improperly
inferred the existence of an attorney-client relationship between the plaintiff
and the Probate Court. The plaintiff did not petition for certification to
appeal as to these issues.
9
We granted certification, limited to the following issues: (1) ‘‘Did the
Appellate Court correctly conclude that rule 3.3 (a) (1) of the Rules of
Professional Conduct, which provides that ‘[a] lawyer shall not knowingly
. . . make a false statement of fact or law to a tribunal,’ applies when the
lawyer makes the statement while acting in a capacity other than as a lawyer
representing a client?’’ And (2) ‘‘[d]id the Appellate Court correctly conclude
that the entry for fiduciary fees made by the plaintiff in the amended final
accounting constituted a knowingly false statement within the meaning of
rules 3.3 (a) (1) and 8.4 (3) of the Rules of Professional Conduct?’’ Cohen
v. Statewide Grievance Committee, 333 Conn. 901, 214 A.3d 381 (2019).
Upon review of the record and the briefs of the parties, and after due
consideration of the claims raised by the parties at oral argument before
this court, we conclude that the second certified issue is not an adequate
statement of the issue presented. Specifically, the second certified issue
does not conform to the issue actually presented and decided in the appeal
to the Appellate Court. See, e.g., State v. Ouellette, 295 Conn. 173, 183–85,
989 A.2d 1048 (2010). We therefore consider whether the entry for fiduciary
fees made by the plaintiff in the amended final accounting constituted a
knowingly false statement within the meaning of rule 3.3 (a) (1) and was
dishonest within the meaning of rule 8.4 (3).
10
The commentary to rule 3.3 also provides in relevant part: ‘‘[Rule 3.3] also
applies when the lawyer is representing a client in an ancillary proceeding
conducted pursuant to the tribunal’s adjudicative authority, such as a deposi-
tion. . . .’’ Rules of Professional Conduct 3.3, commentary.
11
Although DeJesus concerned our construction of the Connecticut Code
of Evidence and not the Rules of Professional Conduct, when we decided
DeJesus, the Connecticut Code of Evidence had been promulgated in the
same way the Rules of Professional Conduct are promulgated today, with
the commentary adopted by the judges of the Superior Court. See State v.
DeJesus, supra, 288 Conn. 442 n.16; see also Connecticut Practice Book,
explanatory notes, p. iii. We therefore look to DeJesus for guidance.
12
Because the commentary to the Rules of Professional Conduct is for-
mally adopted by the judges of the Superior Court, we have no occasion to
examine a question we have not closely examined before: whether, in gen-
eral, § 1-2z applies to the rules of practice or to the Rules of Professional
Conduct. But see Wiseman v. Armstrong, 295 Conn. 94, 100, 989 A.2d 1027(2010) (reviewing language of rules of practice ‘‘[i]n accordance with § 1-2z’’).
13
Other examples might include lawyers making representations to a
tribunal while serving as a guardian ad litem, conservator, and committee
for sale in a foreclosure matter.
14
The facts of this case do not present, and we therefore do not decide, the
issue of whether rule 3.3 (a) (1) applies to attorneys representing themselves
before a tribunal.
15
Connecticut’s Rules of Professional Conduct, like the analogous rules
of many other jurisdictions, are adapted from the American Bar Association’s
Model Rules of Professional Conduct. See, e.g., Briggs v. McWeeny, 260
Conn. 296, 299 n.3, 796 A.2d 516 (2002).
16
In addition, one case on which the plaintiff relies, Taurus IP, LLC v.
DaimlerChrysler Corp., 726 F.3d 1306, 1346 (Fed. Cir. 2013), involves rule
3.3 (b) of the Michigan Rules of Professional Conduct, which is substantively
different from Connecticut’s rule 3.3 (a) (1). Michigan’s rule 3.3 (b) provides:
‘‘If a lawyer knows that the lawyer’s client or other person intends to engage,
is engaging, or has engaged in criminal or fraudulent conduct related to an
adjudicative proceeding involving the client, the lawyer shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal.’’ Michi-
gan Rules of Professional Conduct 3.3 (b).
17
The plaintiff does not argue that she did not knowingly include the
fiduciary fees, and she cannot, because the reviewing committee found her
statement that she included the fees by mistake to be not credible. ‘‘An
appellate court must defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an opportunity to observe
the demeanor of the witnesses and the parties; thus [the fact finder] is best
able to judge the credibility of the witnesses and to draw necessary infer-
ences therefrom.’’ (Internal quotation marks omitted.) Notopoulos v. State-
wide Grievance Committee, supra, 277 Conn. 227. We therefore defer to
the reviewing committee’s determination that the plaintiff’s statement was
made knowingly and consider only whether the plaintiff made a false state-
ment.
18
In fact, the reviewing committee made no findings as to the reasonable-
ness of the fees included in the June 24, 2013 final accounting.
19
As discussed in footnote 9 of this opinion, the certified issue did not
specifically ask the parties whether the plaintiff’s conduct was dishonest.
However, this is a more accurate statement of the certified issue, and both
parties adequately briefed that issue.