Marino v. Statewide Grievance Committee , 189 Conn. App. 7 ( 2019 )

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DEBRA B. MARINO v. STATEWIDE
GRIEVANCE COMMITTEE
(AC 40274)
Alvord, Prescott and Eveleigh, Js.
Syllabus
The plaintiff attorney appealed to the trial court from the decision of the
reviewing committee of the defendant, the Statewide Grievance Commit-
tee, imposing sanctions on the plaintiff for violating rule 4.4 (a) of the
Rules of Professional Conduct. The plaintiff had represented the former
husband of the complainant, M, in connection with postjudgment marital
dissolution proceedings. After a marshal served a subpoena duces tecum
on M with respect to a noticed deposition, M, who had filed an appear-
ance as a self-represented party, informed the plaintiff that she would
not be attending the deposition. Subsequently, the plaintiff commenced
the deposition for the purpose of noting on the record that M had failed
to appear, and she thereafter prepared and filed a motion for a capias,
in which she represented that M failed to appear for the deposition and
that no motion to quash or for a protective order had been filed. The
day before the scheduled deposition, however, M had filed a motion for
a protective order requesting that the court issue an order preventing
the deposition from taking place. M subsequently filed a grievance
against the plaintiff. The reviewing committee for the defendant found,
by clear and convincing evidence, that the plaintiff violated rule 4.4 (a)
of the Rules of Professional Conduct by engaging in unethical conduct
in filing the motion for a capias, which the committee found had no
substantial purpose other than to embarrass or burden M. After the
defendant affirmed the decision of the reviewing committee, the plaintiff
appealed to the trial court, which dismissed the plaintiff’s appeal. On
the plaintiff’s appeal to this court, held that the trial court’s decision
that the defendant properly concluded that the plaintiff violated rule
4.4 (a) of the Rules of Professional Conduct was not based on clear
and convincing evidence; the plaintiff, when filing the motion for a
capias, was mistaken when she stated that no objection or motion to
quash had been filed and there was no clear and convincing proof to
the contrary, nor was there clear and convincing proof that she filed the
motion for a capias for no substantial purpose other than to embarrass
or burden M, as the reviewing committee made no factual finding to
support its conclusion to that effect, there was no finding that the
plaintiff was aware that M had filed her objection and motion the day
before the plaintiff filed her motion for a capias, there is no statutory
authority or rule of practice that requires an attorney to contact the
court or to check the judicial website prior to filing a motion for a
capias, which may properly be requested when a party is served with
a subpoena duces tecum and fails to appear for a scheduled deposition,
and although the fact that M was a self-represented party was a factor
in the reviewing committee’s determination that the plaintiff had violated
rule 4.4 (a), that rule does not impose additional obligations on an
attorney when dealing with a self-represented party.
Argued December 4, 2018—officially released April 2, 2019
Procedural History
Appeal from the decision of the defendant’s reviewing
committee imposing sanctions on the plaintiff, brought
to the Superior Court in the judicial district of Hartford,
where the court, Robaina, J., dismissed the plaintiff’s
appeal and rendered judgment thereon, from which the
plaintiff appealed to this court. Reversed; judgment
directed.
Barbara M. Schellenberg, with whom, on the brief,
was David B. Zabel, for the appellant (plaintiff).
Leanne M. Larson, assistant chief disciplinary coun-
sel, with whom, on the brief, was Beth L. Baldwin,
assistant chief disciplinary counsel, for the appellee
(defendant).
Opinion
ALVORD, J. The plaintiff, Debra B. Marino, an attor-
ney, appeals from the judgment of the trial court dis-
missing her appeal from the sanctions imposed by the
reviewing committee of the defendant, the Statewide
Grievance Committee, for violating rule 4.4 (a) of the
Rules of Professional Conduct.1 The plaintiff claims that
the court improperly upheld the defendant’s conclusion
that the motion for a capias that she filed while repre-
senting a client in a family proceeding had no substan-
tial purpose other than to embarrass or burden the
complainant, Melissa Mathison.2 We agree with the
plaintiff and reverse the judgment of the trial court.
The following relevant facts largely are undisputed.
The plaintiff represented the complainant’s former hus-
band, Jeffrey Samoncik, in connection with postjud-
ment proceedings following the dissolution of the
Samonciks’ marriage on April 24, 2009. In September,
2013, the complainant filed a motion to modify child
support. On March 15, 2015, the complainant filed a
self-represented appearance in the matter. A hearing
on the complainant’s motion for modification was
scheduled for August 4, 2015. The discovery process in
connection with the complainant’s motion for modifica-
tion had been somewhat prolonged and engendered
communications between the plaintiff and the com-
plainant that were sometimes strained. They exchanged
a series of e-mails that addressed the issue of conduct-
ing a deposition of the complainant prior to the sched-
uled August hearing.
The plaintiff noticed the complainant’s deposition for
July 7, 2015. On July 3, 2015, a marshal served a sub-
poena duces tecum on the complainant with respect to
the noticed deposition. That same day, the complainant
e-mailed the plaintiff and informed her that she would
not be attending the scheduled deposition. The com-
plainant’s July 3, 2015 e-mail reads as follows:
‘‘Please find motions that were recently filed by me.
‘‘Please make note that I will be unable to attend a
deposition on July 7. My resources are limited for child
care costs.
‘‘In regards to the deposition items, 1-8 are erroneous
requests as this information has been supplied to your
office on more than one occasion and there are no
new documents to produce. Items 9-11 are irrelevant
requests and have no bearing on this case. I will be
filing an objection to your deposition.
‘‘Have a great weekend.’’
A few minutes later, the plaintiff responded: ‘‘You
will need to appear. I’m proceeding.’’ The complainant
immediately e-mailed the following response: ‘‘I will
not be attending on the 7th. Proceed as you please.’’
On July 7, 2015, the plaintiff commenced the deposi-
tion for the purpose of noting on the record that the
complainant had failed to appear. That same day, the
plaintiff prepared and filed a ‘‘Postjudgment Motion/
Application for Capias/Civil Arrest Warrant.’’ In her
motion, the plaintiff made the representation that the
complainant ‘‘was duly subpoenaed for a deposition
[and] . . . failed to appear for said deposition in viola-
tion of a valid subpoena duces tecum and no motion
to quash or for protective order was filed.’’ In addition
to requesting that the complainant pay for the costs
of the subpoena, court reporter, and counsel fees, the
plaintiff moved that the complainant ‘‘be precluded
from proceeding with her motions until she appears for
a deposition.’’
On July 6, 2015, the day before the scheduled deposi-
tion, the complainant filed a motion for a protective
order, requesting that the court issue an order pre-
venting the deposition from taking place for the follow-
ing reasons: (1) the complainant was not given
sufficient notice to schedule the deposition at a mutu-
ally convenient date and time; (2) the complainant was
not given sufficient notice to allow her to gather the
documents requested by the plaintiff; (3) the documents
requested by the plaintiff already had been produced
or were the subject of objections filed by the complain-
ant; and (4) the complainant’s discovery objections
should be resolved by the court prior to her deposition.
The plaintiff claimed that she did not receive a copy
of the complainant’s motion for a protective order until
July 8, 2015, which was one day after she had filed her
motion for a capias. She also claimed that, historically,
the complainant e-mailed her copies of the pleadings
that she filed with the court, but that she did not do
so with her motion for a protective order.
In response, the complainant contended that her hus-
band, Michael Mathison, after filing the motion for a
protective order at the courthouse on July 6, 2015, drove
to the plaintiff’s office and handed a copy of that plead-
ing to a woman he identified as Rose Rodriguez, the
plaintiff’s legal assistant. Rodriguez, however, claimed
she had been on vacation on the day in question. At
that time, the only other person who worked in the
plaintiff’s office was Danielle Vailonis, and Vailonis
denied ever receiving any documents from Mathison.
The court, Malone, J., held a hearing on the plaintiff’s
motion for a capias, the complainant’s objection to that
motion, and other outstanding motions on July 27, 2015.
At the beginning of the hearing, the plaintiff stated that
the complainant’s motion to modify child support was
scheduled for a hearing on August 4, 2015. She repre-
sented that she needed information from the complain-
ant in order to prepare adequately for the upcoming
hearing on the complainant’s motion scheduled for the
following week. She claimed that she had tried to sched-
ule the complainant’s deposition twice before, unsuc-
cessfully, and that the complainant would not provide
her with alternate dates and times. The plaintiff
requested that the court issue a capias and then stay
its execution to afford the complainant the opportunity
to appear at the plaintiff’s office for a deposition two
days later, Wednesday at 2 p.m. The plaintiff further
stated: ‘‘If she can’t do Wednesday at 2 [p.m.], I’m happy
to do it at 3 [p.m.]. I’ll do it at 4 [p.m.]. I’ll even do it
after five o’clock if that’s more convenient for her but
I want to take her deposition.’’ The complainant
responded that she could not attend a deposition on
the proposed date because she ‘‘would have to secure
child care. I don’t know. I have a special needs child
and it’s very hard. It’s very difficult for me.’’ She did
not suggest an alternate date. The court ruled: ‘‘It’s no
problem. Until you can agree to a notice for a deposi-
tion, the hearing next week is off.’’
Five days prior to the hearing before Judge Malone,
the complainant filed a grievance complaint with the
defendant on July 22, 2015. On September 25, 2015, the
Ansonia-Milford judicial district grievance panel filed
a determination that there was probable cause that the
plaintiff violated rules 4.4 (a) and 8.4 (4)3 of the Rules
of Professional Conduct. On February 10, 2016, a three
person reviewing committee conducted a hearing on
the matter. In its decision dated April 15, 2016, the
reviewing committee found the following facts by clear
and convincing evidence: ‘‘The [plaintiff] represented
the [c]omplainant’s ex-husband in a dissolution of mar-
riage proceeding. A judgment of dissolution entered on
April 24, 2009, after an uncontested hearing. In Septem-
ber of 2013, the [c]omplainant filed a [postjudgment]
motion to modify child support. On July 3, 2015, the
[c]omplainant was served with a subpoena duces tecum
for a July 7, 2015 deposition at the [plaintiff’s] law office.
The [c]omplainant was a pro se party at the time she
was served with the subpoena. On July 3, 2015, the
[c]omplainant advised the [plaintiff] that she was unable
to appear for the July 7, 2015 deposition and that she
would be filing an objection. The [plaintiff] declined to
reschedule the deposition.
‘‘On July 6, 2015, the [c]omplainant filed an [o]bjec-
tion and a [m]otion for [p]rotective [o]rder to prevent
the deposition from taking place on July 7, 2015. The
[c]omplainant did not appear at the July 7, 2015 deposi-
tion. The deposition went forward. Thereafter on that
same day, the [plaintiff] filed a [m]otion for [c]apias in
connection with the subpoena and the [c]omplainant’s
failure to appear at the deposition. The [plaintiff] did
not check with the [c]ourt or the [c]ourt’s docket to
see whether the [c]omplainant had filed a [m]otion for
[p]rotective [o]rder. Ultimately, the [c]ourt did not grant
the capias.’’
On the basis of the reviewing committee’s factual
findings, it found ‘‘by clear and convincing evidence’’
that the plaintiff violated rule 4.4 (a). It stated: ‘‘This
reviewing committee concludes that the [plaintiff]
engaged in unethical conduct in filing a [m]otion for a
[c]apias, in connection with a subpoena duces tecum
served on the [c]omplainant on July 3, 2015, for a deposi-
tion scheduled for July 7, 2015. The [plaintiff’s] filing
of the [m]otion for a [c]apias on the day of the deposi-
tion, with a [m]otion for [p]rotective [o]rder and an
objection pending, had no substantial purpose other
than to embarrass or burden the [c]omplainant, in viola-
tion of [r]ule 4.4 (a) of the Rules of Professional Con-
duct. The [c]omplainant had advised the [plaintiff] that
she was unable to appear for the July 7, 2015 deposition
and that she would be filing an objection. The [plaintiff]
did not check to see whether a [m]otion for [p]rotective
[o]rder had in fact been filed before filing the [m]otion
for a [c]apias.’’ After concluding that the plaintiff was
in violation of rule 4.4 (a), the reviewing committee set
forth sanctions to be imposed.
Upon the plaintiff’s request for review pursuant to
Practice Book § 2-35 (k),4 the defendant affirmed the
decision of the reviewing committee at a meeting held
on June 16, 2016. The defendant stated: ‘‘The [defen-
dant] concluded that the reviewing committee’s find-
ings, conclusions and decision that the [plaintiff]
violated [r]ule 4.4 (a) of the Rules of Professional Con-
duct were not in excess of the authority of the reviewing
committee; erroneous and contrary to law; clearly erro-
neous in view of the reliable, probative and substantial
evidence on the whole record; arbitrary or capricious
or characterized by abuse of discretion or clearly
unwarranted exercise of discretion. The [defendant]
concluded that the decision was fully supported by the
substantial evidence in the record.’’
Pursuant to Practice Book § 2-38,5 the plaintiff filed
an appeal with the Superior Court. In its March 9, 2017
memorandum of decision, the court found that there
was ‘‘sufficient evidence in the record to support the
[defendant’s] conclusion’’ that the motion for a capias
had no substantial purpose other than to embarrass or
burden the complainant. In dismissing the plaintiff’s
appeal, the court concluded: ‘‘Having reviewed the
record and considered the arguments presented to this
court, the court concludes that the facts as found and
the conclusion of the [defendant] are correct upon the
application of the standard required.’’ From that judg-
ment, the plaintiff now appeals to this court.
Before considering the plaintiff’s claim, we first
address the standard of review applicable to grievance
appeals. ‘‘[T]he clearly erroneous standard . . . is the
preferable standard of review in attorney grievance
appeals. . . . The clearly erroneous standard of review
provides that [a] court’s determination is clearly errone-
ous only in cases in which the record contains no evi-
dence to support it, or in cases in which there is
evidence, but the reviewing court is left with the definite
and firm conviction that a mistake has been made. . . .
‘‘Additionally, because the applicable standard of
proof for determining whether an attorney has violated
the Rules of Professional Conduct is clear and convinc-
ing evidence . . . we must consider whether the [fact
finder’s] decision was based on clear and convincing
evidence. . . . [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.’’
(Citations omitted; internal quotation marks omitted.)
Chief Disciplinary Counsel v. Zelotes, 152 Conn. App.
380, 386, 98 A.3d 852, cert. denied, 314 Conn. 944, 102
A.3d 1116 (2014). ‘‘The burden is on the statewide griev-
ance committee to establish the occurrence of an ethics
violation by clear and convincing proof.’’ (Internal quo-
tation marks omitted.) Notopoulos v. Statewide Griev-
ance Committee, 277 Conn. 218, 226, 890 A.2d 509, cert.
denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39(2006).
Accordingly, the principal issue in this appeal is
whether there is clear and convincing evidence in the
record for the defendant to find that the plaintiff vio-
lated rule 4.4 (a) of the Rules of Professional Conduct.
For us to make that determination, we must construe
the language in that rule. ‘‘Given that the Rules of Pro-
fessional Conduct appear in our Practice Book, and
given that [t]he interpretive construction of the rules
of practice is to be governed by the same principles as
those regulating statutory interpretation . . . Wise-
man v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027(2010); we employ our well established tools of statu-
tory construction’’ to determine the meaning of the
relevant language in rule 4.4 (a). (Internal quotation
marks omitted.) Helmedach v. Commissioner of Cor-
rection, 168 Conn. App. 439, 459, 148 A.3d 1105 (2016),
aff’d, 329 Conn. 726, 189 A.3d 1173 (2018). ‘‘The interpre-
tation and application of a statute, and thus a Practice
Book provision, involves a question of law over which
our review is plenary. . . .
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case . . . . When constru-
ing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case . . . . In seeking
to determine that meaning . . . [General Statutes] § 1-
2z directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . We recognize that terms in a statute
are to be assigned their ordinary meaning, unless con-
text dictates otherwise . . . .’’ (Citation omitted; foot-
note omitted; internal quotation marks omitted.)
Wiseman v. Armstrong, supra, 295 Conn. 99–100.
In accordance with § 1-2z, we turn to the relevant
language of rule 4.4 (a) of the Rules of Professional
Conduct, which provides that a lawyer, in representing
a client, ‘‘shall not use means that have no substantial
purpose other than to embarrass . . . or burden a third
person . . . .’’ (Emphasis added.) We conclude that
the meaning of the rule is clear and unambiguous. An
attorney is in violation of rule 4.4 (a) if he or she, in
representing a client, employs resources and methods
that, although not illegal, have no important or consider-
able purpose other than to embarrass, delay, or burden
a third person. Such actions are prohibited when the
attorney engages in them for no other significant pur-
pose other than to harass the third person. It is
important to note that an attorney’s lawful actions taken
on behalf of his or her client may often cause embar-
rassment or inconvenience to an opposing party or
another person. The attorney does not violate the rule,
however, unless the means were employed for no legiti-
mate and considerable purpose other than to cause
embarrassment or inconvenience to the third person.
Accordingly, for the defendant to conclude that the
plaintiff violated rule 4.4 (a) of the Rules of Professional
Conduct, there must be clear and convincing proof that
the only significant reason that the plaintiff had for filing
the motion for a capias was to embarrass or burden
the complainant. We therefore must look to the factual
findings of the reviewing committee to determine
whether they support the conclusion that the rule was
violated. The reviewing committee found: (1) the com-
plainant, a self-represented party at the time, was served
with a subpoena duces tecum to appear at a July 7,
2015 deposition at the plaintiff’s office; (2) the day she
was served, the complainant advised the plaintiff that
she was unable to appear at the scheduled deposition
and that she would be filing an objection; (3) the plain-
tiff declined to reschedule the deposition; (4) the com-
plainant filed an objection and a motion for a protective
order on July 6, 2015, to prevent the deposition from
going forward on July 7, 2015; (5) the complainant did
not appear at the scheduled deposition, but the deposi-
tion went forward; (6) the plaintiff thereafter filed a
motion for a capias on the same day referencing the
subpoena and the complainant’s failure to appear at
the scheduled deposition; (7) the plaintiff did not
‘‘check with the [c]ourt or the [c]ourt’s [d]ocket’’ to see
if the complainant had filed a motion for a protective
order before filing her motion for a capias; and (8) the
court did not grant the plaintiff’s motion for a capias.6
Significantly, the reviewing committee made no fac-
tual finding to support the conclusion that the plaintiff’s
action in filing the motion for a capias had no legitimate
or significant purpose other than to embarrass or bur-
den the complainant.7 Prior to making the conclusory
statement that the plaintiff violated rule 4.4 (a) of the
Rules of Professional Conduct, the statement was made
by the reviewing committee that the plaintiff filed the
motion for a capias while the complainant’s objection
and a motion for a protective order were pending. There
was, however, no finding that the complainant’s hus-
band had delivered a copy of her motion for a protective
order at the plaintiff’s office, or that the plaintiff was
aware that the complainant had filed her objection and
motion the day before the plaintiff filed her motion for
a capias. Instead, the reviewing committee focused on
the fact that the complainant was a self-represented
party, that she indicated that she would be filing an
objection, and that the plaintiff failed to contact the
court or check the judicial website8 to determine
whether the complainant had filed such a pleading.9
At oral argument before this court, the defendant’s
counsel admitted that there is no statutory authority or
Practice Book rule that would require an attorney to
contact the court or to check the judicial website prior
to filing a motion for a capias under such circumstances.
Additionally, the defendant’s counsel did not dispute
that a capias properly may be requested when a party
is served with a subpoena duces tecum and fails to
appear for a scheduled deposition. Instead, the defen-
dant’s counsel argued that the plaintiff should have
waited another day before filing her motion for a capias.
The fact that the complainant was self-represented
appears to have been a factor in the reviewing commit-
tee’s determination that the plaintiff violated rule 4.4
(a) of the Rules of Professional Conduct. As previously
noted, it was one of the factual findings that the
reviewing committee stated had been found by clear
and convincing evidence in its April 15, 2016 decision.
Further, a review of the transcript of the February 10,
2016 hearing before the reviewing committee reveals
that one of the members of the panel had serious con-
cerns about the self-represented status of the complain-
ant. That member addressed the plaintiff as follows:
‘‘Yeah, but the issue here though, you’re talking about
a pro se [party]. So then somebody who is not a lawyer
with an arrest warrant based on information that she
received from her saying that she would not be able to
make the 7th. Is it your practice generally if somebody
does not appear in a deposition to right away issue a
capias, or do you try to somehow find another date for
deposition and then go ahead and do what you need
to do?’’ The plaintiff responded that she normally did
not subpoena people to attend depositions because in
most cases she coordinates a date with the attorney
representing the other party. She also said that in this
case, she subpoenaed the complainant because it had
been a very contentious matter and that she and the
complainant were unable ever to coordinate dates.
The same member of the panel subsequently made
the following remarks: ‘‘In this particular instance,
doing something that, honestly, you know, you’re talk-
ing about a pro se person. You know, having somebody
see a motion for arrest that has children to take care
of, I mean, it’s a scary proposition, honestly.10 . . .
‘‘So I think that it would have been, perhaps, much
more prudent for you to go on the docket and see
whether or not a motion, an objection, a [m]otion for
[p]rotective [o]rder, has been filed or call the court
and say, oh, by the way, you know, you may not have
docketed it yet, but did somebody file an objection, a
[m]otion for [p]rotective [o]rder against my motion
. . . before going ahead . . . and doing a request for
a capias. . . . That’s my issue with this particular case
not having made a—I’m not making a decision on it.’’
(Footnote added.) When the plaintiff responded that
she understood, the same member continued: ‘‘I’m just
looking at issues that come up and facts that come up
that do not quite make sense from a pro se perspec-
tive.’’11 We note that rule 4.4 of the Rules of Professional
Conduct does not impose additional obligations on an
attorney when dealing with a self-represented party.12
For these reasons, we conclude that the court’s deci-
sion that the defendant properly concluded that the
plaintiff violated rule 4.4 (a) of the Rules of Professional
Conduct is not based on clear and convincing evidence.
The conclusory statement that the defendant demon-
strated such a violation by clear and convincing evi-
dence is belied by the dearth of proof in the record.
We are particularly concerned about the determinations
of the reviewing committee, the defendant, and the
trial court for the reasons set forth in Brunswick v.
Statewide Grievance Committee, 103 Conn. App. 601,
931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d
244 (2007). The administration and interpretation of
prohibitions against actions that a lawyer legitimately
employs when zealously representing a client, which
actions may cause embarrassment or inconvenience to
a third person, ‘‘should be tempered by concern to avoid
overenforcement. . . . For that reason, [t]ribunals usu-
ally sanction only extreme abuse.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Id., 620.
Rule 4.4 (a) of the Rules of Professional Conduct
‘‘should be applied cautiously in light of its potential
for chilling legitimate but difficult advocacy.’’ Id. Danger
exists that courts or disciplinary authorities might pun-
ish conduct as unethical that is the result of a simple
mistake on the part of counsel, perceiving such conduct
as deliberate indifference to the Rules of Professional
Conduct. See id., 620–21. In the present case, the plain-
tiff filed a motion for a capias and stated that no objec-
tion or motion to quash had been filed. She was
mistaken; there was no clear and convincing proof to
the contrary. Moreover, there was no clear and convinc-
ing proof that she filed the motion for no substantial
purpose other than to embarrass or burden the com-
plainant. Accordingly, because the evidence in the
record does not support the court’s determination, we
order that the sanctions be vacated. See Shelton v. State-
wide Grievance Committee, 277 Conn. 99, 111–12, 890
A.2d 104 (2006).
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the plain-
tiff’s appeal and vacating the sanctions imposed by the
reviewing committee.
In this opinion the other judges concurred.
1
Rule 4.4 (a) of the Rules of Professional Conduct provides: ‘‘In represent-
ing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods
of obtaining evidence that violate the legal rights of such a person.’’
2
Melissa Mathison was formerly known as Melissa Samoncik. Following
her divorce from Jeffrey Samoncik, she married Michael Mathison.
3
The reviewing committee determined that the record lacked clear and
convincing evidence that the plaintiff violated rule 8.4 (4) of the Rules of
Professional Conduct, and that determination was not challenged.
4
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. . . .’’
5
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 . . . . 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 State-
wide Grievance Committee under Section 2-35 (k). . . .’’
6
The reviewing committee failed to note Judge Malone’s actual ruling on
the plaintiff’s motion for a capias and the complainant’s objection to that
motion. The court’s order was as follows: ‘‘Until there is an agreement on
a deposition date and time then no hearing on a modification of child support
can take place. Hearing off.’’
7
At the hearing before Judge Malone on July 27, 2015, the plaintiff repre-
sented that the hearing on the complainant’s motion to modify child support
was scheduled for August 4, 2015, and that she had tried, without success,
to schedule the complainant’s deposition in preparation for that hearing.
The plaintiff indicated that she had noticed the complainant’s deposition
twice, but that the complainant was ‘‘completely interfering with the discov-
ery process, I can’t even get her to appear for a deposition.’’ The plaintiff
then asked the court to issue the capias, but to stay its execution in order
to afford the complainant the opportunity to appear for a deposition at the
plaintiff’s office.
8
The record reflects that the family matter at issue between the plaintiff’s
client and the complainant was not an electronically filed case. If a party
files a pleading electronically, the time and date of the filing is available for
verification shortly after the filing. This family case is a paper file; the
pleadings are in paper form and are mailed, faxed or hand-delivered to the
office of the court clerk. The clerk date stamps the pleading upon receipt
(the ‘‘official’’ filing date), but data entry of that pleading into the court’s
computer system frequently is not made the same day that the pleading
is received. The defendant’s counsel conceded at the hearing before the
reviewing committee that although the complainant’s objection and the
motion for a protective order were delivered to the court and have an official
filing date of July 6, 2015, there is no evidence as to when data entry of
those filings actually occurred. Accordingly, there is no evidence as to when
those filings were available for opposing counsel to view. As noted by the
plaintiff’s counsel, and not disputed by the defendant’s counsel, data entry
of those filings could have been made ‘‘on July 6th or July 7th or July 8[th]
or any other time.’’
9
At the hearing before the reviewing committee, the plaintiff testified that
she had no reason to check with the court to see if the complainant had
filed a motion for a protective order because, historically, the complainant
copied her on motions via e-mail. The complainant did not dispute that repre-
sentation.
10
In his closing argument before the reviewing committee, the plaintiff’s
attorney stated: ‘‘It is clear that a lawyer has a right to file an application
for a capias. An application is not a capias. Somebody isn’t getting [arrested].
Whether or not the pro se litigant understood that is irrelevant to the lawyer’s
ethical obligations.’’
11
Although this panel member suggested that different rules should apply
when interacting with a self-represented party, it is well settled that ‘‘the
right of self-representation provides no attendant license not to comply with
relevant rules of procedure and substantive law.’’ (Internal quotation marks
omitted.) Anghel v. Saint Francis Hospital & Medical Center, 118 Conn.
App. 139, 139 n.1, 982 A.2d 649 (2009), cert. denied, 294 Conn. 932, 986 A.2d
1055, cert. denied, 559 U.S. 1069, 130 S. Ct. 2111, 176 L. Ed. 2d 726 (2010).
12
We do not determine that the fact that the complainant was self-repre-
sented may not be introduced for the purpose of giving the fact finder the
entire relevant context of the plaintiff’s conduct. We determine only that
the particular evidence that she was a self-represented party does not of
itself provide a proper basis for an adverse inference that the plaintiff
violated rule 4.4 (a) of the Rules of Professional Conduct.