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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

8.1:101      Model Rule Comparison

Conn. Rule 8.1 is identical to Model Rule 8.1, apart from two style differences:

1. Sections (a) and (b) of the Model Rule are labeled (1) and (2) in the Conn. Rule; and

2. Differences in capitalization.

8.1:102      Model Code Comparison

The equivalent Model Code provisions are EC 1-2, 1-3, and 1-6, and DR 1-101(A)&(B) and 1-103(B).

8.1:200   Bar Admission

Primary Connecticut References: CT Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

Bar admission in Connecticut is governed by Conn. Gen. Stat. ãã51-80 and 51-81 and Practice Book ãã 2-1 to 2-22. Conn. Gen. Stat. ã51-80 delegates the power to set bar admission rules to the Superior Court. The Connecticut Supreme Court has held that such rules have the force of statute. Application of Dodd, 132 Conn. 237, 43 A.2d 224 (1945). Proceedings for admission of attorneys are investigations by courts to determine qualifications of candidates, not actions at law. Rosenthal v. State Bar Examining Comm., 116 Conn. 409, 165 A.2d 211 (1933). Conn. Gen. Stat. ã51-81 grants investigatory powers to county committees on recommendations for admission to the bar, and grants the chairmen of those committees subpoena powers over all persons who may have information useful to the committees. Failure to answer a subpoena is punishable by imprisonment for up to sixty days.

Practice Book ãã 2-1 to 2-22 create a Bar Examining Committee to handle bar admissions, and lay down rules governing the CommitteeÁs operations and substantive qualifications for bar admission. Ethical standards for bar admission fall under ã2-8(3), which requires of an applicant Ëgood moral characterÓ, along with either passage of an examination in professional responsibility or completion of a course in professional responsibility in accordance with regulations established by the Bar Examining Committee. The Supreme Court has held that the ultimate burden of proving good moral character lies on the applicant. Admission of Warren, 149 Conn. 266, 178 A.2d 528 (1962). The Court has held that every attorney in the state has the right to participate in these proceedings because every such attorney has a franchise that is regarded as a property right which he has a right to protect against a bar applicant whom he thinks is not qualified. Application of Pagano, 207 Conn. 336, 541 A.2d 104 (1988).

8.1:210      Bar Admission Agency

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.1:220      Bar Admission Requirements

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.1:230      Admission on Motion

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Connecticut References: CT Rule 8.1(1)
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Connecticut References: CT Rule 8.1(2)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

Rule 8.1(2) contains two rules. First, a lawyer must not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter. Second, a lawyer must not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.

On four occasions in the 1990s, courts have issued reported decisions under Rule 8.1(2) in which a lawyer was alleged to have withheld information from the Grievance Committee or the Grievance Counsel. In only one of these cases, however, was a lawyer charged with failing to supply information voluntarily. In Statewide Grievance Comm. v. Browne, 2001 WL 1614323 (Conn. Super. 2001), a trial court found that a lawyer had failed to disclose to the Grievance Committee a letter that was of importance to a proceeding against him before the Committee. The lawyer had promised a creditor of his clientÁs that he would pay the creditor out of the proceeds of a settlement that his client was to receive, and then allegedly sent him a letter misrepresenting the amount of money available from the settlement to satisfy the creditor. The court found that the lawyer failed to disclose the letter to the Committee either Ëknowingly or carelessly,Ó and on this basis alone it reprimanded him. The court did not explain why the lawyer had an obligation to bring this particular letter forward or why it interpreted 8.1(2) to cover careless as well as knowing failures to disclose.

In the remaining three cases, a court found that a lawyer had violated Rule 8.1 by failing to respond to a lawful demand for information from a disciplinary authority, specifically the Grievance Committee or the Grievance Counsel. In Statewide Grievance Comm. v. Timbers, 1996 WL 745846 (Conn. Super. 1996), a trial court found that a lawyer had failed to respond to the CommitteeÁs subpoenas for documents, and by doing so had violated Rule 8.1. In Statewide Grievance Comm. v. Douglas-Bailey, 1998 WL 846094 (Conn. Super. 1998), a trial court found that a lawyer violated the rule by failing to supply information in response to two letters from the Committee. In Statewide Grievance Comm. v. Baldwin, 2001 WL 1560895 (Conn. Super. 2001), a trial court found that a lawyer had violated the rule by failing to respond to the CounselÁs request for information. The courts in these cases have assumed that any failure to respond to a request from the Committee or the Counsel constitutes a violation of Rule 8.1. In all of these cases, findings of Rule 8.1 violations were combined with findings of other violations.

The duty to volunteer information does not apply where there is no application to the bar or disciplinary matter pending. State v. Ankerman, No. CR-99195282, 2000 WL 1862860 (Conn. Super. Ct. Nov,. 28, 2000) (denying attorneyÁs motion to suppress Ëself-incriminat[ing]Ó statements in letter attorney sent to grievance committee where letter was unsolicited and no matter involving attorney was pending before committee).

8.1:410      Protecting Client Confidential Information

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary Connecticut References: CT Rule 8.1(2)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

None of the alleged violations of Rule 8.1(b) in reported court decisions have involved reinstatement proceedings.

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:
Connecticut Commentary:

8.2:101      Model Rule Comparison

Conn. Rule 8.2 and Model Rule 8.2 are identical. Both Rules prohibit a lawyer from making a statement that he knows to be false or with reckless disregard as to its truth or falsity regarding Ëthe qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.Ó Lawyers, who are candidates for judicial office, must also comply with the Code of Judicial Conduct.

8.2:102      Model Code Comparison

The analogue to Conn. Rule 8.2(a) can be found in Model Code DR 8-102(A) and (B). DR 8-102(A) provides that a lawyer Ëshall not knowingly make false statements of fact concerning the qualifications for a candidate for election or appointment to a judicial office.Ó DR 8-102(B) states, in part, a lawyer Ëshall not knowingly make false accusations against a judge or other adjudicatory officer.Ó

Conn. Rule 8.2(b) and DR 8-103 are virtually identical.

8.2:200   False Statements About Judges or Other Legal Officials

Primary Connecticut References: CT Rule 8.2(a)
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Sullivan v. Town of Monroe, No. CV 000370545, 2001 WL 9513636 (Conn. Super. July 17, 2001), the court held that an attorneyÁs statements to the court violated Rule 8.2(a). In Sullivan, the attorney claimed that the court was guilty of gender bias towards her during the course of a particular proceeding. The court found that the attorneyÁs statements were Ëpalpably untrueÓ and that the attorney Ëacted dishonestly in making them.Ó Sullivan, 2001 WL at **14. Further, the court held that Ëconfrontational remarks to a judicial authority in and of themselves constitute a violation of Rule3.5(3).Ó Id.

In Evans v. Commissioner of Corrections, 37 Conn. App.672, 657 A.2d 1115 (1995), the court warned counsel Ëagainst making statements not intended to question the courtÁs integrity but that might be construed in that manner.Ó Evans, 37 Conn.App. at 677, n.6. In Evans, the attorney questioned the habeas judge whether he had read certain relevant materials.

8.2:300   Lawyer Candidates for Judicial Office

Primary Connecticut References: CT Rule 8.2(b)
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Formal Opinion 45 (revising Formal Opinion 13), the Committee opined that an attorney may endorse a candidate for judicial office. The Opinion noted, however, certain caveats attendant to an attorneyÁs endorsement of a candidate. For instance, a lawyer should not endorse a candidate if Ëhe believes the candidate lacks essential qualifications for the office or [the] opposing candidate is better qualified.Ó Additionally, a lawyer who endorses a candidate should do so without reference to his membership in a bar association or like organization, Ëin order to avoid the implication of any endorsement by the association of any further weight being given to the endorsement of the lawyer by reason by such membership.Ó

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:
Connecticut Commentary:

8.3:101      Model Rule Comparison

Conn. Rule 8.3 and Model Rule 8.3 are substantially similar. Subsection (a) of the Rules are identical regarding the requirement that an attorney report another lawyerÁs violation of the Rules, except for Conn. Rule 8.3(a)Ás additional sentence. Connecticut adds Ë[a] lawyer may not condition the settlement of a civil dispute involving allegations of improprieties on the part of a lawyer on an agreement that the subject misconduct not be reported to the appropriate disciplinary authority.Ó

Conn. Rule 8.3(b) and Model Rule 8.3(b) are identical regarding when a lawyer must report the misconduct of a judge.

Conn. Rule 8.3(c) and Model Rule 8.3(c) are in substance the same, but are couched in different terms. Both Rules do not require the disclosure of information protected by Rule 1.6 or information gleaned by the attorney in his assistance to a fellow lawyer while serving as a member on certain committees. In Connecticut, information is protected if the lawyer serves on a Ëcourt appointed or bar association committee that renders assistance to ill or impaired lawyers or while serving as a member of a bar association professional ethics committee.Ó Under the Model Rules, information is protected if the lawyer is a member of Ëan approved lawyers assistance program to the extent that such information would be confidential if it were communicated subject to the attorney-client privilege.Ó

8.3:102      Model Code Comparison

Model Code DR 1-103 is less detailed that Conn. Rule 8.3. DR 1-103(A) provides that a lawyer must report non-privileged information regarding a violation of a Disciplinary Rule to the appropriate authority or tribunal. DR 1-103(B) provides that a lawyer must fully reveal all non-privileged information regarding another lawyerÁs or judgeÁs violation upon a proper request from the authority empowered to investigate such violations.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Connecticut References: CT Rule 8.3(a)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Field v. Kearns, No. CV 930301282S, 1995 WL 216824, at **5 (Conn. Super. April 3, 1995), the court noted that Ë[t]here is an absolute duty imposed on members of the bar to report any instance of substantial professional misconduct to the appropriate authority.Ó

In State of Connecticut v. Ankerman, No. CR99195282, 2000 WL 1862860 (Conn. Super. Nov. 28, 2000), the court opined that Rule 8.3(a) requires mandatory disclosure by attorneys of ethical violations of other attorneys. The court noted, Ëeven if the rules could be read to mandate self-reporting under certain circumstances, there is no question that the [attorneyÁs] fifth amendment privilege would trump any such mandate.Ó Informal Opinion 97-39 held that ËRule 8.3 does not contain any requirement that a lawyer report himself or herself.Ó

In Prue v. Statewide Grievance Committee, No. CV 940539956S, 690 A.2d 898, 44 Conn.Supp. 348 (Conn.Super. 1995), the court held that an attorney had standing to file a grievance complaint against his fellow attorney, notwithstanding the fact that the attorneyÁs clients were satisfied. In Prue, the attorney failed to safeguard his clientÁs funds as required by Rule 1.15(b). Although the clients were satisfied and no other claims were made, the court noted that the complaint filed by the attorney Ëwas not only proper but possibly even mandated by Rule 8.3 of the Rules of Professional Conduct.Ó

In Informal Opinion 89-21, the Committee opined that a lawyer had a duty pursuant to Rule 8.3(a) to report the misconduct of his former partner. In this case, the former partner failed to file suit on behalf of his client, failed to tell the client of this Ëoversight,Ó and fraudulently attempted to cover his mistake by paying the client a sum of money, representing it was from the defendantÁs insurer. The Opinion held that the attorney is obligated to report these ethical violations under Rule 8.3(a). Further, if the attorney failed to report such violation, the attorney, himself, would be in violation of the Rules.

The duty to report professional misconduct is designed to Ëgovern future conduct and to assess past conduct from the point of professional discipline of the attorney.Ó Rule 8.3(a), therefore, does not require an attorney to report the professional misconduct of a deceased attorney. Informal Opinion 92-10.

Informal Opinion 93-14 noted that in order for an attorney to have a duty to report, pursuant to Rule 8.3(a), he must have sufficient knowledge of the ethical violation. Such knowledge may Ëbe inferred from the circumstances.Ó

In Informal Opinion 96-20, the Committee outlined Rule 8.3(a)Ás burdens of Ë(1) making a preliminary subjective judgment whether the offense rises to a level sufficient to raise a substantial question about the lawyerÁs honesty, trustworthiness or fitness to practice law; and (2) acting on the basis of that personal judgment.Ó In this case, the inquiring attorney believed a fellow associateÁs actions amounted to misconduct. The managing partner of the firm, however, assured the inquiring attorney that the actions did not implicate the attorneyÁs fitness to practice. The Opinion held that the determination of whether the attorney should report the misconduct is a personal decision. Informal Opinion 97-30 also cited the two burdens Rule 8.3(a) imposes upon attorneys.

In Informal Opinion 97-13, the Committee opined, pursuant to Rule 8.3(a), that a lawyer may not participate in a fee dispute settlement agreement which contained a provision that the client would not report the attorneyÁs misconduct to the appropriate authority.

Informal Opinion 97-33 noted that a lawyerÁs unlawful redaction of a discovery document violated Rule 3.4. As such, opposing counsel had a duty under Rule 8.3(a) to report the misconduct to the appropriate authority. The Opinion highlighted that this sort of conduct is Ëevidence of failure to appreciate the role of a lawyer in our system of justice, which failure is inconsistent with his Çfitness as a lawyerÁ.Ó

Informal Opinion 98-10 held Rule 8.3(a) requires an attorney to report the improper witnessing of a deed because it is an act involving deceit or misrepresentation in violation of Rule 8.4(3).

Informal Opinion 99-44 noted that Rule 8.3 requires Ëknowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyerÁs honesty, trustworthiness or fitness as a lawyer in other respects.Ó

Informal Opinion 99-48 held that Rule 8.3(a)Ás requirement that the lawyer report misconduct to the Ëappropriate disciplinary authorityÓ may be satisfied by reporting the conduct to the court.

In Informal Opinion 94-11, the Committee opined that an attorneyÁs mandatory disclosure of a fellow attorneyÁs misconduct does not require the filing of a formal grievance. In this case, the inquiring attorney wished to disclose information about a fellow attorneyÁs substance abuse and spousal abuse, that the attorney believed prevented competent representation of clients. The Opinion noted that the attorney had an obligation to report to the Grievance Committee this information because the attorneyÁs actions raised a substantial question as to the attorneyÁs fitness to practice.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Connecticut References: CT Rule 8.3(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

Informal Opinion 94-33 discussed when the conduct of a judge or an attorney triggers the duty to report misconduct. In this case, the inquiring attorney learned that on the day the written decision was released, opposing counsel received a copy of the trial judgeÁs opinion. Opposing counsel informed the clerk that there was an error in the opinion. Two hours later, the opinion was substantially revised and filed. The Committee opined that this was not a violation that rose to the level of a ËsubstantialÓ violation. The Opinion noted that a substantial violation involves situations where Ëan intentional, perhaps even pre-meditated, effort to abuse the position of attorney to the advantage of the offending attorney.Ó Although the Committee held that the violation at hand did not mandate disclosure, it noted that the attorney was permitted inform the appropriate authority.

8.3:400   Exception Protecting Confidential Information

Primary Connecticut References: CT Rule 8.3(c)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Informal Opinion 90-31, the Committee opined that a lawyer may be prevented from disclosing another attorneyÁs misconduct pursuant to Rule 1.6's mandates of confidentiality. The inquiring attorney, Attorney B, learned of the other attorneyÁs misconduct, Attorney X, through representation of his client. Specifically, Attorney B was retained to seek money that Attorney X had misappropriated from his client. The Committee opined that Attorney B could not disclose the specifics of the misappropriation (a violation of the Rules) to the appropriate authorities because this information was related to representation of his client and was protected by Rule 1.6. Informal Opinion 94-30 is in accord.

In Informal Opinion 92-23, the Committee noted that Rule 8.3(c) does not require disclosure of confidential information. This exception, however, is inapplicable where the information has already been disclosed in court proceedings.

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:
Connecticut Commentary:

8.4:101      Model Rule Comparison

Conn. Rule 8.4 is identical to Model Rule 8.4. However, Conn. Rule 8.4 does not include a Comment comparable to Model Rule Comment [1] that was added in 2002. Model Rule Comment [1] states Ë[l]awyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.Ó

The Conn. Rule Comment also does not include Model Rule Comment [3] that was added in 1998, addressing discriminatory conduct. Comment [3] states ËA lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.Ó

8.4:102      Model Code Comparison

Conn. Rule 8.4(1-4) preserves the substance of DR 1-102(A), yet differs somewhat in the language. DR 1-102(A) provided ËA lawyer shall not: (1) Violate a Disciplinary Rule. (2) Circumvent a Disciplinary Rule through the actions of another. (3) Engage in illegal conduct involving moral turpitude. (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law.Ó

Paragraph 5 of Conn. Rule 8.4 is substantially similar to DR 9-101(C). There is no direct counterpart to paragraph 6 in the Model Code. However, EC 7-34 provided that "[a] lawyer . . . is never justified in making a gift or loan to a [judicial officer] except as permitted by . . . the Code of Judicial Conduct." In addition, EC 9-1 stated that a lawyer "should promote public confidence in our [legal] system and in the legal profession."

8.4:200   Violation of a Rule of Professional Conduct

Primary Connecticut References: CT Rule 8.4(1)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Statewide Grievance Committee v. Browne, No. CV010381707, 2001 WL 1614323. *1 (Conn. Super. Nov. 19, 2001), the court issued a reprimand against the defendant after finding violations of multiple sections of the Rules of Professional Conduct The defendant settled a personal injury action on behalf of his client. The client had become indebted to a third party and agreed to protect the claim of this third party if the matter was settled or if he obtained a judgment. The defendant testified that he prepared a settlement statement showing a negative balance, thereby indicating the absence of funds to pay the third partyÁs claim. The Grievance Committee claimed that the defendantÁs action indicating to the Committee that no funds were left in his clientÁs settlement was false and violated Rule 1.15(b). Further, the use of any statement that falsely indicated a negative net settlement balance was in violation of Rule 3.3(a)(1) and (2), 8.1(1) and (2) and 8.4(1), (3) and (4) of the Rules of Professional Conduct.

In Statewide Grievance Committee v. Frimberger, No. CV9905904091, 2000 WL 327405, *1 (Conn. Super. Mar. 13, 2000), the Committee alleged that the defendant, a member of the Connecticut bar (but who had not practiced law in ten years), a real estate broker and resident of another state, violated Conn. Rules 4.3 and 8.4(1) and (3). The plaintiff alleged that defendant failed to advise a third party that she should receive the advice of an attorney in the transfer of her condominium to defendant and that defendant took advantage of this third party in the real estate deal. However, the court received no evidence to support these allegations and dismissed the presentment.

In Statewide Grievance Committee v. Somers, No. CV980585853, 1999 WL 732978, *1 (Conn. Super. Sept. 8, 1999), the court held that plaintiff proved by clear and convincing evidence that the defendant attorney counseled false testimony, engaged in misrepresentation to the Superior Court, engaged in conflicts of interest, and presented meritless claims to the Superior Court, in violation of multiple Rules of Professional Conduct. Accordingly, the Court ordered that the defendant be disbarred from the practice of law.

Under Informal Opinion 88-15, an attorney, who acts as a placement agent for attorneys seeking temporary employment, is subject to the Rules of Professional Conduct, as are the attorneys he temporarily places.

8.4:300   Commission of a Crime

Primary Connecticut References: CT Rule 8.4(2)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Statewide Grievance Committee v. Morelli, No. CV000596154, 2000 WL 1868222, *1 (Conn. Super. Nov. 29, 2000), plaintiff sought disciplinary action against defendant as a result of a felony conviction. The defendant entered a plea of guilty to the charge of filing false statements in violation of 18 U.S.C. ã 1005 and was ordered to pay restitution and sentenced to five months imprisonment and two years of supervised release. After considering all of the facts of the case and aggravating and mitigating factors, the court suspended defendantÁs license to practice law for the term of his supervised release. The court cited In re Culpepper, 770 F.Supp. 366, 374 (E.D. Mich. 1991) in stating that Ëit would be a disservice to the public, to the practicing bar and [the] Bench to effectively say that, although a person is legally disabled, by virtue of his criminal conviction status, from serving as a juror, it is acceptable for him to serve as an officer of this court.Ó

In Statewide Grievance Committee v. Small, No. CV940541637, 1999 WL 195814, *1 (Conn. Super. Ct. Mar. 18, 1999), the court suspended the defendant from the practice of law for a period of five years. The defendant had been involved in a motor vehicle accident when he was driving home from a party late in the evening. His passenger was killed and he was injured; his blood test results revealed a .06 blood alcohol ratio. At the time of the accident, the defendantÁs license had been suspended for his failure to pay prior speeding tickets. The State of New York convicted the defendant of criminally negligent homicide, a felony by New York law and a misdemeanor by Connecticut law. The defendant was licensed to practice law in both states. The court held that it was required to discipline the defendant for the serious crime committed, regardless of the fact that the crime was not a felony in Connecticut. However, after considering the facts of the case and the mitigating circumstances, the court stated that the defendantÁs actions caused an unfortunate death but did not reflect on his ability to practice law.

Informal Opinion 99-50 states that if an attorney brings a criminal complaint solely to gain an advantage in a civil action he can be found guilty of extortion, a criminal offense, in violation of Rule 8.4(2).

The defendant attorneyÁs license to practice law was suspended for a period of one year by the court in Statewide Grievance Committee v. Skolnick, No. CV970407542, 1998 WL 226048, *1 (Conn. Super. Apr. 24, 1998). This discipline resulted from defendantÁs felony conviction of violating 26 U.S.C. ã 7206(1), willfully subscribing a false tax return.

Informal Opinion 98-9 holds that the surreptitious recording of an attorneyÁs private phone calls can be a violation of Rule 8.4(2) or 8.4(3) if the calls are recorded in violation of Conn. Gen. Stat. ã 52-570d or any other applicable statute. Additionally, Informal Opinion 94-30 states that an attorney representing a husband in a divorce proceeding cannot report misconduct of opposing counsel if information regarding the misconduct was obtained through the husband illegally wiretapping the wifeÁs conversations with her counsel. It is a federal crime to use tainted information if the illegal source is known.

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Connecticut References: CT Rule 8.4(3)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Nusbaum & Parrino v. Harrick, No. CV000179122, 2002 WL 207556, *1 (Conn. Super. Jan. 18, 2002), the plaintiff brought a foreclosure action against the defendant. DefendantÁs answer alleged the special defense of the unclean hands doctrine, in that the plaintiffÁs foreclosure action was dependent upon the plaintiffÁs own violations of Conn. Rule 8.4. Defendant alleged that plaintiff knew or had sufficient information to know that its client was under an acute mental disability because he was addicted to heroin, and that he could not manage his financial and business affairs. Plaintiff knowingly acquired a pecuniary interest adverse to its client when it acquired a promissory note and security interest in the property in which its client had an equitable interest. The terms on which plaintiff acquired the interest were not fair and reasonable to its client and the amount charged was unfair, improper and unethical. Defendant further alleged that plaintiff acquired the promissory note and security interest without advising its client in writing that he should seek the advice of independent counsel and without giving him a reasonable opportunity to do so. Because the plaintiff knew or had reason to know that its client had a severe mental disability, plaintiff had a professional obligation to insure that its client had a guardian ad litem or conservator appointed for him, and/or that he had competent independent counsel. Defendant also alleged that plaintiff had a fiduciary obligation to its client which was wrongfully breached by overcharging him for legal services and obtaining a security interest adverse to his interests in the manner in which it did so. Finally, defendant alleged that plaintiff wrongfully and improperly threatened the defendant and as a result, the defendant signed the mortgage deed under duress. The court found that the defendantÁs special defense of unclean hands was legally sufficient, therefore the court was precluded from granting plaintiffÁs motion for summary judgment.

In Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 767 A.2d 732 (2001), the court held that a five-year suspension was not abuse of discretion. The court concluded that the evidence supported the finding that the defendant engaged in fraudulent misrepresentation and nondisclosure when he provided his two most recent federal income tax returns to home lenders without disclosing that he had not paid tax obligations for either year and when he denied having outstanding federal debt on his loan application.

The court in Statewide Grievance Committee v. McGee, No. CV000091634, 2000 WL 1474791, *1 (Conn. Super. Sept. 20, 2000) suspended the defendant from the practice of law for three years. The court found, by clear and convincing evidence, that the defendant maintained a trust account substantially short of the money it should have contained, in disregard of defendantÁs fiduciary responsibility. Moreover, defendant failed to produce mandated records of accounts, thus suggesting that defendant was dishonest in managing the trust account.

In Statewide Grievance Committee v. Solomon, No. CV990269373, 2000 WL 1898814, *1 (Conn. Super. Dec. 12, 2000), the court reprimanded the defendant after finding that he executed and filed an affidavit that contained a false and misleading statement. This was defendantÁs second violation of Conn. Rule 8.4, as he was previously reprimanded for refusing to record a deed running in favor of a client until his fee had been paid. However, the court did not conclude that the present violation, the execution of the false affidavit, was intentional. Therefore, the court reprimanded the defendant for his misconduct, rather than issuing a more severe discipline.

In Haymond v. Statewide Grievance Committee, 247 Conn. 436, 723 A.2d 808 (1999), the Connecticut Supreme Court affirmed the reprimand of the petitioner for violation of the Rules of Professional Conduct in using false and misleading telephone directory advertisements and television commercials.

In Informal Opinion 96-19 (1999), the Committee opined that a lawyer may not pursue an appeal on a WorkerÁs Compensation claim that his client agreed to settle based on a waiver of future claims against the employer. Even if the waiver is void as a matter of public policy, to later pursue a claim would be fraudulent conduct on the part of the lawyer in violation of Rule 8.4(3).

In Informal Opinion 95-4 (1995), the Committee opined that the failure to disclose to callers the whereabouts of a former partner who has left a law practice (when departed lawyerÁs whereabouts are known) is a misrepresentation and a violation of Rule 8.4(3).

Since the crime of Ësubscribing to a false tax return for the purpose of evading taxes is an offense that involves fraud, deceit and dishonesty,[an attorneyÁs] conviction for that offense bears directly on his fitness to practice law.Ó Statewide Grievance Committee v. Shulger, 230 Conn. 668, 646 A.2d 781 (Conn. 1994).

ËThere is no requirement under Rule 8.4(3) that the prohibited misrepresentation be intentional or have the element of scienter; in general, legal liability for misrepresentations rests on false statements made either intentionally or negligently. Nothing in Rule 8.4(3) indicated that passive representation was not mean to be covered by the rule.Ó Parese v. Statewide Grievance Committee, No. CV88-0348079, 1993 WL 137568, *1 (Conn. Super. Apr. 1, 1993).

An attorney violates Rule 8.4(3) when he obtains a release from a client without showing her the check from the insurance company in payment of the claim or having her endorse the same. Conversion of client funds to the attorneyÁs own use by wrongfully appropriating them to himself is a violation of Rule 8.4(3). Failure to inform the client that there are insufficient funds available for the check drawn for the client is a violation of Rule 8.4(3). Statewide Grievance Committee v. Van Kirk, No. CV900384679, 1991 WL 50545, *1 (Conn. Super. Mar. 28, 1991).

In Informal Opinion 91-22 (1991), the Committee opines that whether an attorneyÁs participation in a fraudulent transfer on his clientÁs behalf violates Rule 8.4(3) must be determined on a case-by-case basis.

In Statewide Grievance Committee v. Jacobs, No. CV90300102, 1990 WL 289528, *1 (Conn. Super. June 22, 1990), an attorney agreed to assist his client, who was experiencing marital difficulties, by forwarding the clientÁs workerÁs compensation checks to addresses directed by the client in an effort to prevent his wife from appropriating the checks. The attorney unilaterally decided to apply a portion of each check towards an outstanding balance that the client had for attorneyÁs fees. Although the court held that this was not a violation of Rule 8.4(2), it did find a violation of Rule 8.4(3). The court reasoned that the attorney had no authority to make such a use of the checks and his actions were inconsistent with the clientÁs instructions. It was, therefore, dishonest of the attorney to attempt to use control of these checks as a means of obtaining payment for his fees.

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Connecticut References: CT Rule 8.4(4)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 804 A.2d 1027 (2002) the court held that Rule 8.4(4) contains no requirement of scienter or intent to violate.

Formal Opinion 41 states that in a case where corporate counsel is aware of an illegal agreement between outside counsel and an informant in pending litigation, corporate counsel must withdraw from representation in that case to avoid a violation of Rule 8.4(2),(3) or (4).

In Statewide Grievance Committee v. Baldwin, No. CV010807111, 2001 WL 1560895, *1 (Conn. Super. Nov. 13, 2001), the defendant represented an elderly gentleman of substantial means and arranged for his conservatorship to be dissolved, thereby transferring complete control of the gentlemanÁs financial affairs to the defendant. The defendant failed to prepare or maintain a receipt and disbursement journal for the trust and did not keep all bank statements, checkbooks or canceled or voided checks related to the trust account. During the time the defendant represented this man, the Committee was notified by the bank that the defendant had overdrawn the trust account. The Committee scheduled a hearing and issued a subpoena ordering the defendant to testify and produce documents. The defendant failed to produce the requested documents at the hearing and after promising to produce them, he again failed to do so. The court suspended the defendant from the practice of law after finding that he engaged in conduct that was prejudicial to the administration of justice, in violation of Conn. Rule 8.4(4) when he repeatedly ignored counselÁs request for information.

In Informal Opinion 97-13, the Committee opined that an attorney may not settle a fee dispute with a client based on an agreement by the client not to file a grievance against the attorney. This would interfere with a clientÁs right to report unprofessional conduct which serves to Ëregulate the bar and protect the public generallyÓ.

The court in Ginzberg v. Statewide Grievance Committee, 1995 WL 781406, *1 (Conn. Super. Dec. 13, 1995) sustained plaintiffÁs appeal from the defendantÁs decision. During the course of a court proceeding, the plaintiff called his opposing counsel Ëa lying lawyer.Ó When counsel objected, plaintiff immediately apologized several times and later in a chambers conference, he stated that he did not believe the opposing counsel was lying. Approximately one year later, the judge wrote to the defendant committee stating that the opposing counsel sought disciplinary action against the plaintiff. The Committee found that plaintiffÁs actions had violated Conn. Rule 8.4 by resulting in a disruption of court proceedings. The Committee also noted that the plaintiffÁs statement that he did not believe his opposing counsel was lying was a misrepresentation of fact to the court. The court held that it did not approve of plaintiffÁs conduct, but that the cause of maintaining professional respect would not be advanced by seeking to impose formal punishment for every insult uttered in court.

In Statewide Grievance Committee v. Bieluch, No. CV930133779, 1994 WL 16512, *1 (Conn. Super. Jan. 5, 1994), an attorney, acting as executor of an estate, who (1) made an unsecured and unapproved loan to a third-party; (2) paid himself legal and fiduciary fees in an improper manner; and (3)failed to cooperate with the court-appointed auditor, was held to be in violation of Rule 8.4(4).

In Statewide Grievance Committee v. Diette, No. 518046, 1993 WL 28893, *1 (Conn. Super. Apr. 21, 1993), an attorney who failed to obey a court order requiring him to pay a court reporterÁs fee violated Rule 8.4(4).

In Esposito v. Presnick, 15 Conn. App. 654, 546 A.2d 899 (Conn. App. 1988), an attorney, appearing pro se, who refused to obey court orders requiring (1) his attendance at a preargument conference, (2) his attendance at a sanctions hearing regarding his absence at the preargument conference, and (3) his refusal to pay $500 in sanctions violated Rule 8.4(4). The court noted that even though the attorney appeared pro se, he is still a licensed attorney in the state of Connecticut and, as such, is subject to the Rules of Professional Conduct.

8.4:600   Implying Ability to Influence Public Officials

Primary Connecticut References: CT Rule 8.4(5)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary:
Connecticut Commentary:

Informal Opinion 96-17 addresses whether a lawyer (or someone from his or her firm) may serve as a member of the StateÁs General Assembly while simultaneously representing a client against the state or before state agencies. The Committee opined that lawyer-legislators are not necessarily precluded from representing clients before state agencies but should do so with Ëa clear eye and considerable caution.Ó

Formal Opinion 32 opined that law firms may not invite judges (except part-time probate judges) to the firmsÁ open houses because it would give the impression of an attempt to influence the judge or the court.

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Connecticut References: CT Rule 8.4(6)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

8.4:800   Discrimination in the Practice of Law

‰ Primary Connecticut References: CT Rule 8.4
‰ Background References: Other Jurisdictions
‰ Commentary: ABA/BNA ã 91:301
‰ Connecticut Commentary:

[The discussion of this topic has not yet been written.]

8.4:900   Threatening Prosecution

‰ Primary Connecticut References: CT Rule 8.4
‰ Background References: Other Jurisdictions
‰ Commentary: ABA/BNA ã 1:801, 61:601
‰ Connecticut Commentary:

[The discussion of this topic has not yet been written.]

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:
Connecticut Commentary:

8.5:101      Model Rule Comparison

Model Code 8.5 and Conn. Rule 8.5 are substantially different. The Connecticut rule is a concise statement of the stateÁs jurisdiction over an attorneyÁs admitted to practice in Connecticut: ËA lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.Ó Model Rule 8.5(a) is similar to Conn. Rule 8.5 in that it established jurisdiction over admitted lawyers. It is more detailed than Conn. Rule 8.5 because it confers jurisdiction over attorneys admitted to practice in the jurisdiction, regardless of where the conduct occurred. Moreover, it states that a lawyer may be subject to more than one jurisdiction, if admitted in more than one state.

Model Code 8.5(b) establishes choice of law rules governing discipline of attorneys. For instance, Model Rule 8.5(b)(2)(ii) provides Ëif the lawyer is licensed to practice in this and another jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.Ó

8.5:102      Model Code Comparison

There was no counterpart to this Rule in the Model Code.

8.5:200   Disciplinary Authority

Primary Connecticut References: CT Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:
Connecticut Commentary:

In Haymond v. Statewide Grievance Committee, 45 Conn.Supp. 481, 723 A.2d 821, (Conn.Super. 1997), the court held that it had jurisdiction over the actions of an attorney, licensed in Connecticut, who was engaged in the practice of law in Massachusetts. In Haymond, the attorney was licensed to practice law in Connecticut and Pennsylvania, but not in Massachusetts. The attorney advertised his law firm in Massachusetts. The Statewide Grievance Committee found that the attorney violated the Connecticut Rules of Professional Responsibility because his advertisements were false and misleading. The court held that the attorney was subject to the discipline in Connecticut because of the attorneyÁs Ëunique relationship to Connecticut and its judiciary as an attorney licensed to practice in Connecticut which justifies the stateÁs exercise of power over his practice of law in Massachusetts.Ó Haymond, 723 A.2d at 825.

In Statewide Grievance Committee v. Gifford, No. CV 000800490S, 2000 WL 1868217 (Conn. Super. 2000), the court held that pursuant to Rule 8.5 it had jurisdiction over a lawyer admitted to practice in Connecticut. In Gifford, the attorney contended that he was not subject to the superior courtÁs jurisdiction for a matter involving representation in a federal court. The court held that, although there could be a conflict between state and federal disciplinary laws, the state maintained jurisdiction. The court noted Ë[t]he fact that the federal courts can conduct their own disciplinary proceeding does not preclude this court [the Connecticut superior court] from exercising its jurisdiction over a member of this bar.Ó

In Roosevelt Bldg. Product Co., Inc. v. Morin Corp., NO. CV 000083595S, 2001 WL 1738844 (Conn. Super. Sept. 5, 2001), the court noted that the Superior Court has the duty to enforce the rules of professional responsibility. See also Brand v. Matheny, No. CV 910389922S, 1994 WL 60066 (Conn.Super. Feb. 14, 1994).

In Informal Opinion 98-6 (1998), the Committee opined that it had jurisdiction over an attorney licensed to practice in Connecticut and New York. The Opinion noted that even though the attorneyÁs misconduct was performed Ëin part or entirely in New York,Ó the Committee had jurisdiction because the attorney was admitted to practice in Connecticut. Hence, the attorneyÁs actions were appropriately measured by the Connecticut Rules of Professional Conduct.

8.5:300   Choice of Law

Primary Connecticut References: CT Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:
Connecticut Commentary:

Rule 8.5 does not contain provisions regarding choice of law. The commentary to Rule 8.5, however, discusses the situation in which choice of law principles are applicable: ËWhere the lawyer is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rules of choice of law may govern the situation.Ó