To be officially reported September 22, 2015
Brendon P. Levesque
Three things about Serafinowicz are worth noting. First, it was not decided on the first amendment. The defendant waived his first amendment claim by failing to assert the constitutional argument at trial and by tendering an admission of misconduct pursuant to Practice Book § 2-82.Thus, we are going to have to wait for clarification regarding the intersection of the rules of professional conduct and the first amendment in Connecticut.
Second, facts are crucial to the outcome of cases. The relevant facts are as follows. In September 2011, the defendant represented a client before Judge Kaplan which “generated substantial media interest and publicity.” The defendant filed a complaint with the judicial review counsel on September 20, 2011, alleging bias on the part of Judge Kaplan. Based on that complaint and a potential conflict arising from the complaint, he filed a motion to recuse Judge Kaplan. The judicial review counsel returned the complaint due to insufficient information. The defendant did not timely file the requested information and the complaint was not processed. Over the next several months, the defendant appeared before Judge Kaplan five times.
In early February of 2012, the defendant informed “a local online media outlet that he had filed a complaint against Judge Kaplan.” The defendant appeared before Judge Kaplan on February 28, 2012, and claimed his motion to recuse. With regard to the reasons in the motion to recuse, Judge Kaplan noted that the complaint had been returned as incomplete and that the defendant had appeared before him five times subsequent to the filing of the motion without claiming the motion or indicating there was a conflict. The judge denied the motion but sua sponte recused himself.
Just after the hearing, the defendant made a statement to the press on the steps of the Derby Courthouse. In relevant part he stated,
The man’s a disgrace to the bench. He shouldn’t be sitting on the bench. It’s clear ․very clear that the man does not give people a fair shake, it’s clear that he plays favorites. There’s certain lawyers that he likes and certain lawyers that he doesn’t․ In case you didn’t notice, he didn’t like the fact that the media became involved in this because once the media becomes involved, his veil of secrecy which allows judges to do whatever they want all of a sudden goes away to somewhere else, all of a sudden disappears․ I filed that motion to preserve my client’s rights because I saw what was the most egregious act of judicial conduct that I will ever see in my career. He talks about that’s not the way to practice law. That man’s never tried a case in his life. Compare my trial record to his, his is zero and zero, look what mine is, not losing a case since 2007․
[Judge Kaplan] obviously had something against [my client], and I wasn’t going to stand there and I wasn’t going to take it. When I raised my right hand to take that oath and say I was going to be a lawyer, I vowed that I was going to represent every one of my clients to the best of my ability and I’m going to do that. Prior to this case even being docketed for the first time, he [Judge Kaplan] gave an opinion on the case, which he’s not supposed to do. That is unacceptable and—now, at least, we’re going to have a judge who’s going to have a fair and open mind and give this person a fair shake because it’s clear that he was not going to get one in this courthouse. And as I said before, the man’s a disgrace to the bench. Everyone within the state of Connecticut should have a problem with their tax dollars going to pay his salary.
The grievance was filed and the defendant tendered an affidavit denying some or all of the material facts pursuant to Practice Book § 2-82. He also acknowledged that there was sufficient evidence to prove those material facts by clear and convincing evidence. The matter was then submitted to the Court for the imposition of sanction. After a hearing the Court, Agati, J., imposed a 120 day suspension and ordered the defendant to attend a CLE on legal ethics and professional responsibility.
The Appellate Court affirmed the decision based on a number of factors. First, the court noted that the defendant had not disputed the factual basis for the allegations of misconduct. In fact, he had submitted an affidavit admitting that there was sufficient evidence to establish a violation of the rules. Second, the defendant failed to withdraw his motion to recuse after learning that the complaint had been returned and as a result, it was based on incorrect information. Third, the court considered that the statements made questioned Judge Kaplan’s motives and intent while at the same time touted the defendant as an excellent lawyer. Finally, the Appellate Court noted that the sanction imposed was significantly less burdensome than the one sought by disciplinary counsel. As a result, the Court concluded that the 120 day suspension was not an abuse of discretion.
Third, this decision, in conjunction with Disciplinary Counsel v. Parnoff, 158 Conn. App. 454 (2015) and Statewide Grievance Comm. v. Ganim, 311 Conn. 430, 87 A.3d 1078 (2014), demonstrates that the Appellate and Supreme courts will be extremely deferential to the trial court’s exercise of discretion over attorney discipline and licensing.