Disciplinary Counsel v. Cannatelli

203 Conn.App. 236

248 A.3d 83

DISCIPLINARY COUNSEL

v.Frank CANNATELLI

AC 44091

Appellate Court of Connecticut.

Submitted on briefs February 4, 2021

Officially released March 16, 2021

Frank P. Cannatelli, self-represented, the appellant (respondent).

Brian P. Staines, chief disciplinary counsel, for the appellee (petitioner).

Moll, Alexander and Suarez, Js.

PER CURIAM.

In connection with the presentment filed by the petitioner, the Disciplinary Counsel, alleging misconduct by the respondent attorney, Frank Cannatelli, the respondent appeals from the judgment of the Superior Court suspending him from the practice of law for one year for numerous violations of the Rules of Professional Conduct and the rules of practice. We affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to our resolution of this appeal. On or about November 20, 2015, following an evidentiary hearing, a reviewing committee of the Statewide Grievance Committee (grievance committee) issued a comprehensive decision finding that the respondent had violated various provisions of the Rules of Professional Conduct and the rules of practice. By way of summary only, we recite the following facts, which the reviewing committee found by clear and convincing evidence. Following an initial investigation by the grievance committee into a November, 2013 overdraft from the respondent's IOLTA¹ account, "[a] subsequent investigation of the respondent's IOLTA account revealed that the respondent had made numerous payments directly from his IOLTA account for personal and business expenses. These included payments to Comcast, TransAmerica, the [United States] Treasury, and the Mohegan Sun Casino. The respondent did not maintain proper records of his IOLTA accounts, including failure to maintain accurate ledgers.

"As of December 30, 2013, the balance in the respondent's IOLTA account was $195.24; however, the respondent had deposited $10,591.35 into the account on behalf of a client, Ziemba, during the period of October 21, 2013, to December 3, 2013, and had disbursed $8544.63 on behalf of the client for the same period, leaving [approximately $1850] unaccounted for.

"The respondent received a check in the amount of $5487.77 as an asset of the estate of Mark Ziemba, as set forth in the respondent's June 22, 2014 letter to the Wallingford Probate Court, but no inventory was filed with the Probate Court as of September 1, 2014, and the funds were held by the respondent until April of 2015." The reviewing committee further found that the respondent had not promptly returned a retainer in a matter that did not go forward.

Against the backdrop of these facts, the reviewing committee found the following violations by clear and convincing evidence, stating: "It is eminently clear from the record, and the respondent acknowledges, that he was commingling funds in his IOLTA account, paying personal bills and expenses directly from the account, and not maintaining complete records for the account, in violation of [r]ule 1.15 (b) of the Rules of Professional Conduct. Keeping his own funds in the account, beyond the amount necessary to avoid service charges, further constitutes a violation of [r]ule 1.15 (c) of [the] Rule[s] of Professional Conduct and Practice Book § 2-27 (a). In paying a retainer over a period of time, rather than promptly, the respondent was in violation of [r]ule 1.15 (e) of the Rules of Professional Conduct.

"The respondent's failure to maintain required account records, including accurate general and client ledgers, accurate receipt and disbursement journals, copies of disbursements, and copies of billing statements, was in violation of [r]ule 1.15 (i) of the Rules of Professional Conduct and Practice Book § 2-27 (b). The respondent's handling of the Ziemba matters, where [approximately $1850] was not accounted for as of December 30, 2013, and where $5487.77 was held by the respondent until April of 2015, constitute violations of [r]ules 1.3, 1.15 (b) and (e), and 8.4 (3) of the Rules of Professional Conduct.

"The record in this matter reflects that the respondent's mishandling of his IOLTA account has been egregious. There was clear commingling, and the reviewing committee notes that the respondent previously agreed not to use his IOLTA account to pay personal or business related expenses, in a 2008 grievance complaint (Bowler v. Cannatelli , Grievance Complaint #08-0185)." On the basis of the foregoing, the reviewing committee directed the petitioner, pursuant to Practice Book § 2-35 (i), to file a presentment against the respondent. On February 1, 2016, the respondent appealed from the order of presentment to the Superior Court. Cannatelli v. Statewide Grievance Committee , Superior Court, judicial district of Hartford, Docket No. CV-16-6065656-S.

Meanwhile, on February 3, 2016, the petitioner filed a one count presentment against the respondent, alleging numerous incidents of attorney misconduct (disciplinary proceeding). Specifically, the petitioner alleged that the respondent violated rules 1.15 (b), 1.15 (c), 1.15 (e), 1.15 (i), 1.3, and 8.4 (3) of the Rules of Professional Conduct, as well as Practice Book § 2-27 (a) and (b), by commingling personal funds in his IOLTA account, paying personal bills and expenses directly from his IOLTA account, failing to maintain complete and accurate IOLTA account records, keeping personal funds in his IOLTA account above the amount necessary to avoid service charges, paying back an unused retainer fee to a client over time and not promptly, and failing to properly handle funds in the Ziemba matter with a specified amount unaccounted for and a separate amount held too long in the account.

In June, 2016, the Superior Court dismissed the respondent's appeal from the grievance committee's decision for lack of an appealable final judgment and subsequently denied his motion to reargue the judgment of dismissal. See Cannatelli v. Statewide Grievance Committee , 186 Conn. App. 135, 137–38, 198 A.3d 716 (2018), cert. denied, 331 Conn. 903, 202 A.3d 374 (2019). The respondent appealed therefrom to this court, which affirmed the judgment of the Superior Court. Id., at 136, 198 A.3d 716. Thereafter, our Supreme Court denied the respondent's petition for certification to appeal on February 27, 2019, denied the respondent's motion for reconsideration on April 3, 2019, and denied the respondent's motion for reconsideration en banc on May 22, 2019.

On September 25, 2019, the petitioner notified the Superior Court in the disciplinary proceeding, which had remained inactive while the respondent pursued his appeal from the order of presentment, that the presentment was ready to be scheduled for a hearing. On October 8, 2019, the court scheduled a hearing for December 9, 2019.

On November 22, 2019, pursuant to Practice Book § 2-82 (a) and (b), the parties executed a stipulation and submitted it to the court for approval on November 25, 2019 (stipulation). The stipulation recites the following facts. The respondent was admitted to the Connecticut bar in December, 1988, and has a history of attorney discipline, including a reprimand in February, 1998, a reprimand in March, 1998, a sanction with conditions in August, 2008, a reprimand in March, 2009, and a reprimand with conditions in July, 2012. As of the date of the stipulation, the respondent was in good standing. By grievance complaint dated July 29, 2014, Michael P. Bowler, statewide bar counsel, instituted a grievance complaint against the respondent. In connection there-with, the respondent tendered an affidavit pursuant to Practice Book § 2-82 (d), which was attached to the stipulation, in which he acknowledged that there was sufficient evidence to prove by clear and convincing evidence the material facts constituting a violation of the Rules of Professional Conduct and the rules of practice, as set forth in the November 20, 2015 decision of the reviewing committee, which also was attached to the stipulation and incorporated therein. Relatedly, the stipulation contained the following provision: "The parties stipulate that the court, when entering judgment on this presentment, may find by clear and convincing evidence the facts as set forth in the reviewing committee's decision of November 20, 2015, as well as the violations of the Rules of Professional Conduct and the Practice Book." The stipulation further stated that, pursuant to Practice Book § 2-82 (c), the parties were unable to agree to a proposed disposition but agreed, while retaining the right to appear at a hearing regarding a disposition and to present argument, that the matter should be submitted to the court "for the imposition of whatever discipline the court deems appropriate."

On December 9, 2019, the court conducted a hearing on the presentment, during which the parties presented argument and the court admitted into evidence several documents offered by the respondent.² On January 28, 2020, the court issued a memorandum of decision rendering judgment in favor of the petitioner, finding by clear and convincing evidence that the respondent had violated the Rules of Professional Conduct and the rules of practice as set forth in the presentment, and suspending the respondent from the practice of law for a period of one year. The court explained that, in reaching its decision, it took "into account the respondent's significant history of discipline and the fact that the issues raised in this grievance proceeding, particularly the respondent's use of his IOLTA account to pay personal expenses, involved behavior for which the respondent had been previously sanctioned ...."

On January 31, 2020, the respondent filed with the Superior Court a postjudgment motion to dismiss for lack of subject matter jurisdiction, arguing for the first time that, pursuant to Practice Book § 2-47 (a), the court lacked subject matter jurisdiction because a hearing on the merits of the presentment...