Disciplinary Counsel v. Hickey

Disciplinary Counsel v. Thomas Hickey

No. FSTCV084014896S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

August 5, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION re MOTIONS TO DISMISS (#109.00 and #118.00)

Kenneth B. Povodator, J.

Presently before the court is a motion to dismiss filed by the named petitioner in 2012--as supplemented by a motion filed in 2016 by the Statewide Grievance Committee^[1]--addressed to an application for reinstatement filed by the respondent in 2012. A moderately detailed history--factual and procedural--is required in order to put the current dispute in a comprehensible context.

Facts/Procedural History

In May 2008, the Statewide Grievance Committee, after receiving a notice of overdraft relating to the respondent's IOLTA account from the bank in which such account was maintained initiated an investigation, ultimately leading to an attempt to audit the account. On September 12, 2008, the respondent executed a proposed resignation as an attorney, containing the following statement: " I hereby submit my resignation from the bar of the State of Connecticut and waive the privilege of applying for readmission to the bar at any time in the future." The document was signed by the respondent, and an acknowledgment was taken indicating that the respondent " swore that signing this document was his free act and deed."

Pursuant to Practice Book § 2-52, such a " resignation shall not become effective until accepted by the court after hearing, at which the court has accepted a report by the statewide grievance committee, made a finding of misconduct based upon the respondent's affidavit, and made a finding that the resignation is knowingly and voluntarily made." In connection with scheduling of such a hearing, an application dated October 3, 2008 was filed, seeking an interim suspension (#103.00, which, upon consent, was granted on October 22, 2008 (#102.10). A hearing was (tentatively) scheduled for November 13, 2008.

During the period of time set forth in the preceding paragraph, the respondent filed a memorandum of law relating to his right to resist the compelled production of evidence (#104.00), as had been requested as part of the investigation. The focus of the filed memorandum was the right of the respondent to resist production of materials as a condition of the acceptance of his resignation--the concluding language of that memorandum stated that " it would be patently unconstitutional to refuse to permit the resignation merely because the Respondent has asserted his constitutional rights under well settled state and federal law." Subsequently, a letter from counsel for the respondent was filed with the court indicating that some additional documentation had been provided to the Statewide Grievance Committee as well as the Chief Disciplinary Counsel's office, on which basis the then-pending objections to the resignation of respondent were withdrawn.

On November 12, 2008, the court, Adams, J, executed and filed an acceptance of resignation and waiver, stating that " the Respondent, Thomas J Hickey, juris number 308735, has knowingly and voluntarily resigned from the Bar of the State of Connecticut and has knowingly and voluntarily waived the privilege of applying for readmission to the Bar at any time in the future."

By pleading dated April 16, 2012 (executed on April 17, 2012) the respondent filed an application for reinstatement to the bar, invoking Practice Book § 2-53. (#107.00.) By pleading dated April 30, 2012, the Office of the Disciplinary Counsel filed a motion to dismiss (#109.00) stating that the respondent had been canvassed and the court had found that he had made " a knowing and intelligent decision in asking the court to accept his resignation and waiver of his right to reapply, " which resignation and waiver " was a judgment on the merits and was not appealed." As a result, the claim was that the respondent lacks standing and the application should be dismissed.

On May 30, 2012, the respondent--now sometimes characterized as the applicant--filed an objection to the motion to dismiss with a memorandum of law in support of his position. (#111.00.) Other than some motions relating to the representation of the respondent and an unsuccessful effort to have the matter transferred to another venue, nothing further transpired until 2016.

In the 2012 application and objection to motion to dismiss, the arguments were primarily legal in nature. The application noted that the resignation had been tendered in response to efforts to obtain information from the respondent, but that an audit had found the IOLTA account reconciled, which appears to be perceived to be a vindication of the respondent. The objection to the motion to dismiss relies on the claimed constitutional due process right to a hearing on his application, arguing that the authorities relied upon in the motion to dismiss were distinguishable and that the respondent had not waived his right to an appeal. The objection contended that he was entitled to notice of an appellate right and that the failure to give him such notice was " in violation and deprivation of his constitutional right to due process." (#111.00 at page 3.) He also argued that it was irrational to allow someone who has been disbarred to apply for readmission (even if the disbarment was related to commission of a felony) while depriving someone not so tainted--someone who had resigned with waiver of right to reapply without a felony conviction or similar stigma--of the right to apply for readmission.

The court has reviewed the contents of the 2012 filings in order to allow a fair comparison with the 2016 filing. On January 20, 2016, the respondent/applicant filed a supplemental memorandum of law in opposition to the motion to dismiss. (#116.00.) In distinction to the generally legal/technical focus of the 2012 filings, in 2016, the focus was more factual in nature. Attached to the 2016 supplemental objection were affidavits from the respondent and his wife articulating a new and seemingly-very-different rationale for the resignation and waiver that had been filed in 2008. According to this more recent filing, the motivation had been highly personal if indirect. In 2006, the respondent's wife's father had been accused of emotionally-charged and reprehensible/embarrassing criminal conduct that had divided the family. According to page 2 of #116.00, respondent's wife

suffered embarrassment, humiliation and depression for which she sought psychiatric help. The grievance counsel's investigation into her husband's high-profile firm " overwhelmed [her] with fear that . . . [her] family's personal and ugly secret, " of which only a select few relatives then knew, would be exposed publicly.

. . . To prevent disclosure of his wife's family secret, and out of concern for his wife, [respondent] made the ill-considered decision to resign rather than defend the grievance. Faced with these extraordinary circumstances and pressures in his personal life [respondent] regretfully made this decision against his best interests. (References to affidavit submissions, omitted.)

The personal pressure, coupled with the claim that there had been multiple instances of vindication of his handling of his IOLTA account, ^[2] were claimed to warrant his ability to be considered for readmission--or at least a hearing on his application.

On February 1, 2016, the Statewide Grievance Committee filed a motion to dismiss dated January 28, 2016 (#118.00), arguing that the waiver constituted a binding agreement " in exchange for the Disciplinary Counsel and the Statewide Grievance Committee closing their investigations into the Respondent's misuse of his trust account." The claim is that he is estopped from pursuing his application for reinstatement, and a memorandum of law in support of that renewed motion was also submitted.

On February 17, 2016, the respondent filed a memorandum in opposition to the supplemental motion to dismiss (#119.00, dated February 16, 2016) (and an amended memorandum of law was filed a few days later, #120.00). The Statewide Grievance Committee submitted a brief reply to the amended memorandum. (#121.00.) The court heard argument on the motions to dismiss on April 25, 2016.

Current Procedural Posture

Both Disciplinary Counsel and the Statewide Grievance Committee have characterized their motions as motions to dismiss implicating jurisdiction of the court. The respondent, in his most recent objection, questions whether the motions filed and under consideration actually implicate subject matter jurisdiction as has been claimed by the petitioners.

[T]he issue of subject matter jurisdiction is distinct from the authority to act under a particular statute. Subject matter jurisdiction involves the authority of a court . . . to adjudicate the type of controversy presented by the action before it . . . A court . . . does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Although related, the court's . . . authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court . . . to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. Citibank, N.A. v. Lindland, 310 Conn. 147, 171, n.14, 75 A.3d 651 (2013) (internal quotation marks, omitted).

Generally speaking, the issues for the court include: are the issues raised by the Committee and Counsel properly raised by motion to dismiss; is the respondent, in his role as applicant entitled to an evidentiary hearing; and what is the proper disposition, to the extent...