Disciplinary Counsel v. Hickey

328 Conn. 688

182 A.3d 1180

DISCIPLINARY COUNSEL

v.Thomas J. HICKEY

SC 19892

Supreme Court of Connecticut.

Argued January 24, 2018

Officially released May 1, 2018

Brendon P. Levesque, with whom was Scott T. Garosshen, Hartford, for the appellant (defendant).

Leanne M. Larson, assistant chief disciplinary counsel, for the appellee (plaintiff).

Elizabeth M. Rowe, assistant bar counsel, for the appellee (Statewide Grievance Committee).

Palmer, D'Auria, Mullins, Kahn and Vertefeuille, Js.

D'AURIA, J.

After the defendant, Thomas J. Hickey, voluntarily resigned from the bar of this state, he filed an application for reinstatement, and the plaintiffs, Disciplinary Counsel, and the Statewide Grievance Committee (committee), filed motions to dismiss the defendant's application for reinstatement.¹ The issue that we must resolve in this appeal is whether the trial court properly granted the plaintiffs' motions to dismiss the defendant's application for reinstatement to the bar on the ground that the defendant had resigned from the bar and waived his right to apply for reinstatement. The defendant contends that the trial court incorrectly determined that the portion of Practice Book § 2–53 (b) providing that "[n]o attorney who has resigned from the bar and waived the privilege of applying for readmission or reinstatement to the bar at any future time shall be eligible to apply for readmission or reinstatement to the bar," which became effective January 1, 2014, applied retroactively to his application for reinstatement filed in 2012. The defendant also claims that, under Practice Book (2012) § 2–53 (a), which, according to him, is the rule of practice that the trial court should have applied to his application, the court had no authority to entertain the plaintiffs' motions to dismiss on the ground that he was ineligible to apply for reinstatement but, rather, was required to forward his application to a standing committee on recommendations for admission to the bar (standing committee) for a determination of that issue.

We conclude that the trial court correctly determined that the defendant was ineligible to apply for reinstatement to the bar as the result of his voluntary resignation and waiver of his right to apply for reinstatement, regardless of whether Practice Book § 2–53 (b) is retroactive. We further conclude that the trial court was not required to forward the defendant's application to a standing committee and properly granted the plaintiffs' motions to dismiss. We therefore affirm the judgment of the trial court.

The record reveals the following facts, which were either found by the trial court or are undisputed, and procedural history. After receiving a notice of overdraft relating to the defendant's IOLTA account,² in May, 2008, the committee initiated an investigation that ultimately led to an effort by the committee to audit that account. In connection with the audit, the committee directed the defendant to produce certain documentation pursuant to Practice Book § 2–27 (c). Also during this time, the defendant's IOLTA account was selected for a random audit. In response, the defendant initiated a proceeding in the trial court pursuant to Practice Book (2008) § 2–52, seeking permission to resign from the bar and to waive his right to apply for reinstatement. The defendant subsequently filed in the trial court a memorandum of law contending that the compelled production of the documentation sought by the committee would violate his right against self-incrimination guaranteed by the state and federal constitutions. Because of the defendant's refusal to cooperate, the committee forwarded the defendant's overdraft grievance and random audit files to Disciplinary Counsel for presentment to the trial court. The plaintiffs initially objected to the defendant's resignation from the bar but, ultimately, withdrew their objections after the defendant agreed to provide certain documentation to the committee and Disciplinary Counsel.

On November 12, 2008, the trial court, Adams , J. , conducted a hearing on the resignation proceeding. At the hearing, the committee submitted a report pursuant to Practice Book (2008) § 2–52 (b) in which it represented that, as the result of the defendant's resignation from the bar and waiver of his right to seek reinstatement, it would resolve all disciplinary matters involving the defendant. The court canvassed the defendant as to whether his resignation and waiver of his right to seek reinstatement were knowing and voluntary, and whether he had been advised by counsel of the ramifications of his actions. The defendant responded affirmatively to both inquiries. The court then accepted the defendant's resignation and waiver.

In 2012, notwithstanding his voluntary resignation and prior waiver of his right to seek reinstatement to the bar, the defendant filed an application for reinstatement, contending that the "waiver does not preclude a present determination of his present fitness to be admitted to practice law." Disciplinary Counsel filed a motion to dismiss the application, claiming that the court lacked jurisdiction to entertain it as the result of the defendant's waiver of his right to seek reinstatement. In response, the defendant contended that his waiver was not knowing or voluntary because he had never been advised of his right to appeal from the judgment of the trial court accepting his resignation.

For reasons that are unclear from the record, no action was taken on Disciplinary Counsel's motion to dismiss for nearly four years. In January, 2016, the defendant filed a supplemental memorandum of law in opposition to the motion. He claimed that, during the years preceding his resignation, his wife had been struggling with a difficult and embarrassing family situation and that she was " 'overwhelmed ... with fear' " that the situation would become public if the committee's investigation against the defendant continued. Affidavits by the defendant and his wife setting forth the details of the family situation were attached to the defendant's opposition to the motion to dismiss. The defendant also contended that "[f]our independent audits were conducted and [his] client trustee accounts were completely in compliance with the law ...."

Thereafter, the committee also filed a motion to dismiss the defendant's application for reinstatement. In its memorandum of law in support of its motion to dismiss, the committee contended that its limited investigation of the defendant in 2008 had showed that there was "a serious question that remains to this day as to whether the [defendant] misappropriated funds from his IOLTA account." The committee also contended that the grievance complaint file, which stemmed from the IOLTA account overdraft, and the random audit file had been closed in exchange for the defendant's resignation and waiver, and that those files had since been destroyed.

After conducting a hearing on the plaintiffs' motions to dismiss, the trial court, Povodator , J. , granted them both.³ In its memorandum of decision, the court observed that, before reaching the merits of the defendant's claim that he was presently fit to serve as an attorney, the court was required to address the threshold question of whether the defendant's waiver precluded consideration of his application for reinstatement. The court concluded that, although there are no formal rules governing motion practice in reinstatement proceedings, the court had the inherent authority to entertain a motion to dismiss that raised this threshold question. The court also concluded that the portion of Practice Book § 2–53 (b) providing that an attorney who has resigned from the bar and waived the right to seek reinstatement is ineligible to apply for reinstatement, which was added to the rule and became effective in 2014,⁴ was retroactive because it "restated existing procedures and practices, rather than creating a new prohibition." Addressing the defendant's claim that his waiver was invalid because it was not knowing and voluntary, the court stated that, "accepting the factual contentions set forth in the affidavits ... relating to the concern about disclosure of family skeletons, the court cannot conclude that is a cognizable basis for finding a lack of knowing and voluntary waiver." The court further stated that, "[w]hile the [defendant's] rationale may well be plausible and emotionally attractive, [his] own characterization of his decision as 'ill-considered' is not the equivalent of a negation of a knowing and voluntary decision. Nor, to the extent the term is invoked, do these facts constitute duress, an alternat[iv]e characterization given by the [defendant]." The court concluded that no evidentiary hearing was necessary because the court assumed the truth of the facts averred in the affidavits that the defendant had submitted in support of his application for reinstatement. Finally, the court concluded that the defendant's knowing and voluntary waiver of the right to seek reinstatement in exchange for the committee's assurance that there would be no further investigation of him precluded him from seeking reinstatement. Accordingly, the court granted the motions to dismiss.

Thereafter, the defendant filed a motion for articulation in which he requested that the trial court articulate, among other things, whether and on what ground it had determined that it lacked subject matter jurisdiction over his application for reinstatement. In its response, the court noted that the defendant had not previously raised the issue of whether the court's subject matter jurisdiction was implicated by the plaintiffs' claim that the defendant was ineligible to apply for reinstatement to the bar. The court then observed that "[t]he sui generis nature of the proceeding undercuts the need for clear demarcation of [whether the issue was] jurisdictional [or] nonjurisdictional in a technical sense. The issue was whether there had been a threshold...