19 Conn. App. 340

In the Matter of Daniel V. Presnick

(SAC 001)

Dupont, C. J., Borden, Spallone, Daly, O’Connell, Stoughton, Norcott and Foti, Js.

*341Argued December 12, 1988 —

decision released July 26, 1989

Daniel V. Presnick, pro se.

Dupont, C. J.

This matter arises out of an en banc show cause hearing conducted, sua sponte, by this court, after notice to a member of the Connecticut bar, Daniel V. Presnick, to determine whether he should be barred from filing in this court, “any papers, including the filing of an appearance on behalf of a party other than himself, and from appearing in Court,” as a result of his failure to comply with a prior order of this court. Presnick appeared at the hearing, argued, and subsequently submitted a brief.

The issue raised by the show cause order and the hearing is whether this court has the power to impose the sanction of a suspension from practice before this court when an order of the court has been disobeyed. We hold that we do.

*342The prior order of this court that was the basis of the show cause hearing was that Presnick, the pro se defendant in the case of Esposito v. Presnick,. 15 Conn. App. 654, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988), should pay the sum of $500 as a sanction for his failure to attend a preargument settlement conference in that case.1 Presnick was ordered to pay that sum to the chief clerk of the Appellate Court *343who, in turn, was directed to make payment of the same sum to the opposing counsel in the case.2 The money has never been paid.

At the show cause hearing, and in his brief, Presnick basically argues that there is no specific rule of this court that provides for the sanction of prohibiting an attorney from appearing in this court or filing papers in this court on behalf of others, and, therefore, no such sanction can be imposed. He further argues that this is particularly the case when the underlying behavior of the attorney that is the cause of the sanction arises in a case in which he or she appeared pro se. He further claims that the proposed sanction is tantamount to disbarment in this court and that before such a sanction may be imposed, federal constitutional due process requires that a fair and impartial hearing be held after reference by this court to an impartial factfinding body.3

Presnick’s arguments, then, are that this court is powerless to impose the sanction of preventing him from practicing law in this court because the behavior of which we complain occurred while he was acting pro se, that there is no specific rule of this court providing *344for such a sanction, and that without a finding of facts by an impartial body his due process rights were violated.

It is undisputed that the failure to pay the $500, which was the original sanction imposed, arose while Pres-nick was representing himself, as opposed to representing another in his capacity as a member of the bar of this state. Although misconduct of an attorney may be unconnected with representation of another as a member of the bar, punishment may be imposed for that misconduct because it is an indication of a general unfitness to practice law. Grievance Committee v. Broder, 112 Conn. 269, 274, 152 A. 292 (1930); In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). The practice of law is a privilege and if an attorney “by misconduct in any capacity, discloses that he ... is an unfit . . . person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited.” (Emphasis added.) Id. Failure to obey an order of a court is inimical to the responsibilities of a member of a bar as an officer of that court and whether the disobedience arises from representing oneself or another in a professional capacity makes no difference.

Our sanction rule, Practice Book § 2036, provides in relevant part: “The following will subject an offender, at the discretion of the court, to appropriate discipline .... (1) Failure to comply with rules and orders of the court. . . . Offenders subject to such discipline include both counsel and pro se parties.” The rule is entirely clear that pro se parties will be subject to discipline for violations of the court’s rules.

There has been an increasing tendency in many courts to impose severe sanctions on those who undertake to represent themselves but abuse the process of *345the courts to the detriment of other litigants and to the detriment of the court. See, e.g., In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984); Matter of Hartford, Textile Corporation, 681 F.2d 895 (2d Cir. 1982); Sparrow v. Reynolds, 646 F. Sup. 834 (D.D.C. 1986). Those sanctions may be imposed whether the malfeasor was, or was not, an attorney or was an attorney representing himself or others. See Browning Debenture Holders’ Co. v. Dasa Corporation, 605 F.2d 35 (2d Cir. 1978). Since a client may be punished for the transgressions of his attorney; Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984); there is no compelling reason not to punish that same client who chooses himself as an attorney. Whether an attorney represents himself or not, his basic obligation to the court as an attorney remains the same. He is an officer of the court no matter who is the client. Disciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers and commissioners of the court. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983). An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system. Chang v. Meese, 660 F. Sup. 782 (D. Puerto Rico 1987).

The special relationship between courts and their officers, those attorneys who practice before them, requires a court to monitor the conduct of those officers of the court.4 Statewide Grievance Committee v. *346Rozbicki, 211 Conn. 232, 558 A.2d 986 (1989). The purpose of such control is to protect the public from the effects of possible future misconduct by an officer of the court. The protection needed is no less necessary because the miscreant behavior occurs while the officer represents himself.

Presnick had a right to represent himself. He has no right, however, to expect that self-representation to clothe him with immunity from conforming to the behavior required of an officer of the court. A lawyer’s primary obligation is to the court and if there is a conflict between what he or she perceives as the interest of the client and the duty owed to the court, the latter must prevail. Here, the identity of client and lawyer merged. Presnick’s obligation to obey the court’s order transcended his belief that, as his own client, he did not have to attend the preargument settlement conference or pay the $500. We hold that the fact that Presnick’s failure to obey an. order of this court occurred while he represented himself is not a bar to the imposition of a sanction that relates to his representation, as an attorney, of others.

Presnick also argues that this court has no specific rule providing for the sanction described in our show cause order, and that, therefore, we cannot impose such a sanction. Practice Book § 2036 does not specifically provide that a sanction against a member of the bar who appears before us might be the prohibition of filing papers in this court or appearing in this court. The *347rule does, however, subject offenders, namely those who violate the rules and orders of this court, to “appropriate discipline.” A discussion of Presnick’s claim necessarily involves a discussion of the sources of the power of courts. We hold that the sanction proposed by our show cause order is included within the words “appropriate discipline” because we conclude that we have both the inherent and statutory power to impose such a disciplinary sanction, and that the sanction is warranted on the facts of this case.

There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court. The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is “of ancient origin, having its roots in judgments . . . entered at common law, e.g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals . . . e.g., id., at 451.” Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S. Ct. 1386, 8 L. Ed. 2d 734, reh. denied, 371 U.S. 873, 83 S. Ct. 115, 9 L. Ed. 2d 112 (1962). That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases. Id; Petition for Integration of Bar of Minnesota, 12 N.W.2d 515 (Minn. 1943). Simply stated, “[t]he inherent powers of . . . courts ‘are those which are necessary to the exercise of all others. United States v. Hudson, 7 Cranch 32, 34, 3 L. Ed. 259 (1812).” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1979).

The cases are legion, both federal and state, that provide that by rule, statute, or the use of inherent power, *348courts must be able to discipline members of the bar, and others who appear before the courts, in order to compel observance of their rules and orders. Statewide Grievance Committee v. Rozbicki, supra; see also Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra; Fattibene v. Kealey, 18 Conn. App. 344, 358-60, 558 A.2d 677 (1989); In re Greathouse, 248 N.W. 735 (Minn. 1933).

Attorneys admitted to the practice of law in this state are attorneys of all courts of the state and “shall be subject to the rules and orders of the courts before which they act.” General Statutes § 51-84 (a). “Any such court . . . may suspend or displace an attorney for just-cause.” General Statutes § 51-84 (b).

The Supreme Court governs the admission to practice law in all of the courts of this state. Those admitted to practice in this state, therefore, are authorized to practice in the Appellate Court without any special or particular admission to the Appellate Court. See R. Martineau, Modern Appellate Practice: Federal and State Civil Appeals (1983) § 18.9. Each court in the Connecticut constitutional hierarchy, however, is free to formulate its own rules relating to the practice and procedure to be followed in that court. Thus, there are Superior Court, Appellate Court and Supreme Court rules. Furthermore, any court established by our state constitution has an inherent power, independent of any statute, to make rules governing the procedure to be followed in it. State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 232, 140 A.2d 863 (1958). The Appellate Court is a constitutional court; Conn. Const., amend. XX, § 1; and, therefore, may make and enforce its own procedural rules.

Thus, it is not only the Superior Court that may order a suspension from the practice of law. “Any other court *349. . . may [also] fíne an attorney for transgressing its rules and doubtless has the power to forbid him from appearing before it . . . .” Fairfield County Bar v. Taylor, 60 Conn. 11, 12, 22 A. 441 (1891). The purpose of suspension from practice is to protect courts from the conduct of attorneys who are unfit to practice. In re Application of Pagano, 207 Conn. 336, 339, 541 A.2d 104 (1988).

General Statutes § 51-84 (b), when read in conjunction with § 51-84 (a), specifically states that a court “may suspend or displace [attorneys] for just cause.” Suspension need not be permanent or total. In re Application of Dimenstein, 36 Conn. Sup. 41, 43, 410 A.2d 491 (1979). Suspension may be summary, and is an inherent power of the particular constitutional court. See In re Durant, 80 Conn. 140, 147, 67 A. 497 (1907).

As long as there is no denial of due process, we conclude that this court may, for good cause, discipline attorneys who practice before it by suspending them from practice in this court for a reasonable and stated period. In re Application of Courtney, 162 Conn. 518, 523, 294 A.2d 569 (1972); see In re Solerwitz, 848 F.2d 1573 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004, 109 S. Ct. 784, 102 L. Ed. 2d 775 (1989); In re Boucher, 837 F.2d 869, reh. granted, 850 F.2d 597 (9th Cir. 1988); United States v. Ford, 806 F.2d 769 (7th Cir. 1986); United States v. Gerrity, 804 F.2d 1330 (7th Cir. 1986); In the Matter of Campos, 737 F.2d 824 (9th Cir. 1984); In re Bithoney, 486 F.2d 319 (1st Cir. 1973).

Even where there has been no notice of the possibility of a particular sanction, and no rule providing for such a sanction, the sanction is not necessarily void. Link v. Wabash Railroad Co., supra, 632. In that case, the United States Supreme Court upheld the dismissal of the plaintiffs case because of a failure to attend a *350pretrial conference. Courts have inherent power, not granted by rule or statute, but by the control necessarily vested in courts, to manage their own affairs to achieve an orderly and expeditious disposition of cases. “[W]hen circumstances make such action appropriate, a [court] may [invoke a sanction] even without affording notice of its intention to do so or providing an adversary hearing before acting. Whether such an order can stand . . . depends not on power but on whether it was within the permissible range of the court’s discretion.” Id., 633.

The particular type of misconduct by attorneys that has resulted in time limited or indefinite suspension from practice before a particular court varies. Such suspension has resulted when the attorney violated a rule relating to a briefing schedule; United States v. Gerrity, supra; United States v. Ford, supra; when an appeal was filed for the purposes of delay; In the Matter of Campos, supra; when misrepresentations of facts were made in a brief; In re Boucher, supra; or when frivolous appeals were filed; In re Solerwitz, supra.

The “appropriate discipline,” as provided in our rules, can encompass sanctions, other than monetary sanctions, which we, in the sound exercise of our discretion, believe to be warranted. See Donaldson v. Clark, 819 F.2d 1551 (11th Cir. 1987). In this case, after a hearing, we ordered Presnick to pay $500 as a sanction for his failure to attend a preargument settlement conference. That monetary sanction was ordered on June 4,1987, after a hearing. Presnick has been given every opportunity to pay it, but he has failed to do so since the date of the order. The sanction of prohibiting him from filing or appearing in this court for a definite period of time will serve to protect the court, litigants, and any future clients of Presnick from further malfeasance and is an appropriate corrective measure.

*351Presnick’s last claim is that the sanction described in the show cause order could not be imposed unless an impartial body held a hearing and found facts sufficient for the imposition. We agree that the sanction will have a professional and economic impact and, that, therefore, due process must be afforded. See Oliveri v. Thompson, 803 F.2d 1265 (2d Cir. 1986); In re Bithoney, supra; Grievance Committee v. Goldfarb, 9 Conn. App. 464, 519 A.2d 624 (1987). Although we agree that ordinarily due process would require that a hearing be held before sanctions can be imposed, we do not agree that the hearing must be an evidentiary one. Oliveri v. Thompson, supra, 1280; Markel v. Scovil Mfg. Co., 657 F. Sup. 1102 (W.D.N.Y. 1987); Levin & Sobel, “Achieving Balance in the Developing Law of Sanctions,” 36 Cath. U.L. Rev. 587, 607 (1987).

The right to a hearing is limited to cases in which a hearing would assist the court in its decision, usually because there is a contested factual issue to be resolved. Hill v. Norfolk & Western Railway Co., 814 F.2d 1192, 1200 (7th Cir. 1987); see also Mays v. Chicago Sun-Times, 865 F.2d 134 (7th Cir. 1989). The conduct to be censured in the present case is the failure of the defendant to pay $500 after having been ordered by this court to do so. There is no contested factual issue, and this court is thoroughly familiar with all of the relevant facts. See, e.g., Fed. R. Civ. P., Notes of Advisory Committee on Rule 11; compare Fattibene v. Kealey, supra.

We hold that this court may, after reasonable notice and after affording an opportunity to an attorney to show cause to the contrary, take appropriate disciplinary action against an attorney who practices before it for conduct that is an affront to the court’s authority or that interferes with the ability of this court to process its cases in an orderly and expeditious manner. See In re Solerwitz, supra. An attorney is entitled to *352a fair determination of whether a further sanction should be imposed after an admitted failure to comply with a prior sanction, but the precise procedure to obtain that result is for a court to determine. In re Durant, supra, 148. Presnick had such a fair determination and was afforded the due process to which he was entitled.

Daniel V. Presnick is prohibited henceforth from filing any papers in this court and from making an appearance in this court for a period of six months. After that period, and upon the payment of $500 as previously ordered by this court, and upon the filing and granting of a motion for reinstatement, the defendant may resume practice before this court if he is otherwise qualified to practice law in the courts of this state.

In this opinion the other judges concurred.

In re Presnick
19 Conn. App. 340

Case Details

Name
In re Presnick
Decision Date
Jul 26, 1989
Citations

19 Conn. App. 340

Jurisdiction
Connecticut

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