Statewide Grievance Committee v. David B. Bachman (2011)

AMENDED ¹ MEMORANDUM OF DECISION

This attorney presentment requires the court to consider the kinds of issues that need to be taken into account when reinstating an attorney who has been placed on inactive status for an extensive period of time while dealing with mental illness, and then to apply those considerations to the facts of this case.   The attorney in question, David Bachman, was placed on inactive status on January 28, 2005, following his presentment to this court in November of 2004.   That presentment, in turn, had followed a period of several years during which Bachman had become increasingly inattentive to his duties as an attorney to the point where several of his friends finally intervened and encouraged him to seek mental health treatment.   Before they had succeeded in doing so, however, he had incurred two lesser impositions of discipline (required Continuing Legal Education courses in Mitchell v. Bachman, Grievance Complaint # 00–0045 and a Reprimand in Cimino v. Bachman, Grievance Complaint # 02–1106).   Additionally, as alleged in the present presentment, he failed to file a timely appeal of the denial of a client's habeas corpus petition, failed to communicate with that client, Anthony Small, about his case and about his own growing mental health problems, failed to inform the client of his plan eventually to give the case to another attorney, and discussed the case with, and gave the file to, that attorney without having previously obtained Small's consent.

As previously mentioned, within two months of the filing of this petition, Bachman agreed to be placed on inactive status, resulting in a stay of these proceedings, which, by rule, have been “held in abeyance” ever since.   Practice Book Sec. 2–58(a).   In seeking reinstatement at this time, Bachman admits Statewide Bar Counsel's allegations with regard to these incidents, but argues that his treatment has been successful to the point that he can safely resume practice on a limited basis, and he proposes that he be therefore be reinstated under certain conditions, including the self-imposed requirement that his practice be limited to criminal appeals only, under the supervision of a volunteer practice mentor, or, as his attorney terms it, “collegial assistant.”

Statewide Bar Counsel does not disagree that Bachman's mental health has been restored to the point where he no longer needs to be on inactive status.   Rather, she contends that the court should, in response to the admitted allegations of the presentment, impose a period of suspension, largely as a reflection of the seriousness of Bachman's misconduct as well as the need to assure that Bachman will be “up to speed” once he starts representing clients again.   During this suspension, she urges that Bachman should first take certain Continuing Legal Education Courses, including an ethics course, before he is permitted to resume his practice.   Bachman argues that under all the circumstances, and given the voluntary restrictions he has already agreed to have placed upon him, he should be reprimanded and permitted to return to practice at once under the self-imposed conditions previously stated, with the additional requirement that he take the courses suggested by Statewide Bar Counsel within a prescribed period of time after his reinstatement.

The court first addresses the misconduct that led to these proceedings.   The Complainant in the underlying grievance was Anthony Small, who in 1995 had been convicted of capital felony, two counts of felony murder and conspiracy to commit robbery and sentenced to a total effective term of 45 years.   Those convictions were affirmed on appeal, State v. Small, 242 Conn. 93 (1997).   In September of 1997, Small retained Bachman to represent him in a petition for writ of habeas corpus, with a fee agreement that also called for Bachman to handle the appeal if the petition was denied.   The petition was in fact denied in 2000, but Bachman did not work on the appeal at all.

During this period, some of Bachman's attorney friends, including the attorney who is representing him in this matter, grew increasingly concerned that he was having a mental health breakdown and was neglecting his clients.   To their credit, they paid a private attorney to inventory his files, returned all special public defender files to the public defender's office and distributed the files of private clients among attorneys that Bachman knew, including Attorney Rosemary Paine, who was the recipient of Small's file.   To Bachman's credit, he acquiesced in what his friends had done, but neither Bachman nor his friends had conferred in advance with the individual clients whose files were being thus redistributed.   After Paine had reviewed the Small file, conferred with Bachman and also conferred with the State's Attorney, who agreed under the circumstances not to oppose the late filing of an appeal, she contacted Small and offered him a retainer agreement.   Small declined to have Paine represent him and then filed a grievance, which resulted in the reviewing committee's having made the previously mentioned findings that led to the current presentment.

By way of additional background, Bachman was admitted to the Bar of this state in 1989.   Other than the Mitchell matter, which involved failures to communicate with another habeas client and failing to file a timely answer to the resulting grievance complaint, and the Cimino matter, which concerned a failure to work on the complainant's civil case, the only other incidents of professional discipline have been several failures to timely pay Client Security Fund Fees during the period of Bachman's inactive status.   Following each of those suspensions, however, Bachman paid those fees and was reinstated to his inactive status.

The court would be remiss if it did not take a moment to recognize at least the intent, if not its somewhat flawed execution, that motivated Bachman's friends to intervene, steer him toward professional help for his illness, and try to help his clients find alternate counsel.   All too often, friends, in the name of friendship, will turn a blind eye toward the sort of deterioration that Bachman was experiencing, and often with far more disastrous results than were experienced here.   That they neglected a fundamental step—securing the clients' approval before turning over files to other attorneys—is unfortunate, and, indeed, unprofessional, but given their motivation, it is certainly not something for which they should be sanctioned, and equally certainly, in this court's view, not something for which Bachman himself should be sanctioned beyond the recognition that the failure to obtain such consent was a violation of Rule 1.6.

Parenthetically, the court notes that the practice of having an agreement among lawyers (and, for that matter, judges) who are close friends that they will be willing to speak candidly to a friend and colleague in response to a perceived decline in mental acuity, ability or stability is something which this court both applauds and subscribes to itself.   One hopes that the need never arises, but this case confirms the wisdom of having such a safety net in place, even if, as in this case, the execution was somewhat flawed.

Taking over the complainant's file and giving it to a respected attorney, Rosemary Paine, without having consulted with the client and obtaining his consent was indisputably a violation of Rule 1.6, but it was equally certainly a well intentioned act, aided and abetted by the very friends who were trying to help Bachman avoid further legal and professional difficulties.   Moreover, there is absolutely no evidence that the client was in any way prejudiced by this referral, or, indeed, by any aspect of Bachman's conduct.   Small did not prevail on his appeal, and there has been no suggestion by Statewide Bar Counsel or anyone else that Small's lack of success and his continued incarceration was in any way due to fault on the part of Bachman, Paine, those who transferred the file from Bachman to Paine, or anything else other than the facts and law applicable to the merits of Small's case.   Under all these circumstances, the court does not view that particular allegation of the presentment as suggesting that Bachman should serve a term of suspension before returning to the practice of law.

With regard to Bachman's mental status, Statewide Bar Counsel agrees that the medical records from his treating physician establish that his mental illness is no longer in and of itself an impediment to his ability to practice law.   At the hearing in this matter, Bachman appeared to the court to be healthy, alert and fully aware of the situation, albeit somewhat hesitant and rather deliberate in responding to the court's questions.   Part of this may be due to a natural reticence—Bachman has apparently always been most comfortable with the research and writing aspects of law and not the give and take of courtroom advocacy;  part may be due to the natural nervousness that is to be expected in a proceeding of this nature;  and part may be a reflection of his being not quite “ready for prime time,” a factor which he specifically recognizes in his proposals both to limit the nature of his practice and to do so under the supervision a highly respected attorney, Richard Emanuel, Esq., whose area of practice is the same as that which Bachman proposes to undertake.   The court is impressed by Bachman's recognition of the aspects of legal practice that are not his forte and his willingness to accept the oversight of a volunteer practitioner who recognizes that his primary duty will be protection of the public and only secondarily to help a colleague.   At the hearing, the court assured itself that Emanuel understood the role he would be expected to play, and that such a role could conceivably result in his having to report any failures on the part of Bachman to the Office of Disciplinary Counsel and/or the court.   The court has every confidence that Emanuel would be able and willing to do so if the need arose.

The Petitioner seeks a term of suspension retroactive to the date on which Bachman was placed on inactive status, January 28, 2005, with the requirement that he not be permitted to apply for reinstatement after he takes the Multistate Professional Responsibility Exam, completes nine hours of Continuing Legal Education in substantive law and an additional three hours in IOLTA or Law Office Management.   The court concludes that this recommendation is unduly harsh.   It takes more than six years of coming to grips with mental illness and receiving the appropriate treatment for it, and turns them into what would be a draconian seven years-plus suspension from practice by the time all conditions are completed.   It fails to give credit to Bachman for recognizing his problems, and it places too much blame on him for a solution—the parceling out of his files without prior consultation with clients—that was essentially the doing of well-intentioned friends.   Unlike the Cimino grievance, in which the lack of communication resulted in a blown statute of limitations with no opportunity for redress, there has been no evidence here of any prejudice to the grievance complainant in this case.   Finally, Petitioner's recommendation undervalues the care taken in crafting a thoughtful reentry plan for Bachman and the role to be played by Attorney Emanuel in assuring that Bachman complies with the Code of Professional Conduct.

When “a court disciplines an attorney, it does so not to mete out punishment to an offender but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.”  (Citations omitted.)  Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554 (1995).   In light of the limited and carefully supervised practice plan advocated for the Respondent, this court can not conclude that a period of suspension, and especially one made to be retroactive to the time, nearly seven years ago, when Bachman publicly recognized his disabilities and agreed to be placed on inactive status, is necessary to protect the public “from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.”   The misconduct in this case occurred many years ago and under circumstances that were indisputably related to his mental illness.   His subsequent recovery, the limited nature of his proposed practice, and the supervision to be provided by Attorney Emanuel, are, in this court's view, sufficient to provide the kind of protection to the public that the disciplinary process seeks.

That wrongfulness of Bachman's conduct, however, in his failing to communicate with his client about the denial of the petition for writ of habeas corpus and his own failure to prosecute the appeal, needs to be addressed, and this court believes that a reprimand is a sufficient deterrent to future misconduct and that, combined with the restrictions to be placed on Bachman's law practice, it provides the appropriate measure of public protection in this case.

The court therefore terminates Bachman's inactive status, finds the allegations of the presentment, which are admitted by the Respondent, to be proved by clear and convincing evidence, and therefore reprimands Bachman.   The court further reinstates Bachman to the practice of law, but under the following conditions, which are orders of the court, the violation of which can result in the imposition of additional discipline:

1. The Respondent is to limit his practice to the representation of individuals for whom he is prosecuting criminal appeals.   Any proposed change in that limitation during the next twelve months may not be taken without the court's approval.

2. Attorney Richard Emanuel is to act as “collegial assistant” to Bachman through December 1, 2012, unless relieved of that responsibility by the court prior to that date.   Attorney Emanuel is to send a quarterly (March 1, June 1, September 1 and December 1, 2012) written report to the Office of Disciplinary Counsel, with a courtesy copy to the undersigned, outlining his contacts with Bachman and his opinion and impressions with regard to Bachman's well-being and fitness to practice.

3) The Respondent is to contact Attorney Emanuel by telephone at least once per week during this twelve-month period and to discuss such matters as the handling of client funds, calendaring, caseload management and such other matters that may arise in the course of perfecting criminal appeals.

4) The Respondent shall maintain separate firm and IOLTA accounts at People's United Bank, which accounts are to be separate and distinct from any personal bank accounts.

5) The Respondent is to maintain calendar and tickler systems to be approved by Attorney Emanuel.   Such systems must, at a minimum, be designed to assure that any deadline will be noted at least one week before such deadline.

6) The Respondent shall prepare a Retainer Agreement Letter that includes the fact that he will be consulting with Attorney Emanuel from time to time and provides for the client's specific waiver of confidentiality for the limited purpose in engaging in such consultations.   A comparable letter will be drafted for Special Public Defender clients.

7) No later than May 30, 2012, the Respondent shall have taken and passed the Multistate Professional Responsibility Exam, completed nine hours of Continuing Legal Education in substantive law areas, and completed an additional three hours of Continuing Legal Education in IOLTA and/or Law Office Management.

8) The court will retain jurisdiction over this mater for the purpose of monitoring compliance with the above conditions.

Jonathan E. Silbert, Judge

FOOTNOTES

FN1. This Memorandum of Decision was amended on November 30, 2011 solely to reflect the fact that it was Statewide Bar Counsel, and not the Office of Disciplinary Counsel, that prosecuted this presentment proceeding..  FN1. This Memorandum of Decision was amended on November 30, 2011 solely to reflect the fact that it was Statewide Bar Counsel, and not the Office of Disciplinary Counsel, that prosecuted this presentment proceeding.

Silbert, Jonathan E., J.