Office of the Chief Disciplinary Counsel v. Eroll Skyers (2010)

MEMORANDUM OF DECISION

The matter before this court is an application for reciprocal discipline against the respondent attorney, Eroll Skyers, following discipline meted against him by the United States Court of Appeals for the Second Circuit.   In this action this court considers what “commensurate action” shall be taken against the respondent within the meaning of Practice Book § 2-39(c).  Based on the reasons provided below, the court grants the application and orders that the respondent be reprimanded.

The following facts are necessary for the court's determination in this proceeding.   On June 17, 2010, the Second Circuit issued a summary order publicly reprimanding the respondent for conduct related to two cases before that court, and barring him for two years from practicing before the Second Circuit as a Criminal Justice Act (CJA) attorney.¹  According to the summary order, in both United States v. Baxter, 08-4975-cr, and State v. Jones, 03-1276-cr (L), the respondent had been continued as counsel pursuant to the CJA but later terminated as counsel after he failed to file briefs for his clients, resulting in default.   With respect to Baxter, the court had issued an order directing the respondent to explain why he should not be disciplined, but found inadequate his explanation that he had been “prevented” from filing a brief “by inattention, inadvertence and chronic procrastination.”   The respondent also did not explain his failure to respond to the court's repeated attempts to contact him regarding the status of the appeal or his failure to proceed after informing court employees that he would do so.   With regard to Jones, the respondent failed to respond to two court orders requiring him to explain his conduct where his client's appeal had been dismissed due to his failure to prosecute.   In addition, although the court had ordered the respondent to “list all cases” in that court “in which he is, or was, counsel of record or performing legal services for any litigant,” the respondent failed to comply with this directive.   In view of these factors, and the respondent's “significant reprimand history” in Connecticut, the Second Circuit concluded that it did not have the assurance that he would be able to conform with the court's rules and orders in the future.

On July 6, 2010, the petitioner, the Office of the Chief Disciplinary Counsel, filed the present application in compliance with Practice Book § 2-39(a).²  Pursuant to subsection (b) of the same section, the respondent was then served with a notice of presentment along with a certified copy of the summary order issued by the Second Circuit.³  A hearing was then held on August 19, 2010, in which the petitioner conceded that the Second Circuit's suspension of the respondent was narrowly confined to his representation of clients as a CJA attorney before that court, and therefore, commensurate discipline in this jurisdiction equates to a reprimand.   Nevertheless, the petitioner urged the court to consider “heightened discipline” in light of certain aggravating factors, including the respondent's experience as a legal practitioner, his six prior reprimands in Connecticut and the fact that the misconduct occurred in his capacity as a court appointed attorney and involved the administration of justice by the court.⁴

Although the respondent did not file an answer in response to the service of the summary order, he appeared at the hearing and admitted to the facts presented in the summary order.⁵  He did not present any defenses for his conduct but, on the contrary, stated to the court that he “takes responsibility for the fact that there were errors in judgment in approaching the cases” and “recognizes that he has a certain responsibility to fulfill with his clients.”   The respondent, however, requested lesser discipline than a reprimand, and proffered several mitigating factors, including an absence of a dishonest motive, lack of harm to his clients, a cooperative attitude and his voluntary disclosure of the disciplinary action to the petitioner.

Practice Book § 2-39(c) directs the court to take “commensurate action” with respect to discipline enacted in another jurisdiction “unless it is found that any defense set forth in the answer has been established by clear and convincing evidence.”   Some background to this rule is instructive.  “ ‘A century ago it was apparently not uncommon for a lawyer disbarred by one court to travel to another community, become admitted to the local bar, and continue to practice law.’   C.W. Wolfram, Modern Legal Ethics (1986) § 3.4.6, p. 115.   It was to avoid this type of result that the rules of practice in Connecticut and other jurisdictions enacted rules of reciprocal discipline ․ Most courts extend the reciprocity doctrine to include a practice of imposing a disciplinary sanction that normally will be the same in operative length and severity as that imposed in the first jurisdiction.   An inappropriately lenient or severe sanction, however, will not be copied.   Connecticut follows that majority view.”  (Citations omitted;  internal quotation marks omitted.)   Statewide Grievance Committee v. Tartaglia, Superior Court, judicial district of Hartford, Docket No. CV 03 0828136 (November 24, 2003, Shapiro, J.).

Nevertheless, our Supreme Court has admonished that “commensurate action ․ does not [necessarily] mean identical action.   The trial court [has] inherent judicial power, derived from judicial responsibility, for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it.”  (Internal quotation marks omitted.)   In re Weissman, 203 Conn. 380, 384, 524 A.2d 1141 (1987).  “A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession ․ Inherent in this process is a large degree of judicial discretion ․ A court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what that sanction should be.”  (Citations omitted.)  Statewide Grievance Committee v. Fountain, 56 Conn.App. 375, 378, 743 A.2d 647 (2000).

“Although the [R]ules [of Professional Conduct] define misconduct, they do not provide guidance for determining what sanctions are appropriate ․ Connecticut courts reviewing attorney misconduct, therefore, have consulted the American Bar Association's Standards for Imposing Lawyer Sanctions ․ Although the [ABA] standards have not been officially adopted in Connecticut, they are used frequently by the Superior Court in evaluating attorney misconduct and in determining discipline ․” (Citations omitted.)  Statewide Grievance Committee v. Fountain, supra, 56 Conn.App. 381.   Specifically, the ABA standards provide that the court should consider the following factors in its determination of the appropriate sanction:  (1) the duty violated;  (2) the lawyer's mental state;  (3) the potential or actual injury caused by the lawyer's misconduct;  and (4) the existence of aggravating or mitigating factors.   ABA Standards for Imposing Lawyer Sanctions § 3.0. The presence of aggravating or mitigating factors, however, should be considered only after the initial determination of the appropriate sanction.   See ABA Standards for Imposing Lawyer Sanctions, Chapter II, Theoretical Framework.

Under the undisputed facts as presented in the summary order, the respondent's gross inattention to his clients' files as exhibited in Baxter and Jones was a clear breach of his duty of diligence.   See Rules of Professional Conduct 1.3 (“[a] lawyer shall act with reasonable diligence and promptness in representing a client”).   It is not claimed, however, by the Second Circuit or the petitioner, that the respondent acted with a mental state beyond that of negligence in either case.⁶  Nevertheless, the court rejects the respondent's contention that no harm was caused to his clients in either case.   As a result of the respondent's failure to take action for his clients, both of their appeals had resulted in default dismissals.   The court can conceive of few clearer examples of injury or potential injury to a client.   Applying these factors under the ABA standards, the recommended discipline is reprimand.   See ABA Standards for Imposing Lawyer Sanctions § 4.43 (“[r]eprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client”).

The court notes the presence of both aggravating and mitigating considerations.   The court rejects, however, some of the aggravating factors presented by the petitioner.   While an attorney's inexperience in practicing law is indeed a mitigating factor;  see ABA Standards for Imposing Lawyer Sanctions § 9.32(f);  an attorney's experience should not heighten the discipline imposed.   The service of able attorneys whose skills and knowledge are sharpened through hard wrought experience are a benefit to society and this profession.   It is contrary to the policy of cultivating such attorneys to penalize lawyers for remaining in the profession.   Additionally, there is no discernable reason to discipline court appointed attorneys more harshly than other types of attorneys.   An attorney, regardless of ilk, is “an officer of the court in the administration of justice ․ [and] is continually accountable to it for the manner in which he exercises the privilege which has been accorded him.”  (Internal quotation marks omitted.)  Doe v. Statewide Grievance Committee, 240 Conn. 671, 684, 694 A.2d 1218 (1997).   Misconduct by any attorney, therefore, is an impediment to the court's administration of justice.

The respondent's forthcoming and cooperative attitude in this proceeding is commendable.   At the hearing he freely admitted to his errors as outlined in the summary order and acknowledged that he failed in his responsibility to his clients.   There is no claim of a dishonest or selfish motive on his part, and the petitioner conceded that he had self disclosed the disciplinary action taken by the Second Circuit.   Each of these factors is a mitigating consideration with respect to determining attorney discipline.   See ABA Standards for Imposing Lawyer Sanctions § 9.32. The court, however, does not agree with the respondent that a lesser discipline, such as taking a course in continuing legal education or court procedure, is appropriate.   The misconduct at issue is not the respondent's lack of skill or basic competence, but rather his inattentiveness and lack of diligence.   Furthermore, the court cannot overlook the respondent's six prior reprimands in Connecticut, which, although they do not indicate wilful or malicious conduct, together demonstrate an emerging and alarming pattern of inattention and lack of responsiveness to his clients and to the court.⁷

Weighing these considerations to the best of the court's ability, and with a view towards safeguarding the administration of justice and protecting the public, the court concludes that the mitigating factors are negated by the respondent's reprimand history.   Therefore, the court grants the application for reciprocal discipline, and orders that the respondent be reprimanded.

GILARDI, J.

FOOTNOTES

FN1. Legal representation under the CJA is governed in part by 18 U.S.C. § 3006A(a), which provides, in relevant part:  “Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan for furnishing representation for any person financially unable to obtain adequate representation in accordance with this section.   Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation.”   See also subsections (b) ( “[c]ounsel furnishing representation under the plan shall be selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the plan”) and (c) (“[a] person for whom counsel is appointed shall be represented at every stage of the proceedings”)..  FN1. Legal representation under the CJA is governed in part by 18 U.S.C. § 3006A(a), which provides, in relevant part:  “Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan for furnishing representation for any person financially unable to obtain adequate representation in accordance with this section.   Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation.”   See also subsections (b) ( “[c]ounsel furnishing representation under the plan shall be selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the plan”) and (c) (“[a] person for whom counsel is appointed shall be represented at every stage of the proceedings”).

FN2. Practice Book § 2-39(a) provides, in relevant part:  “Upon being informed that a lawyer admitted to the Connecticut bar has resigned, been disbarred, suspended or otherwise disciplined, or placed on inactive disability status in another jurisdiction, and that said discipline or inactive disability status has not been stayed, the disciplinary counsel shall obtain a certified copy of the order and file it with the superior court for the judicial district wherein the lawyer maintains an office for the practice of law in this state ․”.  FN2. Practice Book § 2-39(a) provides, in relevant part:  “Upon being informed that a lawyer admitted to the Connecticut bar has resigned, been disbarred, suspended or otherwise disciplined, or placed on inactive disability status in another jurisdiction, and that said discipline or inactive disability status has not been stayed, the disciplinary counsel shall obtain a certified copy of the order and file it with the superior court for the judicial district wherein the lawyer maintains an office for the practice of law in this state ․”

FN3. Practice Book § 2-39(b) provides, in relevant part:  “Upon receipt of a certified copy of the order, the court shall forthwith cause to be served upon the lawyer a copy of the order from the other jurisdiction ․ Such certified copy will constitute prima facie evidence that the order of the other jurisdiction entered and that the findings contained therein are true.”.  FN3. Practice Book § 2-39(b) provides, in relevant part:  “Upon receipt of a certified copy of the order, the court shall forthwith cause to be served upon the lawyer a copy of the order from the other jurisdiction ․ Such certified copy will constitute prima facie evidence that the order of the other jurisdiction entered and that the findings contained therein are true.”

FN4. The petitioner, however, provided no insight as to what specific sanction would be appropriate in view of the aggravating considerations presented..  FN4. The petitioner, however, provided no insight as to what specific sanction would be appropriate in view of the aggravating considerations presented.

FN5. The court notes that “an order directing the lawyer to file ․ an answer admitting or denying the action in the other jurisdiction and setting forth, if any, reasons why commensurate action in this state would be unwarranted” was not served on the respondent in accordance with Practice Book § 2-39(b).  Our Appellate Court, however, has held that “the failure to raise a procedural claim or the failure to utilize a remedy available to cure a procedural defect [in an attorney disciplinary proceeding] can constitute a waiver of the right to object to the alleged defect.”  (Internal quotation marks omitted.)  Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 462, 767 A.2d 732 (2001).   Since the respondent did not object to the defect at the hearing, admitted to the facts in the summary order and had full opportunity to present any pertinent defenses, the defect was waived..  FN5. The court notes that “an order directing the lawyer to file ․ an answer admitting or denying the action in the other jurisdiction and setting forth, if any, reasons why commensurate action in this state would be unwarranted” was not served on the respondent in accordance with Practice Book § 2-39(b).  Our Appellate Court, however, has held that “the failure to raise a procedural claim or the failure to utilize a remedy available to cure a procedural defect [in an attorney disciplinary proceeding] can constitute a waiver of the right to object to the alleged defect.”  (Internal quotation marks omitted.)  Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 462, 767 A.2d 732 (2001).   Since the respondent did not object to the defect at the hearing, admitted to the facts in the summary order and had full opportunity to present any pertinent defenses, the defect was waived.

FN6. Similarly, it is not claimed that the respondent knowingly failed to comply with the Second Circuit's order to provide a list of cases “in which he is, or was, counsel of record or performing legal services for any litigant.”   As such, this court cannot determine, in light of the record before it, whether he had violated any duty to the court.   See Rule 8.1(2) of the Rules of Professional Conduct (“a lawyer in connection ․ with a disciplinary matter, shall not ․ knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority”).  (Emphasis added.).  FN6. Similarly, it is not claimed that the respondent knowingly failed to comply with the Second Circuit's order to provide a list of cases “in which he is, or was, counsel of record or performing legal services for any litigant.”   As such, this court cannot determine, in light of the record before it, whether he had violated any duty to the court.   See Rule 8.1(2) of the Rules of Professional Conduct (“a lawyer in connection ․ with a disciplinary matter, shall not ․ knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority”).  (Emphasis added.)

FN7. See the grievance committee decisions in grievance complaint numbers 09-0648, 07-0022, 01-0471, 01-0383, 01-0276 and 96-0593.   The latest reprimand, 09-0648, was issued by the grievance committee recently on July 9, 2010..  FN7. See the grievance committee decisions in grievance complaint numbers 09-0648, 07-0022, 01-0471, 01-0383, 01-0276 and 96-0593.   The latest reprimand, 09-0648, was issued by the grievance committee recently on July 9, 2010.

Gilardi, Richard P., J.T.R.