Office of Chief Disciplinary Counsel v. Vaccaro

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Office of Chief Disciplinary Counsel v. Vaccaro

OFFICE OF CHIEF DISCIPLINARY COUNSEL
v. ENRICO VACCARO
(AC 45766)
Elgo, Prescott and Keller, Js.

Syllabus

The respondent attorney appealed to this court from the judgment of the
trial court suspending him from the practice of law for a period of ninety
days as a result of his inaction while representing a client that led to
the dismissal, with prejudice, of the client’s personal injury lawsuit. The
petitioner, the Office of Chief Disciplinary Counsel, filed a presentment
complaint against the respondent, alleging the misconduct at issue after
a reviewing committee of the Statewide Grievance Committee conducted
a hearing and concluded that the respondent had violated the Rules of
Professional Conduct. The respondent filed a motion to dismiss the
grievance complaint, in which he claimed that he was denied his right
to due process and prejudiced as a result of numerous, extensive delays
in the adjudication of the complaint. The reviewing committee denied
that motion and then proceeded with the remainder of the hearing on
the misconduct complaint. The reviewing committee found that there
was no evidence that the respondent had suffered any prejudice and
concluded that his violation of the Rules of Professional Conduct war-
ranted a reprimand. The reviewing committee further determined that
it was required to direct the petitioner to file the presentment pursuant
to the applicable rule of practice (§ 2-47 (d) (1)) because the respondent
had received three disciplinary reprimands in the five years prior to the
filing of the grievance complaint at issue. The Statewide Grievance
Committee upheld the reviewing committee’s decision. The respondent
did not appeal from either of those rulings. At the presentment hearing,
the trial court stated that it was bound by the findings of the reviewing
committee and that, pursuant to Practice Book § 2-47 (d) (1), the hearing
was limited to determining the penalty to be imposed. The court stated
that it considered the totality of the circumstances in fashioning its
penalty and noted the respondent’s lack of a sense of responsibility for
the behavior underlying the presentment and his lack of any expression
of contrition. Held:
1. The respondent could not prevail on his claim that the trial court erred
when it failed to consider his assertion that his due process rights
were violated and that he was prejudiced as result of the delay in
the underlying disciplinary proceedings: the respondent had sufficient
process available to him by way of an appeal from the reviewing commit-
tee’s denial of his motion to dismiss, but because he failed to appeal
from that determination, he was precluded from raising his due process
claim before the trial court; moreover, the respondent’s assertion that
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Office of Chief Disciplinary Counsel v. Vaccaro
he could not have appealed from the reviewing committee’s ruling
because the reviewing committee ordered presentment rather than
imposing sanctions or conditions was unavailing, as the applicable rule
of practice (§ 2-38) provides thirty days to file an appeal to the court,
and Practice Book § 2-47 (d) (2) makes clear that a reviewing commit-
tee’s denial of a motion to dismiss is a final decision subject to appellate
review; furthermore, any appeal from the denial of the respondent’s
motion to dismiss had to be taken before the matter was presented to
the trial court, as Practice Book § 2-47 (d) (1) precludes the court from
considering facts or evidence that do not directly address what action
the court should take regarding the respondent’s misconduct, which
was the sole issue to be determined in the presentment hearing.
2. This court could not conclude that the trial court abused its discretion
by suspending the respondent from the practice of law for a period of
ninety days:
a. The respondent’s claim that the trial court improperly refused to
consider the delay in the underlying disciplinary proceedings as a mitigat-
ing factor in determining his punishment was not tenable: contrary to
the respondent’s assertion that the court’s interruptions of his testimony
indicated that it mistakenly believed it was precluded from considering
his due process rights and the delay in the underlying proceedings as a
mitigating factor, the court’s statement that it was limited to determining
the respondent’s penalty was an attempt to redirect his testimony, as
the respondent was attempting to make the very due process attack that
the court had warned it would not entertain; moreover, the respondent
was given ample time to testify about the delay as a mitigating factor,
and both parties’ counsel discussed aggravating and mitigating factors,
some of which the court referenced in its written decision; furthermore,
the court was free to credit or reject the respondent’s testimony, and
the absence of discussion of the delay as a mitigating factor in the court’s
decision was of no consequence, as the court was not required to set
forth its express consideration of specific evidence.
b. This court found unavailing the respondent’s claim that the ninety
day suspension imposed against him was excessive and out of proportion
to the offense he committed: the respondent failed to demonstrate that
the trial court acted arbitrarily by ordering the ninety day suspension,
as it was required under Practice Book § 2-47 (d) (1) to consider the
nature of the respondent’s misconduct and the prior disciplinary mea-
sures imposed against him during the five year period prior to the filing
of the grievance complaint at issue; moreover, the record showed that
the court heard evidence regarding relevant aggravating and mitigating
factors, asked both parties questions regarding those factors and pro-
vided ample time for their responses, and made specific reference to
several of those factors in its decision; accordingly, this court could not
conclude that the trial court abused its discretion in determining the
appropriate discipline for the respondent.
Argued October 11, 2023—officially released June 11, 2024
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Office of Chief Disciplinary Counsel v. Vaccaro

Procedural History

Presentment by the petitioner for the alleged profes-
sional misconduct of the respondent, brought to the
Superior Court in the judicial district of New Haven
and tried to the court, Abrams, J.; judgment suspending
the respondent from the practice of law for ninety days,
from which the respondent appealed to this court.
Affirmed.
Alexander T. Taubes, for the appellant (respondent).
Leanne M. Larson, first assistant chief disciplinary
counsel, for the appellee (petitioner).
Opinion

ELGO, J. In this presentment matter, the respondent
attorney, Enrico Vaccaro, appeals from the judgment
of the trial court disciplining him after the Statewide
Grievance Committee (grievance committee) directed
the petitioner, the Office of Chief Disciplinary Counsel
(disciplinary counsel), to file a presentment pursuant to
Practice Book § 2-47 (d) (1)1 for the purpose of imposing
1
Practice Book § 2-47 (d) (1) provides in relevant part: ‘‘If a determination
is made by the Statewide Grievance Committee or a reviewing committee
that a respondent is guilty of misconduct and such misconduct does not
otherwise warrant a presentment to the Superior Court, but the respondent
has been disciplined pursuant to these rules by the Statewide Grievance
Committee, a reviewing committee or the court at least three times pursuant
to complaints filed within the five year period preceding the date of the
filing of the grievance complaint that gave rise to such finding of misconduct
in the instant case, the Statewide Grievance Committee or the reviewing
committee shall direct the disciplinary counsel to file a presentment against
the respondent in the Superior Court. . . . The sole issue to be determined
by the court upon the presentment shall be the appropriate action to take
as a result of the nature of the misconduct in the instant case and the
cumulative discipline issued concerning the respondent within such five
year period. Such action shall be in the form of a judgment dismissing the
complaint or imposing discipline as follows: reprimand, suspension for a
period of time, disbarment or such other discipline as the court deems
appropriate. This may include conditions to be fulfilled by the respondent
before he or she may apply for readmission or reinstatement. . . .’’
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appropriate discipline. On appeal, the respondent claims
that the court (1) erred by failing to consider that the
delay in the underlying disciplinary proceedings vio-
lated his due process rights and (2) abused its discretion
by suspending him from the practice of law for a period
of ninety days. We affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The respondent was admitted to
the Connecticut bar on October 5, 1976. Prior to the
commencement of the present action, the respondent
received three disciplinary reprimands between August
14, 2015, and May 19, 2017. Two of the reprimands were
issued by the grievance committee, and the third was
a court-issued reprimand.2
On September 26, 2018, the grievance committee
received a letter of referral from an attorney retained by
a prior client of the respondent. Following a preliminary
investigation, the grievance committee, on or about
November 6, 2018, charged the Litchfield Judicial Dis-
trict Grievance Panel (first grievance panel or complain-
ant) with ‘‘determining whether to conduct an investiga-
tion into this matter pursuant to Practice Book [§] 2-
29 (e) (1), or to initiate a complaint pursuant to [Practice
Book §] 2-32 (a), or both.’’ On December 27, 2018, the
first grievance panel filed a grievance complaint (com-
plaint) against the respondent with the statewide bar
counsel (bar counsel) in accordance with Practice Book
§ 2-32 (a).3 The first grievance panel will hereafter be
referred to as the complainant.
2
In its August 29, 2022 memorandum of decision, the court found by
clear and convincing evidence that the respondent had ‘‘an extensive recent
disciplinary history [that included] [1] [a] reprimand issued by the Statewide
Grievance Committee on August 14, 2015, accompanied by an order to
take two continuing legal education classes; [2] a reprimand issued by the
Statewide Grievance Committee on February 10, 2016; [3] a court-issued
reprimand by Judge Bellis on May 19, 2017; and [4] [an] October 24, 2018
order by Judge Arnold that he take two continuing legal education classes.’’
3
The process that governs the procedural history of this case, which
ultimately resulted in a determination that probable cause existed that the
respondent was guilty of misconduct, can be found in Practice Book § 2-
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In accordance with the procedure prescribed in Prac-
tice Book § 2-32 (a), the bar counsel reviewed and pro-
cessed the complaint, which alleged that, in the course
of representing a prior client, the respondent’s inaction
resulted in the dismissal, with prejudice, of that client’s
motor vehicle-personal injury lawsuit. The complaint
was then reviewed by a second grievance panel (second
grievance panel) in the New Haven judicial district,
which sent notice to the complainant and the respon-
dent in accordance with § 2-32 to allow the parties an
opportunity to respond to the inquiry. Upon completion
of its review, the second grievance panel determined
that ‘‘the record supported a finding of probable cause
that the [r]espondent engaged in misconduct.’’ The sec-
ond grievance panel sent a copy of its record to the
grievance committee and disciplinary counsel for fur-
ther proceedings, and provided notice to the parties as
required by § 2-32 (i) and (k).
32, which provides in relevant part: ‘‘(a) Any person, including disciplinary
counsel, or a grievance panel on its own motion, may file a written complaint
. . . alleging attorney misconduct . . . . Complaints against attorneys
shall be filed with the statewide bar counsel. . . . [T]he statewide bar coun-
sel shall review the complaint and . . .
‘‘(1) forward the complaint to a grievance panel in the judicial district in
which the respondent maintains his or her principal office or residence
. . . .
‘‘(f) The grievance panel, with the assistance of the grievance counsel
assigned to it, shall investigate each complaint to determine whether proba-
ble cause exists that the attorney is guilty of misconduct. . . .
‘‘(i) . . . (1) If the panel determines that probable cause exists that the
respondent is guilty of misconduct, it shall file the following with the State-
wide Grievance Committee and with the disciplinary counsel: (A) its written
determination that probable cause exists that the respondent is guilty of
misconduct, (B) a copy of the complaint and response, (C) a transcript of
any testimony heard by the panel, (D) a copy of any investigatory file and
copies of any documents, transcripts or other written materials which were
available to the panel. These materials shall constitute the panel’s record
in the case. . . .
‘‘(k) The panel shall notify the complainant, the respondent, and the
Statewide Grievance Committee of its determination. The determination
shall be a matter of public record if the panel determines that probable
cause exists that the respondent is guilty of misconduct.’’
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The grievance committee received the determination
of probable cause and the related records on or about
April 17, 2019. It thereafter referred the matter to a
reviewing committee of the Statewide Grievance Com-
mittee (reviewing committee) on April 29, 2019, to hold
a hearing and render a decision regarding the complaint,
in accordance with Practice Book § 2-35 (a) and (c).4
What followed was a series of continuances, post-
ponements, and other occurrences that ultimately
delayed the hearing for eight months.5 Although that
hearing commenced on the morning of February 13,
2020, the parties were not able to complete the hearing
because the respondent’s counsel had an afternoon
scheduling conflict with another matter. The reviewing
committee granted a recess and subsequently sent
notice to the parties that the hearing was to continue
on April 23, 2020. By mid-March, 2020, however, the
Judicial Branch had reduced its operations to hear only
top priority matters as a result of the COVID-19 pan-
demic. On June 11, 2021, the requirement for a reviewing
committee to be physically present at a contested hear-
ing was eliminated, and the matter was scheduled for
a virtual hearing on July 13, 2021. A lack of quorum due
to an emergency with a reviewing committee member
4
Practice Book § 2-35 provides in relevant part: ‘‘(a) Upon receipt of the
record from a grievance panel, the Statewide Grievance Committee may
assign the case to a reviewing committee . . . .
‘‘(c) If the grievance panel determined that probable cause exists that the
respondent is guilty of misconduct, the Statewide Grievance Committee or
the reviewing committee shall hold a hearing on the complaint. . . .’’
5
The reviewing committee’s January 21, 2022 decision detailed that the
matter initially was scheduled for June 13, 2019. Thereafter, disciplinary
counsel requested two separate continuances, and the respondent requested
one. Each party consented to the other party’s requests for continuances.
Separately, additional postponements were necessary to permit the respon-
dent to appear via videoconference and because of technical difficulties
that arose with the videoconferencing equipment. A final continuance was
needed prior to scheduling the February 13, 2020 hearing because an inter-
preter was not available.
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caused the matter to again be rescheduled, this time
to September 28, 2021.
Approximately two weeks prior to the commence-
ment of the September 28, 2021 hearing, the respondent
filed a motion to dismiss the grievance complaint,
arguing, inter alia, that he has been ‘‘irreparably harmed
and prejudiced by . . . the prior delays, and his due
process rights to a fair and expeditious hearing have
been violated.’’ Disciplinary counsel filed an objection
to the respondent’s motion to dismiss, arguing, inter
alia, that the respondent had failed to demonstrate any
prejudice due to the delays.
During the hearing on September 28, 2021, the reviewing
committee heard oral arguments regarding the motion
to dismiss. Disciplinary counsel argued that the respon-
dent had alleged prejudice as a result of the delay in
the proceedings but had not offered any proof of actual
prejudice. The reviewing committee denied the motion
to dismiss, then proceeded with the remainder of the
hearing on the misconduct complaint.
The reviewing committee issued its written decision
on January 21, 2022, as required by Practice Book § 2-
35 (i). It stated that the respondent’s motion to dismiss
was denied because ‘‘[t]here was no evidence . . . that
the [r]espondent [had] suffered any prejudice from the
delay’’ and because ‘‘dismissal of the complaint solely
for delay is expressly prohibited by . . . Practice Book
[§ 2-35 (m)].’’6 The reviewing committee further con-
cluded, ‘‘by clear and convincing evidence, that the
[r]espondent [had] violated the Rules of Professional
Conduct’’ and that the violation ‘‘warrants a reprimand.’’
Finally, the reviewing committee stated that ‘‘[w]e
Practice Book § 2-35 (m) provides in relevant part: ‘‘The failure of a
6

reviewing committee to complete its action on a complaint within the period
of time provided in this section shall not be cause for dismissal of the
complaint. . . .’’
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would have ordered the respondent reprimanded for
his conduct in this matter, but we are mandated to
present him to the court based on his prior disciplinary
history. Pursuant to Practice Book § 2-47 (d), because
the [grievance committee] and the court have disci-
plined the respondent more than three times in com-
plaints filed in the five year period prior to the filing
of this grievance complaint . . . we direct the disci-
plinary counsel to file a presentment against the respon-
dent in the Superior Court for the imposition of what-
ever discipline is deemed appropriate.’’
The respondent’s counsel filed a request for review
of that decision with the grievance committee, pursuant
to Practice Book § 2-35 (k), arguing, inter alia, that
‘‘the extraordinary delay of almost three years in the
adjudication of this grievance complaint, with the obvi-
ous prejudices to the respondent . . . is fundamentally
unfair, has deprived the respondent of his right to the
timely hearing compelled by due process, and has
resulted in irreparable prejudice and harm to him.’’ The
respondent further alleged that the delay: resulted in
damage to his professional and business reputation,
income, and emotional and physical well-being; caused
an increase in the cost of litigating the matter over an
extended period of time; and caused the parties’ and
witnesses’ memories to be diminished, which was preju-
dicial to him. The grievance committee affirmed the
decision of the reviewing committee on March 18, 2022,
and the respondent did not appeal from that decision.
On March 21, 2022, in compliance with the reviewing
committee’s direction contained in its January 21, 2022
decision, disciplinary counsel filed this presentment,
noting that it was required to do so pursuant to Practice
Book § 2-47 (d) because of the respondent’s prior disci-
plinary history. The respondent filed a ‘‘motion to con-
sider and adjudicate issues in appeal’’ on May 23, 2022,
admitting that he did not file an appeal but nonetheless
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requesting that the court adjudicate issues he wanted
to raise from the committees’ decisions. The court
denied the motion as untimely.
During the presentment hearing on May 25, 2022, the
court stated that the ‘‘level of inquiry is limited to the
penalty to be imposed’’ and that the court is ‘‘bound
by the findings’’ of the reviewing committee. The court
heard testimony concerning both aggravating and miti-
gating factors. Disciplinary counsel discussed various
aggravating factors, including, inter alia, the details of
the current violation, multiple disciplinary offenses
within a short time frame, the respondent’s lack of
remorse, his refusal to acknowledge the wrongful
nature of his conduct, and his substantial experience in
the practice of law. The respondent’s counsel discussed
several potential mitigating factors, including, inter alia,
the respondent’s history of good standing within his
profession, the lack of a dishonest motive for the cur-
rent violation, the declining health of the respondent’s
parents, and the respondent’s own declining health. The
respondent personally testified as to the delay in the
disciplinary proceedings, personal problems involving
his parents’ health, and that restitution was made to
his former client in the personal injury case that led to
the presentment. Disciplinary counsel ultimately advo-
cated for a thirty day suspension, and the respondent’s
counsel argued for dismissal, or, if the court believed
discipline was necessary, a requirement that the respon-
dent perform pro bono legal work.
The court issued its memorandum of decision on
August 29, 2022, noting that its role in the proceeding
was circumscribed by Practice Book § 2-47 (d), which
provides, inter alia, that ‘‘[t]he sole issue to be deter-
mined by the court upon the presentment shall be the
appropriate action to take as a result of the nature of
the misconduct in the instant case and the cumulative
discipline issued concerning the respondent within
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such five year period.’’ The court stated that the ‘‘cur-
rent presentment involves the respondent’s failure to
communicate with and adequately pursue the interests
of his clients. . . . To the extremely limited extent he
was willing to recognize these failures during his testi-
mony before this court, he attributed them to issues in
his personal life, specifically the stresses and responsi-
bility brought on by the deteriorating health of his aging
parents.’’ The court stated that ‘‘the Practice Book gives
this court the power and responsibility to consider . . .
the totality of the circumstances in fashioning a penalty.
Unfortunately, based on the circumstances, particularly
the respondent’s lack of any real sense of responsibility
for the behavior at issue or the expression of any level
of contrition, the court is not convinced that any level
of disciplinary action will serve to guarantee that these
issues will not arise again.’’ The court entered an order
suspending the respondent from the practice of law
for ninety days and, pursuant to Practice Book § 2-
64, appointed a trustee to protect the interests of the
respondent’s clients. From that judgment, the respon-
dent now appeals.
I
The respondent first claims that the court erred in
failing to consider his claim that his due process rights
were violated by the delay in the underlying disciplinary
proceedings. More specifically, the respondent argues
that the court’s belief that it could not consider his due
process claims flowing from that delay and the resulting
prejudice was an error of law that warrants dismissal
of the case. In response, disciplinary counsel argues that
the respondent’s underlying claim that his due process
rights were violated is unreviewable because the
respondent failed to appeal from the reviewing commit-
tee’s denial of his motion to dismiss based on the same
argument, as required by Practice Book § 2-47 (d) (2).
As such, disciplinary counsel contends that the court
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properly refused to consider the respondent’s due pro-
cess claim in the presentment hearing. We agree with
disciplinary counsel.
Whether a court correctly determines that reviewing
a due process violation is outside its scope of authority
is a question of law over which we exercise plenary
review. See AvalonBay Communities, Inc. v. Plan &
Zoning Commission, 260 Conn. 232, 239–40, 796 A.2d
1164 (2002).
The respondent first raised the due process claim in
his September 15, 2021 motion to dismiss before the
reviewing committee, asserting that ‘‘his due process
rights to a fair and expeditious hearing have been vio-
lated,’’ and that, as a result, he was ‘‘irreparably harmed
and prejudiced by this and the prior delays . . . .’’ The
reviewing committee denied the motion after finding
that ‘‘[t]here was no evidence that . . . the respondent
suffered any prejudice from the delay.’’ The reviewing
committee additionally concluded that the respondent
had violated the Rules of Professional Conduct, the
violation warranted a reprimand and, because it was
his fourth violation in less than five years, directed
disciplinary counsel to file a presentment against the
respondent in accordance with Practice Book § 2-47
(d). The grievance committee affirmed the decision of
the reviewing committee on March 18, 2022, over the
respondent’s objections that his due process rights were
violated and that he suffered prejudice as a result of
the delays in the proceedings. The respondent did not
appeal from that decision.
In resolving this claim, we note that an appeal chal-
lenging the adjudication of issues arising from a disci-
plinary hearing must be reviewed in accordance with
Practice Book § 2-38 (a) through (f), which provides
thirty days for a respondent to file an appeal with the
court. Moreover, Practice Book § 2-47 (d) (2) provides:
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‘‘If the respondent has appealed the issuance of a finding
of misconduct made by the Statewide Grievance Com-
mittee or the reviewing committee, the court shall first
adjudicate and decide that appeal in accordance with
the procedures set forth in subsections (d) through
(f) of Section 2-38. In the event the court denies the
respondent’s appeal of the finding of misconduct, the
court shall then adjudicate the presentment brought
under this section. In no event shall the court review
the merits of the matters for which the prior reprimands
were issued against the respondent.’’ (Emphasis added.)
The respondent does not dispute that he failed to
appeal from the denial of his motion to dismiss. Instead,
he argues that he could not have taken an appeal at
that juncture because Practice Book § 2-38 only allows
for an appeal from a decision ‘‘imposing sanctions or
conditions against the respondent, in accordance with
[Practice Book §] 2-37 (a),’’ and the reviewing commit-
tee ordered presentment as opposed to imposing sanc-
tions or conditions. We are unpersuaded.
First, in his motion filed on May 23, 2022, the respon-
dent moved the court to ‘‘consider and adjudicate’’
issues he wanted to raise on appeal ‘‘pursuant to Prac-
tice Book § 2-47 (d) (2),’’ acknowledging that he had
failed to timely appeal from the underlying disciplinary
proceedings in accordance with subsections (d)
through (f) of Practice Book § 2-38, as required by Prac-
tice Book § 2-47 (d) (2).7 Second, subsections (d)
7
Instead of filing an appeal, on May 23, 2022, the respondent filed a motion
that he titled, ‘‘Motion to Consider and Adjudicate Issues in Appeal from
Statewide Grievance Committee/Reviewing Committee.’’ In this motion, the
respondent moved that the court consider an unfiled, untimely appeal pursu-
ant to Practice Book § 2-47 (d) (2) because ‘‘substantial rights of the [r]espon-
dent have been prejudiced’’ by the decision of the grievance committee and
subcommittees. The motion contained an accompanying affidavit from the
respondent’s counsel, stating, inter alia: ‘‘It was my intention and the inten-
tion of the [r]espondent . . . to appeal under Practice Book [§] 2-38 the
aforementioned decision of the Statewide Grievance Committee/Reviewing
Committee . . . . Due to a miscommunication within my office, the [a]ppeal
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through (f) of § 2-38 provide in relevant part: ‘‘(d) The
appeal shall be conducted by the court without a jury
and shall be confined to the record. . . . (e) The
respondent shall file a brief within thirty days after the
filing of the record by the statewide bar counsel. . . .
(f) Upon appeal, the court shall not substitute its judg-
ment for that of the Statewide Grievance Committee
or reviewing committee as to the weight of the evidence
on questions of fact. The court shall affirm the decision
of the committee unless the court finds that substantial
rights of the respondent have been prejudiced because
the committee’s findings, inferences, conclusions, or
decisions are: (1) in violation of constitutional provi-
sions . . . .’’ The plain import of these provisions
makes clear that the reviewing committee’s denial of the
respondent’s motion to dismiss based on its conclusion
that he had failed to demonstrate prejudice was a deter-
mination that was subject to appellate review as out-
lined therein. Put differently, the respondent attempts
to assign error to the court when he simply failed to
exercise fully the appellate rights available to him.
‘‘[T]he law has established appropriate proceedings
to which a judgment party may always resort when he
deems himself wronged by the court’s decision. . . .
If he omits or neglects to test the soundness of the
judgment by these or other direct methods available
for that purpose, he is in no position to urge its defective
or erroneous character when it is pleaded or produced
in evidence against him in subsequent proceedings.’’
(Internal quotation marks omitted.) Sousa v. Sousa, 322
Conn. 757, 771, 143 A.3d 578 (2016). ‘‘Consequently, a
party who fails to appeal from an agency decision may
not use a different action as a substitute for that appeal
to achieve a de novo determination of a matter upon
which they failed to take a timely appeal.’’ (Internal
. . . was not filed . . . within the thirty . . . day time limit specified in
Practice Book [§] 2-38.’’
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quotation marks omitted.) Peck v. Statewide Grievance
Committee, 198 Conn. App. 233, 248, 232 A.3d 1279
(2020).
We reiterate that, when a presentment is ordered
under Practice Book § 2-47 (d) (1), ‘‘[t]he sole issue to
be determined by the court upon the presentment shall
be the appropriate action to take as a result of the
nature of the misconduct . . . .’’ (Emphasis added.)
Practice Book § 2-47 (d) (1). Although the court is
bound by the reviewing committee’s and grievance com-
mittee’s findings of fact from the underlying hearing, the
court may consider aggravating and mitigating factors
when determining what action to take as a result of the
misconduct. Importantly, consideration of aggravating
and mitigating factors to inform a decision regarding
discipline is a completely different inquiry than consid-
ering arguments that attack the underlying findings of
fact by the reviewing or grievance committees. The
latter is not permitted under Practice Book § 2-47 (d)
(1). Consequently, any appeal from a finding of miscon-
duct or the denial of a motion to dismiss must be taken
before the matter is presented to the Superior Court.
In the present matter, the reviewing committee con-
sidered the merits of the respondent’s motion to dis-
miss, which raised a due process argument based on
purported prejudice caused by the excessive delay in
the underlying disciplinary proceedings. In denying his
motion, the reviewing committee concluded that
‘‘[t]here was no evidence that . . . the [r]espondent
[had] suffered any prejudice from the delay.’’ The
respondent made identical due process arguments to
the grievance committee in his request for review of
the reviewing committee’s decision but did not there-
after file an appeal challenging either the reviewing
committee’s decision or the grievance committee’s
affirmance of that decision. As a result, the finding that
there was not sufficient evidence to demonstrate that
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the respondent had suffered prejudice from the delayed
proceedings is a final decision from which he failed to
take an appeal. It follows that the respondent ‘‘may not
use a different action as a substitute for [an] appeal to
achieve a de novo determination of a matter upon which
[he] failed to take a timely appeal.’’ (Internal quotation
marks omitted.) Peck v. Statewide Grievance Commit-
tee, supra, 198 Conn. App. 248. The respondent’s failure
to test the soundness of the reviewing committee’s find-
ings regarding his due process argument via a direct
appeal is fatal, as he may not attempt to litigate the
same issue in subsequent proceedings. See Sousa v.
Sousa, supra, 322 Conn. 771.
In the same memorandum of decision, the reviewing
committee found, ‘‘by clear and convincing evidence,
that the [r]espondent [had] violated the Rules of Profes-
sional Conduct’’ and directed disciplinary counsel to
file a presentment against the respondent in accordance
with Practice Book § 2-47 (d). The respondent has not
contested the underlying findings made by the
reviewing committee that he did, in fact, engage in
misconduct. Specifically, he did not take an appeal pur-
suant to § 2-47 (d) (2).
In sum, the reviewing committee determined that
the delay in the disciplinary proceedings did not cause
prejudice to the respondent. Having failed to test that
finding by appeal, the respondent may not continue to
argue—as a factual matter—that the delay prejudiced
him. Although the respondent argues that he was
deprived of due process during the disciplinary pro-
ceedings, he had sufficient process available to him by
way of an appeal. As a result, the court did not err by
failing to consider whether the delay in the disciplinary
proceedings caused prejudice, both because the respon-
dent had failed to appeal from that determination made
by the reviewing committee, and because, pursuant to
Practice Book § 2-47 (d) (1), the court was precluded
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from considering any facts or evidence that did not
directly address what action the court should take
regarding the misconduct.
II
The respondent next claims that the court abused its
discretion in suspending him from the practice of law
for a period of ninety days. Specifically, the respondent
argues that (1) the court expressly refused to consider
the delay in the underlying disciplinary proceedings as
a mitigating factor, and (2) under the circumstances,
the ninety day suspension ‘‘was an excessive abuse of
[the court’s] discretion.’’ We disagree with both argu-
ments.
As an initial matter, we note that ‘‘[t]he trial court
possesses inherent judicial power, derived from judicial
responsibility for the administration of justice, to exer-
cise sound discretion to determine what sanction to
impose in light of the entire record before it. . . . It
is well established that in sanctioning an attorney for
violations of the Rules of Professional Conduct, courts
are, as they should be, left free to act as may in each
case seem best in this matter of most important concern
to them and to the administration of justice. . . .
Whether this court would have imposed a different
sanction is not relevant. Rather, we must determine
whether the trial court abused its discretion in determin-
ing the nature of the sanction. . . . We may reverse
the court’s decision [in sanctioning an attorney] only
if that decision was unreasonable, unconscionable or
arbitrary, and was made without proper consideration
of the facts and law pertaining to the matter submitted.’’
(Citations omitted; internal quotation marks omitted.)
Statewide Grievance Committee v. Egbarin, 61 Conn.
App. 445, 459–60, 767 A.2d 732, cert. denied, 255 Conn.
949, 769 A.2d 64 (2001).
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A
The respondent first argues that the court committed
legal error by operating under the mistaken belief that
it was precluded from considering his due process
rights and the effect of the delay in the underlying
disciplinary proceedings as a mitigating factor when
meting out the appropriate discipline. The respondent
thus argues that the court’s purported express refusal
to consider the impact of the delay as a mitigating factor
was an abuse of discretion based on an error of law.
Because the respondent alleges that the court’s order
imposing discipline was informed by an improper legal
conclusion that it was precluded from considering a
permissible mitigating factor, our review of that issue
is plenary. ‘‘This court affords plenary review to conclu-
sions of law reached by the trial court. . . . Under
plenary review, we must decide whether the trial court’s
conclusions of law are legally and logically correct and
find support in the record.’’ (Internal quotation marks
omitted.) Weinshel, Wynnick & Associates, LLC v. Bon-
giorno, 192 Conn. App. 768, 777, 218 A.3d 626 (2019).
A court presiding over a presentment hearing under
Practice Book § 2-47 (d) (1) is not permitted to consider
arguments that would attack the facts previously deter-
mined by the reviewing committee because ‘‘[t]he sole
issue to be determined . . . shall be the appropriate
action to take as a result of the nature of the misconduct
. . . .’’ (Emphasis added.) The court is permitted, how-
ever, to consider aggravating and mitigating factors
when determining the appropriate action or discipline
to impose on the attorney. ‘‘Courts considering sanc-
tions against attorneys measure the defendant’s con-
duct against the [Rules of Professional Conduct (rules)].
Although the rules define misconduct, they do not pro-
vide guidance for determining what sanctions are
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appropriate. . . . Connecticut courts reviewing attor-
ney misconduct, therefore, have consulted the Ameri-
can Bar Association’s Standards for Imposing Lawyer
Sanctions [ABA standards] . . . . Although the [ABA]
standards have not been officially adopted in Connecti-
cut, they are used frequently by the Superior Court
in evaluating attorney misconduct and in determining
discipline . . . . [A]fter a finding of misconduct, a
court should consider: (1) the nature of the duty vio-
lated; (2) the attorney’s mental state; (3) the potential or
actual injury stemming from the attorney’s misconduct;
and (4) the existence of aggravating or mitigation fac-
tors.’’ (Citation omitted; internal quotation marks omit-
ted.) Disciplinary Counsel v. Serafinowicz, 160 Conn.
App. 92, 99, 123 A.3d 1279, cert. denied, 319 Conn. 953,
125 A.3d 531 (2015).
The ABA Standards list aggravating factors as fol-
lows. ‘‘Aggravating factors include: (a) prior disciplin-
ary offenses; (b) dishonest or selfish motive; (c) a pat-
tern of misconduct; (d) multiple offenses; (e) bad faith
obstruction of the disciplinary proceeding by intention-
ally failing to comply with rules or orders of the disci-
plinary agency; (f) submission of false evidence, false
statements, or other deceptive practices during the dis-
ciplinary process; (g) refusal to acknowledge wrongful
nature of conduct; (h) vulnerability of victim; (i) sub-
stantial experience in the practice of law; (j) indiffer-
ence to making restitution; [and] (k) illegal conduct,
including that involving the use of controlled sub-
stances.’’ A.B.A., Annotated Standards for Imposing
Lawyer Sanctions (2019) standard 9.22, p. 451. The stan-
dards also list the following as mitigating factors: ‘‘(a)
absence of a prior disciplinary record; (b) absence of
a dishonest or selfish motive; (c) personal or emotional
problems; (d) timely good faith effort to make restitu-
tion or to rectify consequences of misconduct; (e) full
and free disclosure to disciplinary board or cooperative
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attitude toward proceedings; (f) inexperience in the
practice of law; (g) character or reputation; (h) physical
disability; (i) mental disability or chemical dependency
. . . (j) delay in disciplinary proceedings; (k) imposi-
tion of other penalties or sanctions; (l) remorse; [and]
(m) remoteness of prior offenses.’’ (Emphasis added.)
A.B.A., Annotated Standards for Imposing Lawyer Sanc-
tions (2019) standard 9.32, p. 487.
Although the ABA Standards are frequently used as
a guide for courts in determining appropriate discipline,
‘‘[t]he Standards, originally promulgated in 1986, have
not formally been adopted by the judges of this state.’’
(Internal quotation marks omitted.) Burton v. Mot-
tolese, 267 Conn. 1, 55 n.50, 835 A.2d 998 (2003), cert.
denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983
(2004). Accordingly, although ‘‘a court should consider
. . . the existence of aggravating or mitigating factors’’;
(emphasis added); id., 55; there is no express require-
ment that it do so. Further, even when a court is pro-
vided with relevant mitigating evidence, it is free to
reject that evidence. See Disciplinary Counsel v. Sera-
finowicz, supra, 160 Conn. App. 101.
The record reveals that, during the presentment hear-
ing, disciplinary counsel discussed the aggravating fac-
tors relevant to this case, which included the respon-
dent’s prior disciplinary offenses, his refusal to
acknowledge the wrongfulness of his actions or to
express remorse, and his substantial experience in the
practice of law. The respondent’s counsel discussed the
mitigating factors relevant to this case, which included
the absence of a disciplinary record prior to the more
recent history of violations, the absence of a dishonest
or selfish motive, the respondent’s personal problems,
and his physical impairment. The respondent testified
about the delay in the disciplinary proceedings, family
health issues involving his parents, and stated that resti-
tution had been made to his former client in the personal
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injury case at issue. In its memorandum of decision, the
court specifically referenced some of these aggravating
and mitigating factors, including that the respondent
‘‘became overwhelmed by family health issues’’ as a
result of ‘‘the deteriorating health of his aging parents,’’
and that he had ‘‘an extensive recent disciplinary his-
tory’’ but demonstrated a ‘‘lack of any real sense of
responsibility . . . or the expression of any level of
contrition . . . .’’
The crux of the respondent’s claim of legal error
centers on an exchange he had with the court during
the presentment hearing. Prior to the respondent’s testi-
mony, the court made the following statement:
‘‘I think this inquiry is limited because of my ruling.
It is limited to the penalty. I certainly want to hear from
[the respondent], I want to hear how he feels about
things, but I’m not going to entertain a due process
attack. I have already ruled on that . . . .’’ The respon-
dent began his testimony by stating that ‘‘one of the
mitigating factors is the delay in the disciplinary pro-
ceeding. . . . [T]his delay . . . has resulted in severe
prejudice to me. . . . [It] denies me . . . due process
of law, and it warrants a dismissal.’’
Then, instead of testifying as to the effect of the delays,
the respondent provided exhaustive testimony detailing
the factual timeline of the disciplinary proceeding—
which included details about the changes to the
reviewing committee, the extensions or continuances
that were granted, and alleging that the grievance com-
mittee was ‘‘not following [its] own rules’’ or adhering
to timelines regarding hearings. The record shows that
the respondent’s monologue extended well over four
pages of the transcript before the court ultimately
stated, ‘‘[t]ime,’’ after which the following colloquy
occurred:
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‘‘The Court: I’ve made clear the parameters of the
hearing. I’m not considering this in my decision. I have
a question for you.
‘‘The Respondent: Yes, sir.
‘‘The Court: Did you mess up and how do you feel
about it?
‘‘The Respondent: Did I mess up?
‘‘The Court: Yep.
‘‘The Respondent: I would say, under the facts, no,
I didn’t mess up . . . .’’
Thereafter, the respondent testified more directly
about the effect of the delayed proceedings, stating that
he had been required to participate in multiple hearings,
file motions, and incur additional costs as a result of the
delays. The record further reveals that the respondent
provided what amounted to an additional six pages of
transcribed testimony before ultimately concluding by
stating, ‘‘that’s all I could really say, Your Honor.’’
The respondent construes the court’s statements—‘‘I
think this inquiry is limited because of my ruling,’’ and,
‘‘I’m not considering this in my decision’’—to be an
express refusal to consider the delay as a mitigating
factor when meting out discipline that was informed
by an incorrect conclusion of law that it was precluded
from doing so. After a close review of the record, how-
ever, it is clear that the court interrupted and redirected
the respondent because he was attempting to make the
very due process attack the court expressly had warned
it would not entertain. Further, the record reflects that,
after the court’s interruption and redirection, the
respondent provided what amounted to an additional
six pages of testimony regarding mitigating factors
before concluding of his own accord.
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Given this context, the respondent’s assertion that
the court improperly refused to consider the delay as
a mitigating factor, as distinct from an improper reasser-
tion of his due process claim, is not tenable. Evidence
in the record suggests that the court provided the
respondent ample time to testify as to the delay being
a mitigating factor, heard this testimony, and only inter-
rupted after he provided an extensive recitation of the
timeline of the underlying disciplinary proceedings. The
court was free to credit or reject this testimony as well
as to exercise its discretion in considering evidence that
might be irrelevant or cumulative. See Disciplinary
Counsel v. Serafinowicz, supra, 160 Conn. App. 101.
Further, ‘‘there is no requirement that the court set
forth its express consideration of [specific] evidence in
its memorandum of decision’’; id.; thus, the absence of
discussion of the delay as a mitigating factor in the
court’s decision is of no consequence. On the basis of
our plenary review of the record before us, we cannot
conclude that the trial court committed legal error in
its determination of the appropriate discipline. Accord-
ingly, the respondent’s first argument fails.
B
The respondent’s second and final argument is that,
under the circumstances of this case, the ninety day
suspension constituted an abuse of discretion. Specifi-
cally, the respondent argues that a ninety day suspen-
sion was excessive given that disciplinary counsel
asked for only thirty days and that the discipline
imposed is out of proportion to the offense committed
in light of other cases that involved more egregious
conduct. We disagree.
When a court is tasked with imposing discipline pur-
suant to Practice Book § 2-47 (d) (1), it must determine
‘‘the appropriate action to take as a result of the nature
of the misconduct in the instant case and the cumulative
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discipline issued concerning the respondent within
such five year period.’’ (Emphasis added.) As a result,
the appropriate action is not fashioned solely in
response to the nature of the misconduct in the present
case, as it is under § 2-47 (a) but, rather, includes consid-
eration of prior disciplinary measures imposed over the
five year lookback period. The court has discretion to
view the totality of the circumstances when determining
the appropriate discipline. Further, under the abuse
of discretion standard of review, ‘‘[e]very reasonable
presumption should be given in favor of the correctness
of the court’s ruling.’’ (Internal quotation marks omit-
ted.) Statewide Grievance Committee v. Spirer, 247
Conn. 762, 781, 725 A.2d 948 (1999). ‘‘Absent a showing
that the trial court has acted arbitrarily, we defer to
the trial court’s determination of the appropriate disci-
pline.’’ Disciplinary Counsel v. Serafinowicz, supra,
160 Conn. App. 102.
Here, as previously stated, the record reveals that
the court heard evidence regarding relevant aggravating
and mitigating factors. During the presentment hearing,
the court asked both parties questions regarding those
factors and provided ample time for their responses.
In its memorandum of decision, the court made specific
reference to several of the aggravating and mitigating
factors, including the respondent’s inability to meet his
obligations due to becoming ‘‘overwhelmed by family
health issues’’ relating to the ‘‘deteriorating health of
his aging parents,’’ the respondent’s ‘‘extensive recent
disciplinary history,’’ his ‘‘refus[al] to communicate and/
or cooperate with . . . a former client, a prospective
client, or the grievance authorities’’ and ‘‘the extremely
limited extent he was willing to recognize these failures
. . . .’’ Ultimately, the court determined that, ‘‘based
on the circumstances, particularly the respondent’s lack
of any real sense of responsibility for the behavior at
issue or the expression of any level of contrition, the
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court is not convinced that any level of disciplinary
action will serve to guarantee that these issues will not
arise again.’’
The respondent has not met his burden of demonstra-
ting that the court acted arbitrarily by ordering a ninety
day suspension. On the basis of the record before us,
we cannot conclude that the discipline imposed was a
clear abuse of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.