Office of Chief Disciplinary Counsel v. Miller

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     OFFICE OF CHIEF DISCIPLINARY COUNSEL
          v. JOSEPHINE SMALLS MILLER
                   (SC 20390)
                  Robinson, C. J., and Palmer, McDonald,
                        Kahn and Vertefeuille, Js.

                                   Syllabus

The plaintiff, the Office of Chief Disciplinary Counsel, filed a presentment
    alleging numerous incidents of misconduct by the defendant attorney,
    including violations of certain provisions of the Rules of Professional
    Conduct. The defendant raised two affirmative defenses, claiming that
    the recommendations of the chief disciplinary counsel and the decisions
    of the Statewide Grievance Committee concerning her alleged miscon-
    duct violated her constitutional rights because they were based on
    racially discriminatory and retaliatory reasons. The trial court rendered
    judgment suspending the defendant from the practice of law for one
    year, from which the defendant appealed. On appeal, the defendant
    claimed that the trial court’s denial of her motion for articulation and
    the Appellate Court’s refusal to order an articulation violated her due
    process rights, and that the trial court incorrectly concluded that she
    engaged in misconduct sufficient to warrant discipline and that her
    claims of racial discrimination and retaliation were not properly raised
    in the presentment hearing. Held:
1. The defendant’s due process rights were not violated as a result of the
    trial court’s denial of her motion for articulation or the Appellate Court’s
    refusal to order an articulation; the trial court’s memorandum of decision
    comprehensively set forth the factual and legal bases for the court’s
    conclusions, and there was no ambiguity or deficiency in the memoran-
    dum of decision that would require articulation or prevent this court
    from reviewing the defendant’s claims on appeal.
2. This court concluded, on the basis of its examination of the record
    and briefs, and its consideration of the parties’ arguments, that the
    defendant’s remaining claims, namely, that the trial court incorrectly
    concluded that she engaged in misconduct and that her claims of racial
    discrimination and retaliation were not properly raised in the present-
    ment hearing, were resolved properly in the trial court’s thorough and
    well reasoned memorandum of decision, which this court adopted as
    a proper statement of the applicable law concerning those issues.
          Argued January 23—officially released April 27, 2020*

                             Procedural History

   Presentment by the plaintiff for alleged professional
misconduct of the defendant, brought to the Superior
Court in the judicial district of Danbury and tried to the
court, Shaban, J.; judgment suspending the defendant
from the practice of law for one year, from which the
defendant appealed. Affirmed.
  Josephine Smalls Miller, self-represented, the appel-
lant (defendant).
  Brian B. Staines, chief disciplinary counsel, for the
appellee (plaintiff).
                          Opinion

   PER CURIAM. In connection with the presentment
filed by the plaintiff, the Office of Chief Disciplinary
Counsel, alleging misconduct by the defendant attor-
ney, Josephine Smalls Miller, the defendant appeals
from the judgment of the trial court suspending her from
the practice of law for one year for violating numerous
provisions in the Rules of Professional Conduct. Fol-
lowing the trial court’s judgment, the defendant filed a
motion for articulation, which the trial court denied.
The defendant filed a motion for review with the Appel-
late Court, which was granted, but that court denied
any relief. On appeal, the defendant claims that (1)
the trial court’s refusal to articulate and the Appellate
Court’s refusal to order an articulation violate her due
process rights, (2) the trial court incorrectly concluded
that she engaged in misconduct sufficient to warrant
any discipline, including suspension from the practice
of law, and (3) the trial court incorrectly concluded
that her claims of racial discrimination and retaliation
were not properly raised in the presentment hearing.
   The trial court’s memorandum of decision sets forth
a comprehensive recitation of the facts, which we sum-
marize in relevant part. In March, 2018, the plaintiff
filed a four count amended presentment against the
defendant, alleging numerous incidents of misconduct.
Count one alleged that the defendant violated rules 1.15
(a) (5) and (c) and 8.1 (2) of the Rules of Professional
Conduct by depositing personal funds into her IOLTA1
account and, thereafter, failing to timely or completely
respond to the disciplinary counsel’s lawful demand for
information regarding the account. Count two alleged
that the defendant violated rules 1.3, 3.2, and 8.4 (4) of
the Rules of Professional Conduct by failing to appear
for scheduled court matters on multiple occasions,
which resulted in the dismissal of her clients’ actions
and claims. Count three alleged that the defendant vio-
lated rule 1.4 (a) (1), (2), (3), (4) and (5) and (b) of the
Rules of Professional Conduct by failing to adequately
communicate to her client certain limitations on her
ability to represent the client before the Appellate Court
given that the defendant was suspended from the prac-
tice of law before the Appellate Court at that time.
Finally, count four alleged that the defendant violated
rule 5.5 of the Rules of Professional Conduct when
she engaged in the unauthorized practice of law by
providing legal advice and drafting legal documents for
a client relative to an Appellate Court matter while the
defendant was suspended from practicing before that
court. In her answer, the defendant raised two affirma-
tive defenses, claiming that the recommendations of
the chief disciplinary counsel and the decisions of the
Statewide Grievance Committee were based on racially
discriminatory and retaliatory reasons, both in violation
of her constitutional rights.
  Following a three day hearing, the trial court issued
a comprehensive memorandum of decision. The court
granted the defendant’s motion to dismiss count three
insofar as it alleged violations of rule 1.4 (a) (1), (2),
(3) and (4) of the Rules of Professional Conduct because
the plaintiff conceded that it had not proven by clear
and convincing evidence that the defendant violated
those subdivisions. The court denied the defendant’s
motion as to the remaining allegations in count three
and rendered judgment in favor of the plaintiff, finding
by clear and convincing evidence that the defendant
had violated the Rules of Professional Conduct as set
forth in counts one through four and suspending the
defendant from the practice of law for a total effective
period of one year.2 The court concluded that the defen-
dant had failed to meet her burden of proof as to her
special defenses, which, as alleged, were legally insuffi-
cient because they merely recited legal conclusions.
The court also noted that the special defenses consti-
tuted an independent cause of action. The defendant
appealed from the judgment of the trial court to the
Appellate Court, and the appeal was transferred to this
court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
  The defendant’s first claim on appeal arises out of
the trial court’s denial of her motion for articulation.
Specifically, the defendant sought an articulation on
twenty-seven ‘‘points,’’ or issues, that she claimed were
not fully addressed in the trial court’s memorandum of
decision. After the trial court denied the motion, the
defendant filed a motion for review of the trial court’s
denial with the Appellate Court. As already noted, the
Appellate Court granted review but denied the
requested relief. On appeal, the defendant argues that
the trial court’s denial of her motion violated her due
process rights because she is left without the means to
provide a full and complete record for this court to
review. Neither party addresses the appropriate stan-
dard of review for this claim. Even reviewing the claim
de novo, however, we are not persuaded that the defen-
dant’s due process rights were violated.
   It is well settled that it ‘‘is the responsibility of the
appellant to provide an adequate record for review.’’
Practice Book § 61-10 (a). ‘‘The general purpose of [the
relevant] rules of practice . . . [requiring the appellant
to provide a sufficient record] is to ensure that there
is a trial court record that is adequate for an informed
appellate review of the various claims presented by the
parties.’’ (Internal quotation marks omitted.) State v.
Donald, 325 Conn. 346, 353–54, 157 A.3d 1134 (2017).
To ensure an adequate record, the appellant may move
for articulation pursuant to Practice Book § 66-5.
  On the basis of our review of the record and the
briefs, and our consideration of the arguments of the
parties, we conclude that the trial court’s memorandum
of decision comprehensively sets forth the factual and
legal bases for its conclusions. There was no ambiguity
or deficiency in the memorandum of decision that
would require the trial court’s articulation or prevent
our review of the defendant’s claims on appeal. See In
re Nevaeh W., 317 Conn. 723, 734, 120 A.3d 1177 (2015)
(‘‘[a]n articulation is appropriate where the trial court’s
decision contains some ambiguity or deficiency reason-
ably susceptible of clarification’’ (internal quotation
marks omitted)).
   Moreover, the defendant’s due process argument is
unpersuasive given that, to the extent that there is ambi-
guity in a trial court’s memorandum of decision, an
appellate court may order articulation to ensure an
adequate record for review. Practice Book § 61-10 (b)
provides in relevant part: ‘‘If the court determines that
articulation of the trial court decision is appropriate, it
may, pursuant to Section 60-5, order articulation by the
trial court within a specified time period. . . .’’ See also
In re Nevaeh W., supra, 317 Conn. 738. In the interest
of judicial economy and the proper presentation of the
issues on appeal, this court has repeatedly ordered the
trial court to articulate either the factual or legal basis
for its decision, and this court has relied on those articu-
lations to resolve the issues on appeal. See id. (citing
cases). Thus, even when the trial court refuses to articu-
late, this court is still empowered to order an articula-
tion if we determine it is necessary to perfect the record
for our review. As such, the denial of the defendant’s
motions for articulation and review does not constitute
a violation of her due process rights.
   With respect to the defendant’s remaining claims—
that the trial court incorrectly concluded both that she
engaged in misconduct and that her claims of racial
discrimination and retaliation were not properly raised
in the presentment hearing—on the basis of our exami-
nation of the record and the briefs, and our consider-
ation of the arguments of the parties, we are persuaded
that the judgment of the trial court should be affirmed.
The issues were resolved properly in the trial court’s
thorough and well reasoned memorandum of decision.
See Office of Chief Disciplinary Counsel v. Miller,
Superior Court, judicial district of Danbury, Docket No.
CV-XX-XXXXXXX-S (November 26, 2018) (reprinted at 335
Conn.      ,    A.3d     (2020)). Because that memoran-
dum of decision fully addresses the second and third
issues raised by the defendant in this appeal, we adopt it
as a proper statement of the applicable law concerning
those issues. It would serve no useful purpose for us
to repeat the discussion contained therein. See, e.g., In
re Application of Eberhart, 267 Conn. 667, 668, 841
A.2d 217 (2004).
   The judgment is affirmed.
   * April 27, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
   1
     ‘‘IOLTA stands for ‘interest on lawyers’ trust accounts.’ ’’ Disciplinary
Counsel v. Hickey, 328 Conn. 688, 692 n.2, 182 A.3d 1180 (2018).
  2
    Specifically, the court ordered the following suspensions to run concur-
rently: thirty days as to count one, six months as to count two, one year
as to count three, and one year as to count four.
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