An excerpt from today's Appellate Court of Connecticut decision in Ambrose v. Ambrose, written by Judge Alexandra Davis DiPentima and joined by Chief Judge William Bright and Judge Bethany Alvord:
The primary issue in this writ of error challenging the disbarment of an attorney is whether her due process rights were violated by the procedure used by the first defendant in error, Hon. Thomas G. Moukawsher. The plaintiff in error, Nickola J. Cunha, who is the former attorney for a party in the underlying dissolution action, challenges in this writ of error the order of Judge Moukawsher disbarring her from the practice of law. [Apparently such one-judge disbarment orders are generally authorized under Connecticut law, though my sense is that they are unauthorized or at least uncommon in many other states. -EV]
In 2019, the plaintiff, Christopher Ambrose, commenced a dissolution action against the defendant, Karen Ambrose, who was represented by Cunha. Trial in the dissolution action began in March, 2021. As explained by the second defendant in error, Hon. Gerard I. Adelman, judge trial referee, in the April 26, 2022 memorandum of decision dissolving the marriage and explaining the delay in doing so, "the defendant began to simply not appear for the trial and [Cunha] began to make derogatory comments about the court and its proceedings. Accordingly, the court referred the complaints to the Regional Family Trial Docket's presiding judge, [Moukawsher, J.], for a hearing."
At a November 22, 2021 hearing concerning the referred matters, Judge Moukawsher noted that there was no pending motion to disqualify to decide. After the defendant, through Cunha, filed a motion to disqualify Judge Adelman from the proceedings on the ground of bias, on December 1, 2021, a hearing was held on the motion to disqualify. At that hearing, Judge Moukawsher asked Cunha to indicate specific parts of the transcripts of the dissolution proceedings that explained her claims of bias.
Cunha stated that the record in its totality would show that Judge Adelman was biased against women who claim abuse, individuals with disabilities, and anyone not of the Jewish faith. In support of these claims, she provided only examples of Judge Adelman's rulings adverse to her client. Judge Moukawsher repeatedly requested that Cunha provide evidence to support her claims of bias rather than simply relying on the issuance of adverse rulings and stated at one point, "You're a lawyer. You know I need to have evidence. You can't just assert things." Judge Moukawsher further stated at one point that, "it can't be just simply you don't like his rulings …."
In a December 10, 2021 memorandum of decision (disqualification ruling), Judge Moukawsher denied the motion to disqualify, reasoning that the claims of bias were unsupported and noted that the motion was "entirely unsupported and frivolous. No reasonable person would question [Judge Adelman's] impartiality under these circumstances." Judge Moukawsher found that Cunha had "blatantly lied" and made "utterly empty claims."
Judge Moukawsher stated that, "[b]ased upon what has occurred on the record in connection with the latest motion to disqualify Judge Adelman, on January 10, 2022, at 10 a.m. the court will hold a hearing on whether to act against Attorney Cunha, and, if action is warranted, what action to take." Judge Moukawsher noted that the matter was of "the utmost seriousness" and advised Cunha to be represented by counsel at the hearing. Judge Moukawsher further stated that "[t]he clerk will send a copy of this ruling to the chief disciplinary counsel. The court would welcome participation by any appropriate disciplinary entity to appear as a friend of the court for the upcoming hearing."
At the start of the January 10, 2022 disciplinary hearing, Judge Moukawsher, stated: "As the record will reflect, the court denied the motion to disqualify Judge Adelman and made conclusions that Attorney Cunha had substantially misrepresented on matters of fact to the court. And so the conclusions, in terms of Attorney Cunha, what she said and did have already been made. And the purpose of this is to consider potential discipline for Attorney Cunha with respect to what the court has already concluded."
In response, Cunha, representing herself, stated that Judge Moukawsher's findings in the disqualification ruling regarding her conduct were clearly erroneous and noted that she found "these proceedings to be intentionally harassing and intimidation and an attempt by Your Honor solely to shut me down for the corruption that I have raised before this court." Cunha further stated that the disqualification ruling "is a joke, and it is pathetic, and you should be ashamed of yourself for subjecting myself to that type of rhetoric. Frankly, Judge, I am ashamed to even be sitting before you with the type of conduct that you engaged in. You have engaged in material misrepresentation; you have lied to the public. You have done so solely to put me in a poor light …."
Judge Moukawsher reminded Cunha that "what I am dealing with today are the misstatements and false claims that you made before me" and that he was giving her "the opportunity before I determine what action should be taken against you to tell me any reasons in support of why I shouldn't take any action to you, or against you, or that I should take some lesser action against you. And I was going to suggest that you might tell me some of your professional background, that might be a basis for it, that you might describe why you, in good faith, believed the things that you asserted. You could name the documents you examined, you could name the people you spoke with, you could explain the reliability of these things."
Cunha argued that Judge Moukawsher's findings in the disqualification ruling were clearly erroneous and questioned whether she would be allowed to engage in cross-examination of him as to those findings. Judge Moukawsher stated, "I am trying to give you a chance to be heard on what I have ordered. I have concluded, already from the record, from what you said to me in court, that you misrepresented to me material matters," and further explained that "[t]he question is what I'm going to do about it. I'm going to give you one more chance to address the various penalties I might impose before I'm concluding that you're not going to respond to your opportunity to be heard."
Cunha stated that Judge Moukawsher "should disqualify [himself] because [he] could not be the accuser, the trier of fact, the finder and the executioner," and suggested that Judge Moukawsher was "prejudiced in what it is that you have opined in this matter." Counsel for the plaintiff in the dissolution proceedings was given a chance to be heard over Cunha's objection. When Judge Moukawsher gave the disciplinary counsel an opportunity to be heard, Cunha objected, stating that he "seems to think nothing of to allow an attorney to speak on the record absent an appearance. We have due process in this country. What is so difficult for this court to comprehend? You are not the law maker." The court instructed Cunha to "stop," and Cunha responded, "I am frustrated, Judge, with your lack of acknowledgement of what your position is as a judge. You are not the legislature. There is something called the separations of power."
Judge Moukawsher asked Cunha to "stop speaking," at which point Cunha stated, "I will obey, Your Honor, would you like me to bow"; Judge Moukawsher responded that Cunha was "bounding criminal contempt of court" because she was "abusing the court" and "not providing any useful information." The disciplinary counsel addressed Judge Moukawsher, listing in detail the rule violations and misconduct the evidence supported for a sanction of disbarment.
Following that, Cunha stated that she never made a material misrepresentation to Judge Moukawsher and attempted to provide support for the claims of bias raised in the motion to disqualify. She urged Judge Moukawsher "to reconsider the findings" and reasoned that "they were entered by mistake." She further asked Judge Moukawsher "again to please reconsider" and listen to testimony of "March 31, 2021, April 1st, May 25th and 27th, June 2nd and 3rd, July 20th and, as Your Honor knows, October 20th and November 9th, all in 2021. I believe that those dates support, without a doubt, the claims that I've made and should be listened to before Your Honor were to consider anything else. I believe Your Honor, unfortunately, was put in a predicament, like myself, and you acted on responses that I gave in a theoretical broad scope, which I understand why you would, and I did retract that day and I believe you need to take that into consideration because it's very important. Because I acknowledge on that day that these proceedings needed to be reined back in and I needed to accept responsibility that I allowed them to go awry and it wasn't okay and I needed to refocus the court's attention, which is exactly what I did. So, I ask the court to please consider that." The court responded, "I will consider everything you just said, I've written it down carefully and I can assure you that I am no happier about being in this position than anybody else is too. It's a very unfortunate position for all of us to have to deal with."
On January 25, 2022, Judge Moukawsher issued a memorandum of decision disbarring Cunha from the practice of law on the basis that she violated rules 3.1, 3.2, 3.3, 3.5, 8.2, 8.4 (3) and 8.4 (4) of the Rules of Professional Conduct (disciplinary order). In so doing, Judge Moukawsher stated that "[d]isbarment is the appropriate penalty for conduct as egregious as Ms. Cunha's" and noted that her conduct "not only involved a fraud on the court, but a scurrilous assault on the integrity of a judge. The offense was aggravated by its context and by Ms. Cunha's behavior at the hearing on potential punishment" wherein "she mocked and disregarded the court's authority. She will not be given a chance to do it again." …
The court rejected Cuhna's due process claims (for more on that, read the full opinion) and state law claims. It also had this to say about Cunha's First Amendment arguments:
Cunha argues that her "speech should not have been subject to discipline as it did not pose an imminent and likely threat to the administration of judicial proceedings." Her argument is misplaced. That standard only applies to extrajudicial speech by a party to litigation; the speech at issue in the present case was made in the presence of the court by an attorney. Thus, the question of whether the content of Cunha's arguments subjected her to discipline is answered by the Rules of Professional Conduct.
Judge Moukawsher's conclusion that Cunha violated the Rules of Professional Conduct primarily was based on the finding that Cunha had lied and made misrepresentations during the hearing on the motion to disqualify. Cunha does not claim that those lies and misrepresentations constituted protected speech, nor does she specifically claim that any one of Judge Moukawsher's seven findings of violations of the Rules of Professional Conduct constituted a violation of her right to free speech.
Rather, she contends that the "court reasoned that lies and misrepresentations are not protected speech in the courtroom. It is certainly not being argued here that they should be. What is being argued is that the constitutional guarantees of free speech require greater consideration in sanctioning attorney conduct than were provided by the trial court." She argues that Judge Moukawsher should have permitted her "to refute [the] findings of misconduct. That is doubly important considering that the conduct at issue was speech. Such a lack of consideration could sanction or otherwise chill what may be controversial but meritorious arguments."
Cunha also argues that Judge Moukawsher "did not narrowly tailor [his] sanctions in consideration of the conduct being attorney speech. The trial court could have imposed a fine, reprimand or suspension or made a referral to the grievance committee. Instead, it chose the most severe penalty to an attorney. It disbarred Ms. Cunha from the practice of law. It did so without regard to the potential chilling effects on advocacy that a swift disbarment for an argument could have on the legal profession." What we glean from this argument as stated is that Judge Moukawsher violated Cunha's right to free speech by (1) sanctioning her for misconduct without first conducting a hearing regarding whether misconduct had occurred and (2) not giving her a less severe sanction because of free speech concerns.
Neither of these arguments merit extensive discussion. We have addressed the first argument in our analysis of Cunha's due process claim in part I B of this opinion in which we concluded that she was afforded a sufficient opportunity to be heard. As to the second argument, Cunha has directed us to no law, nor are we aware of any, providing either that she is entitled to additional process because her misconduct involved speech or that a different standard than that described in part IV of this opinion for the imposition of sanctions for attorney misconduct should apply when the misconduct involves speech. For the foregoing reasons, Cunha cannot prevail on the arguments she presents to this court implicating the first amendment….
The court had this to say about Cunha's arguments that there wasn't clear and convincing evidence supporting the findings that she had violated the ethical rules:
Judge Moukawsher reasoned that Cunha had violated rules 3.1, 3.3 and 8.4 (3) of the Rules of Professional Conduct because she "intentionally and persistently misrepresented the facts to the court" in order "to continue to pursue a false narrative about sexual abuse conclusions …." See Rules of Professional Conduct 3.1 (lawyer shall not assert issue unless there exists basis in law and fact that is not frivolous); Rules of Professional Conduct 3.3 (lawyer shall not knowingly make false statement of law or fact to tribunal); Rules of Professional Conduct 8.4 (3) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation).
Judge Moukawsher stated that Cunha also claimed at the disqualification hearing that department records contained in exhibit 71 would reveal abuse by the plaintiff of his children, despite the fact that exhibit 71 reveals that the department stated that he did not pose any risk to the health, safety or well-being of the children. Cunha's argument that Judge Moukawsher's findings were not supported in the record by clear and convincing evidence because her inaccurate representations were not made intentionally but rather were a result of poorly constructed arguments is belied by the transcript of the hearing on the motion to disqualify during which Judge Moukawsher admonished Cunha not to say things for which she could not provide support and gave her opportunities to withdraw or temper her statements.
Concerning rule 3.2 of the Rules of Professional Conduct, which provides that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client, Judge Moukawsher found that Cunha's "attack on Judge Adelman" and misrepresentations regarding exhibit 71 were "part of a tactic of stalling and diverting" the case. Cunha contends that there was no clear and convincing evidence that she made her filings to delay the case rather than in zealous strategic representation of her client. To the contrary, instances cited in the disciplinary order, and apparent in the court file, provide clear and convincing evidence that Cunha had failed to make reasonable efforts to expedite litigation consistent with the interests of her own client.
Regarding rule 8.2 of the Rules of Professional Conduct, which prohibits lawyers from making a statement concerning the integrity of a judge that either the lawyer knows to be false or makes with reckless disregard as to its truth or falsity, Cunha argues that there was not clear and convincing evidence that she knowingly lied during court proceedings instead of "just making a poor, unprepared argument." Even if we were to assume, without deciding, that there was not clear and convincing evidence that Cunha had made the statements intentionally, Judge Moukawsher also found that Cunha's arguments in furtherance of her allegations of judicial bias had the corrupt motive "to cloud the truth for the perceived benefit of her client," or in other words, she acted with reckless disregard for the truth. Cunha makes no argument that the record fails to establish that she acted with reckless disregard. See Rules of Professional Conduct § 8.2 (a) ("[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office").
Concerning rule 3.5 of the Rules of Professional Conduct, which prohibits lawyers from engaging in conduct intended to disrupt a tribunal, Cunha argues that the record demonstrates that she argued aggressively but does not show that she used profane language or interrupted the court proceedings. The broad language of the rule prohibits "conduct intended to disrupt a tribunal" and does not limit such conduct either to the use of profanity or to the interruption of proceedings. Rules of Professional Conduct § 3.5 (4). The transcript from the hearing on the motion to disqualify supports the findings that Cunha disrupted proceedings and prejudiced the system of justice by "hurling baseless accusations," harassing parties, and using the system of justice to punish a party opponent and legal professionals. Judge Moukawsher's findings are rooted in (1) the nature of Cunha's claims of bias against Judge Adelman, which required a referral to Judge Moukawsher, and (2) her arguments during the hearing on the motion to disqualify, which included unsupported claims of racketeering between Judge Adelman and legal professionals and factually incorrect claims that exhibit 71 would show certain inappropriate behavior on the part of the plaintiff in the dissolution action. The record provides clear and convincing evidence that Cunha had disrupted the dissolution proceedings by her arguments concerning the motion to disqualify.
Regarding rule 8.4 (4) of the Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice, Judge Moukawsher used the same reasoning as he used for finding a violation of rule 3.5 of the Rules of Professional Conduct and stated that Cunha disrupted proceedings and prejudiced the system of justice by using the judicial system to punish a party opponent and legal professionals. Cunha argues that she filed her motions in zealous and strategic advocacy of her client and not to stall the dissolution proceedings. Although this argument does not directly address the basis for the finding of a violation of rule 8.4 (4), as with rule 3.5, there is clear and convincing evidence in the record of the hearing on the motion to disqualify that she prejudiced the system of justice by using it to punish a party opponent and legal professionals….
Finally, the court concluded that disbarment wasn't an excessive penalty:
The disciplinary order states that "[d]isbarment is the appropriate penalty for conduct as egregious as [Cunha's]." It further states that there were aggravating factors, including that Cunha "has been disrupting this case for a long time with bogus motions, duplicate proceedings, baseless attacks on the lawyers and judges and experts. She didn't just lose her temper one day and do things she has regretted. She has systematically tried to use the justice system against itself" in order to frustrate and discredit it. (Footnote omitted.) Judge Moukawsher additionally noted that, during the disciplinary hearing, Cunha, an experienced lawyer, "berated the court, mocked it, and mocked the proceedings." Judge Moukawsher noted that "[t]hings might be different if there were substantial mitigating factors here. But there aren't. There is only [that Cunha] has not been disciplined before, but that is by no means enough to offset the seriousness of her wrongdoing." … [T]he disciplinary order demonstrates a careful consideration of the nature of the misconduct in light of aggravating and mitigating circumstances. Accordingly, we defer to Judge Moukawsher's determination of the appropriate sanction.
Robert J. Deichert argued in favor of the decision below.
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