Daniels v. Alander

818 A.2d 106, 75 Conn. App. 864
CourtConnecticut Appellate Court
DecidedApril 1, 2003
DocketAC 22542
StatusPublished
Cited by15 cases

This text of 818 A.2d 106 (Daniels v. Alander) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniels v. Alander, 818 A.2d 106, 75 Conn. App. 864 (Colo. Ct. App. 2003).

Opinions

Opinion

FOTI, J.

This case is before us on a writ of error brought by the plaintiffs in error, Douglas R. Daniels and Dennis Driscoll, both of whom are members of the bar of this state. The plaintiffs claim that the defendant in error,1 the Honorable Jon M. Alander, improperly [866]*866reprimanded them for having violated subsections (a) (1) and (d) of rule 3.3 of the Rules of Professional Conduct during a proceeding before him in the Superior Court. On appeal, the plaintiffs claim that (1) the evidence did not support the trial court’s factual findings and that its legal conclusions were improper, and (2) the court violated their due process rights by failing to give them adequate notice of the purpose of its misconduct hearing. We find no error.

The record discloses the following facts and procedural history. On January 16, 2001, the plaintiffs, both of whom were practicing law in Daniels’ law firm, filed an ex parte application for temporary custody and relief from abuse on behalf of Ines Montalvo. Judge Alander conducted an ex parte hearing on the matter on that same date. The application sought an order awarding Montalvo temporary custody of her two minor children as well as an order restraining the children’s father, Felipe Nieves, from threatening or assaulting the children or entering Montalvo’s Connecticut residence. The application alleged that the children had been abused physically by Nieves and that they feared returning to his care in New Jersey. See Montalvo v. Nieves, Superior Court, judicial district of New Haven, Docket No. 447041 (April 9, 2001) (29 Conn. L. Rptr. 352).

The application also alleged that an action was pending in the New Jersey Superior Court to resolve outstanding issues of custody and visitation. During the hearing on Montalvo’s application, Daniels indicated that Montalvo had retained legal representation in New Jersey, that a full trial on the issue of the children’s custody had taken place in the New Jersey Superior Court and that Montalvo was awaiting the decision in that matter. Nonetheless, Daniels argued on behalf of Montalvo that apart from the pending New Jersey mat[867]*867ter, judicial intervention was warranted to protect the children from an immediate threat from Nieves.2

At the hearing, the court inquired directly of Montalvo and Daniels as to why it should issue the order. Central to the court’s line of inquiry was why Montalvo did not file her application before the Superior Court in New Jersey, which already had conducted a hearing on the issue of the children’s custody. Montalvo testified that she did not want to file the emergency application in New Jersey because she feared that it would endanger the immediate physical safety of the children. The court inquired directly of Daniels as to why he chose to pursue the application in Connecticut rather than to pursue it before the New Jersey trial judge who had presided over the custody trial, the Honorable John A. Peterson, Jr. In response to the court’s questioning, Daniels represented that his colleague, Driscoll, “spoke to [Montalvo’s] counsel in New Jersey and it was her opinion that we should not do it in New Jersey for a number of reasons, none of which I think are flattering to the judiciary there, but we were relying on that.”

Judge Alander recessed the hearing on the application and spoke via telephone with Judge Peterson in New Jersey. Judge Peterson agreed to conduct a hearing on Montalvo’s application for temporary emergency custody on January 19, 2001, and Judge Alander issued a temporary emergency order awarding Montalvo custody of the children until that time. Judge Alander noted that both he and Judge Peterson believed that New Jersey was the appropriate forum in which to resolve the matter.

After the hearing, Judge Alander received a letter from Veronica Davis, the attorney who was represent[868]*868ing Montalvo in the custody proceeding in New Jersey. Davis informed the court that she had reviewed the transcript of proceedings of January 16, 2001, and that some of the representations made by Daniels during the hearing were false. By means of a letter dated February 5, 2001, Judge Alander informed Davis, as well as the plaintiffs, that he wanted to conduct a hearing in regard to Davis’ allegations and that such hearing would enable him to determine if further action was warranted.

On March 16, 2001, the court conducted a hearing related to Davis’ allegations. Davis testified that Daniels had misrepresented her opinion about bringing the application before Judge Peterson in New Jersey. The court also heard testimonial evidence from Daniels, Driscoll and Montalvo. On April 9,2001, the court issued a memorandum of decision in which it concluded that the plaintiffs had violated subsections (a) (l)3 and (d)4 of rule 3.3 of the Rules of Professional Conduct. The court reprimanded the plaintiffs for their conduct. The plaintiffs thereafter filed a motion to reargue, which the court denied. The plaintiffs, pursuant to Practice Book § 72-1 et seq., thereafter filed the present writ. Our Supreme Court, pursuant to Practice Book § 65-1, transferred the appeal to this court.

I

The plaintiffs first challenge the court’s factual and legal determinations. They claim that (1) the evidence did not support the court’s findings of fact and (2) as [869]*869a matter of law, the court’s factual findings did not support its legal conclusions. We disagree.

As a preliminary matter, we set forth our standard of review. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . Although we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . we will not uphold a factual determination if we are left with the definite and firm conviction that a mistake has been made. . . . Additionally, because the applicable standard of proof for determining whether an attorney has violated the Rules of Professional Conduct is clear and convincing evidence . . . we must consider whether the trial court’s decision was based on clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 322-23, 796 A.2d 516 (2002).

For organizational purposes, we will review separately the court’s determinations as to the plaintiff Daniels and the plaintiff Driscoll.

A

Plaintiff Daniels 1

Violation of Rule 3.3 (a) (1)

In its memorandum of decision, the court cited a statement that Daniels made to the court during the January 16, 2001 ex parte hearing. During the hearing, [870]*870the court asked Daniels why he was bringing the application in Connecticut rather than in New Jersey. Daniels stated: “Mr.

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Bluebook (online)
818 A.2d 106, 75 Conn. App. 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniels-v-alander-connappct-2003.