Sufficiency of Clear and Convincing Evidence in a Disciplinary Proceeding
Joseph J. Notopoulos v. Statewide Grievance Committee, 857 A.2d 424 (Conn.App. Oct 05, 2004). This disciplinary case has its origin in a probate proceeding. Notopoulos filed an application with the Probate Court seeking to be appointed the conservator of his mother's estate and person. Probate Judge Berman appointed him conservator of his mother's estate, Denny Fuller as conservator of her person and Carolyn Levine to investigate her care and financial assets. Notopoulos had many disagreements with Judge Berman, including a disagreement about Levine and Fuller’s fees and a dispute regarding a ‘do not resuscitate’ order issued to Fuller. After his mother’s death, Notopoulos and his brother were appointed coexecutors of her estate. Thereafter, Notopoulos claimed that he did not receive timely notice of the probate decree closing his mother's estate. He wrote a letter to a member of the court staff, and sent copies of the letter to his brother and his mother's physician. The letter stated in relevant part:
Having come face-to-face during conservator proceedings with the rampant financial conflicts of interest that presently afflict the West Hartford Probate Court, I found it prudent to completely distribute the assets of this estate at the earliest practicable moment…Consequently, the assets of this estate have long ago been placed far beyond the venal and avaricious reach of the House of Berman-Levine, where those assets shall forever so remain.... Representative but hardly all-inclusive of these abuses is his reprehensible extortion from [Notopoulos], without legal authority, of money for his crony Mrs. Levine on January 25, 1999 resorting to threats to impose upon the undersigned a substantial conservator's cash bond or to dispatch a psychiatrist to our residence to examine my mother and bill the estate…Because Mr. Berman has become not merely an embarrassment to this community but a demonstrated financial predator of its incapacitated and often dying elderly whose interests he is charged with the protection, in my capacity of a registered West Hartford elector, I am herewith demanding that he submit his resignation immediately rather than wait until compelled to do so next year by his advanced age that has seemingly impaired his ability to conduct his office with the integrity and competence that this community, including its physicians, may rightfully expect and demand.
The staffer forwarded the letter to Judge Berman, who then filed a complaint with the Statewide Grievance Committee (“SGC”). Eventually, the matter was referred to a grievance panel, which found probable cause that Notopoulos violated Connecticut ethics provisions. At a reviewing committee hearing, Notopoulos testified and presented evidence, but Judge Berman did not attend, and the SGC did not present any additional evidence or call any witnesses. The reviewing committee issued a decision reprimanding him. Before the Appellate Court, Notopoulos argued that the SGC did not submit any evidence at the hearing and, therefore, it did not meet its burden of proving by clear and convincing evidence that he violated any ethics rule. In addition, he claimed that discipline was unwarranted because he was not acting in his professional capacity as an attorney when he wrote the letter. The Court rejected both arguments. As to the latter argument, the Court noted:
We further note that even if we assume, arguendo, that [the relevant ethics rule] applies only to attorneys acting in their professional capacity, it appears that the plaintiff was acting in such a capacity when he wrote the letter. Specifically, we note that the letter at issue was written on the plaintiff's professional letterhead, which contained his name, address, phone number and, in capital letters, "ATTORNEY AT LAW."
As to the former argument, the Court held that, while Notopoulos was the only party to present evidence or to testify at the hearing, his was not the only evidence in the record. Specifically, he failed to note that the committee already had in the record specific evidence to support its conclusions, including the grievance complaint with the plaintiff's answer, the plaintiff's letter to Judge Berman, Judge Berman's letter to the committee and documents from the probate proceedings upon which the plaintiff based the allegations contained in his letter. Furthermore, the committee, as a fact finder, was free to weigh Notopoulos’ evidence and to determine the credibility of his testimony; it was not required to accept Notopoulos’ evidence as the truth. Therefore, a decision of reprimand was affirmed. There was a written dissent, with one justice stating that Notopoulos’ testimony concerning the judge's conduct was sufficient to shift the burden of evidence back to the SGC. Once that testimony was offered, the SGC, to meet its burden of persuasion by clear and convincing evidence, could not rely solely upon Notopoulos’ assertions in his letter and the judge's brief complaint.
The full text of the opinion is located at: