Professional Documents
Culture Documents
CT Supreme Court Refuses To Consider Amicus Brief Re Discriminatory Discipline of Black Lawyers.
CT Supreme Court Refuses To Consider Amicus Brief Re Discriminatory Discipline of Black Lawyers.
CT Supreme Court Refuses To Consider Amicus Brief Re Discriminatory Discipline of Black Lawyers.
DISCIPLINARY COUNSEL
v.
JOSEPH ELDER
________
________
JOSEPHINE S MILLER
152 Deer Hill Avenue
Suite 302
Danbury, CT 06810
(203) 512-2795
Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES.2
Summary of Argument3
ARGUMENT
CONCLUSION10
2
TABLE OF AUTHORITIES
Cases
Other Authorities
Douglas, William O.,"The Black Silence of Fear" N.Y.Times January 13, 1952.7
Goldstein, Tom, Bar Group Withdraws Charges Against Kunstler, N.Y. TIMES,
Feb. 21, 1974, at 34..5
Graham, Fred P. "Burger Assails Unruly Lawyers", N.Y. TIMES, May 19, 19715
Josephine Smalls Miller, has been a practicing attorney for thirty-six years; a
member of the Connecticut Bar since 2004, a past member of the Michigan Bar, the
Georgia Bar, the U. S. District Court for the Northern District of Georgia, the District of
Connecticut, the Second Circuit Court of Appeals, the Fourth Circuit Court of Appeals and
Amici has been dedicated to identifying and rectifying civil rights abuses and other
serious miscarriages of justice. Most recently, she has sought to bring attention to the
paucity of attorneys who have the inclination or political will to speak truth to power in this
important area of attorney discipline, any opportunity to draw the attention of the
Connecticut courts to its obligation to ensure a just and fair civil and criminal justice
Summary of Argument
In cases like this one, where the judicial and bar enforcement authorities reach
deep back into the past in order to find a basis for attorney discipline, and to apply the
with far more egregious allegations go unscathed, the court must at least examine the
possibility that the discipline has been imposed for a political reason that is not tethered
The historical pattern of attorney discipline establishes that lawyers who are
ethnically alien, who represent unpopular causes or unpopular persons or who merely fail
the test of "homogeneous thought" are often disciplined for meritless reasons. Here, the
4
trial courts suspension of Attorney Elder for alleged misconduct occurring more than ten
years prior to the grievance complaint more likely than not has been affected by the
inevitable push of the Connecticut courts and bar enforcement officials to maintain the
ARGUMENT
represent unpopular causes or unpopular persons, who are not politically connected, or
those who bore ethnic identities that the organized bar found threatening to its
Moliterno, Id.
discipline because their collective fault in the eyes of the organized, traditional strength-
center of the bar was the disruption to the legal, social, and cultural status quo that their
This fierce criticism of certain lawyers has in the past come from the highest levels
of judicial, government, and bar leadership. Ronald Reagan was openly hostile to legal
services lawyers. Chief Justice Warren Burger gave substantial blame for the impending
downfall of the profession to lawyers in political trials and encouraged the legal profession
5
to apply "rigorous powers of discipline" to the misbehaving lawyers by using either the
judicial or bar enforcement systems". To fail to use such discipline he warned, would
allow "the jungle [to] clos[e] in on us.". Fred P. Graham, "Burger Assails Unruly Lawyers",
N.Y. TIMES, May 19, 1971, (quoting and excerpting from speech).
In the case of noted attorney William Kunstler, the Association of the Bar of the
City of New York so eagerly awaited the opportunity to discipline him that it began
proceedings before the Chicago Seven trial had ended, violating its own rules of
procedure. Tom Goldstein, Bar Group Withdraws Charges Against Kunstler, N.Y. Times,
Feb. 21, 1974, at 34. In the instant case, disciplinary authorities have violated the plain
meaning of its own rule regarding the statute of limitations for attorney grievances in its
deigned to represent an alleged Communist Party member, Justice Black wrote, "[T]his
summary blasting of legal careers ... constitutes an overhanging menace to the security
of every courtroom advocate in America. The menace is most ominous for lawyers who
Elder has had an unblemished thirty year record as a lawyer, and he sat as a member of
History shows that in 1879 shortly after the Supreme Court had upheld a
prohibition on women's membership in the state bar, Connecticut began a trend toward
ability of certain groups to earn a livelihood in their chosen profession. Sanford Levinson,
National Loyalty, Communalism, and the Professional Identity of Lawyers, 7 Yale J.L. &
Human 49, 64 (1995). The singular efforts to cleanse the bar of certain undesirable
attorneys has even resulted in collusion by members of the state bar. See for example
Chicago Bar Ass'n v. McCallum, 173 N.E. 827 (Ill. 1930) (railroad lawyers hired agent to
pose as worker, fake an accident and serious injuries, retain target personal injury
lawyers, and defraud court in effort to entrap target personal injury lawyers into engaging
This court must not revert to the atavistic requirement of "homogeneous thinking"
among members of the legal profession. To do so will undermine the purported goal of
diversity. As part of its strategic plan, the Judicial Branch has stated that it " will provide
a diverse and culturally competent environment that is sensitive to the values and
responsive to the needs of all who interact with it." Advisory Committee on Cultural
Competency, Annual Report to Chief Justice Chase T. Rogers, July 2013. If the Judicial
Branch is to do more than give lip service to the matter of diversity, it cannot treat its
II. Although Bar Discipline Matters are Sui Generis, such Uniqueness Should
Not Be a Means for Silencing Lawyers for Political Reasons
More than fifty years ago the United States Supreme Court said that a State may
rights. [Emphasis added] See Schware v. Board of Bar Examiners, 353 U. S. 232 (1957);
Konigsberg v. State Bar, 353 U. S. 252 (1957). Cf. In re Sawyer, 360 U. S. 622 (1959). In
we can never determine the number of lawyers silenced and the number of clients who
"black silence of fear." William O. Douglas, "The Black Silence of Fear" N.Y.Times
January 13, 1952 (magazine) at 7, 37-38. When lawyers are disciplined for the purpose
"Some politically motivated bar complaints or bar actions may have technical merit,
at least at the time of their initiation. But even the meritorious ones would not be
filed in the usual course of things without the impetus of some political or other
untoward motivation. In the absence of merit, if a bar complaint bears other
marks of political action (other interests of the complaining party, context
of the complaint), a political motive for the action is highly likely. When the bar
complaint is demonstrably meritless, it fits a historical pattern of politically
motivated discipline." Moliterno, Id.
In the case at bar Disciplinary Counsel has established no reason why the ten year
old grievance was not dismissed as untimely. There was nothing extraordinary about the
allegations that warranted a tolling of the statute, the alleged victim was an attorney who
surely knew not to sit on his rights, and indeed the alleged victim's grievance complaint
was not even the matter upon which probable cause was found. Moreover, the context
of the suspension where the trial court refused to stay the one year period pending appeal
was uncharacteristically harsh when compared with other attorney conduct that was far
more egregious. 1 "Bar discipline machinery has moved slowly, if not at all against the
1
See for example the seven year inaction by the Disciplinary Counsel before it sought
any action to discipline Attorney Kristen Peters-Hamlin after she was suspended for
seven years by the New York State Bar, the U.S. District Court for the Southern District
of New York, and the District of Connecticut. [FST-CV15-6024364; In Re Peters-Hamlin
3:08gp00018(JCH)] See also the refusal of Disciplinary Counsel to seek any meaningful
8
politically well-connected." Moliterno, Id. There is no known case, other than the instant
one where the rule of 2-32 (a)(2)(E) has been applied to a lawyer so far past the six year
statute of limitations and in the absence of some clear and continuing violation. See also
Miller v. Connecticut Appellate Court, (SC19346) where no other reported case could be
found where a Connecticut attorney was summoned before an en banc session of the
Appellate Court for disciplinary purposes (i.e. alleged procedural rules violations). The
inherent power of the court to act sui generis is not as completely unfettered as found by
the trial court and Disciplinary Counsel. Such unfettered discretion will result in an unjust
By its application of Practice Book section 2-32 (a)(2)(E) to attorney conduct that
occurred more than ten years before the grievance complaint and ignoring the long-held
rule of a six year statute of limitations, the trial court has introduced an objectionable
Button, 371 U. S. 415 (1963). Cf. In Re Primus, 435 U. S. 412 (1978). A lawyer's
property interest in his or her legal profession, still for some a noble profession, must be
accorded great protection. In his book Brennan and Democracy (2005), Frank
discipline of Attorneys Michael Koskoff and Kathleen Nastri in the matter of DAttillo v.
Koskoff, Koskoff & Bieder; NNH-CV14-6051836] See also Christian B. Shelton of
Branford the lawyer who drafted a "fictitious" consulting contract that became evidence in
former Governor Rowland's 2014 trial received an official reprimand but was permitted to
keep his license to practice law.
9
Michelman suggested that the reasoning in Button had remarkable implications directly
attacking the idea that " law stands neutrally and impartially above and apart from
to the bar of resident aliens, the U. S. Supreme Court said "[i]t requires no argument to
show that the right to work for a living in the common occupations of the community is of
the very essence of the personal freedom and opportunity it was the purpose of the
While the NAACP v. Button case relied upon the First Amendment for its majority
holding, there is no question that the action of Virginia's legislative and judicial branches
was to attack African-American lawyers or those who espoused racial equality through
litigation. Attorney Elder has raised the issue of racial disparity in treatment. Notably
Disciplinary Counsel has chosen not to address this issue.2 This court must have a
One commentator has said that "politically motivated bar complaints" those that
would not be lodged but for a political motivation are not pursued to vindicate the lawyer
ethics issues raised by the complaints, but rather to achieve some political goal or effect.
Such complaints often play a part in a larger drama. and usually such bar actions lack
[genuine] merit." Moliterno, Id. When genuine merit is lacking, such as in the case at
2
Similarly in Miller v. Connecticut Appellate Court, AC19436, the issue of racial disparity
raised by Plaintiff in error was acknowledged by the Court but then ignored.
10
discarded, and the public confidence in the system of justice is undermined. How many
more careers, indeed how many more lives, must be destroyed before the courts finally
IV. Conclusion
For the foregoing reasons, it is urged that this Court grant the appeal of Attorney
Elder and reverse the decision of the trial court to suspend his license to practice law.
Furthermore, the court in its supervisory role should initiate an investigatory commission
to determine the extent to which African-American lawyers in Connecticut are treated with
disparity in their appearances before the courts and/or the handling of their cases.
Respectfully submitted,
Josephine S. Miller
152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
July 4, 2016