STATEWIDE GRIEVANCE COMMITTEE

 

Gary Traystman, Complainant vs. Denise Ansell, Respondent

 

Grievance Complaint #01-0224

 

DECISION

 

Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 95 Washington Street, Hartford, Connecticut on January 10, 2002.  The hearing addressed the record of the complaint filed on September 10, 2001, and the probable cause determination filed by the New London Judicial District Grievance Panel on November 5, 2001, finding that there existed probable cause that the Respondent violated Rules 3.1, 3.3(a)(1) and (4), 3.4(5) and 8.4(1) and (3) of the Rules of Professional Conduct.

 

Notice of the hearing was mailed to the Complainant and to the Respondent on November 27, 2001. The Complainant appeared at the hearing and gave testimony.  The Respondent, represented by Attorney Joseph Courtney, appeared and testified.  This reviewing committee also heard testimony from Attorney James Kelley and Ms. Donnanova McAndrew on behalf of the Respondent.  One exhibit was received into evidence at the hearing.  Another exhibit was received into evidence following the hearing.  A previous hearing scheduled for December 13, 2001 was continued at the request of the Respondent’s counsel. 

 

This reviewing committee finds the following facts by clear and convincing evidence:

 

The Complainant attorney represented the defendant father and paternal grandparents in a contempt action against the plaintiff mother involving visitation with the minor child.  The plaintiff mother, Donnanova Foster, was represented by Attorney James Kelley.  Attorney Susan Connolly was appointed as the child’s guardian ad litem. 

 

In connection with the contempt proceedings, the parties entered into an agreement to undergo a custodial psychological evaluation.  Dr. Ronald Anderson conducted the evaluation and filed his report in or around October of 2000.  Thereafter, on November 9, 2000, Attorney Kelley filed a motion in limine to preclude Dr. Anderson’s testimony and evaluation.  One of the claims made in the motion at paragraph six was the following:  “The evaluator has not disclosed the nature or content of the ex parte conversations with Defendants’ counsel which he orally admitted to Plaintiff to have had during the pendency of the evaluation.”

 

The parties subsequently appeared at a hearing before Judge Francis J. Foley, III on December 5, 2000 regarding various matters, including Attorney Kelley’s motion to preclude. The court denied Attorney Kelley’s motion to preclude Dr. Anderson’s testimony.  Attorney Kelley, thereafter, examined Dr. Anderson regarding conversations he had with the Complainant during the course of the evaluation.  Dr. Anderson testified that he spoke with the Complainant during the evaluation, but that his discussions were limited to when his report would be completed and scheduling matters.  Dr. Anderson specifically testified that he had no substantive discussions about the case with the Complainant. 

 

On or about February 14, 2001, Judge Foley issued his decision finding the plaintiff in contempt and entering orders.  The plaintiff, thereafter, retained the Respondent to represent her in the appeal of Judge Foley’s decision and in subsequent motions filed with the trial court.  On or about February 22, 2001, the Respondent filed a Preliminary Statement of Issues in connection with the appeal.  One of the issues presented was whether the trial court erred in denying the plaintiff’s motion in limine to preclude Dr. Anderson’s report and testimony.

 

On August 15, 2001, the parties appeared at a pre-argument conference hearing before Justice Robert Berdon in connection with the judgment of contempt.  The Respondent stated the following to the court:

 

There was, also, a question, as I recall, with the last evaluator that brought in the case of In Re:  David, because, apparently, there were communications ex parte between the evaluator and Attorney Connolly and Attorney Traystman and information provided to him.  It was not communicated to counsel for Miss McAndrew or Miss Foster, as she’s reflected in the file, and this was one of the issues on appeal, as well.

 

(August 15, 2001 T., p. 41).

 

 The Complainant, thereafter, asked the Respondent to state what the ex parte communication between he and Dr. Anderson concerned.  (August 15, 2001 T. pp. 42 and 48-49). The Respondent responded by stating the following:  “I can go through the transcripts and I’ll be happy to point out the information that Attorney Kelly, I believe, brought before Judge Foley in his - - I believe there was a motion filed.”  (August 15, 2001 T., p. 49-50).

 

Following the hearing, the judgment of contempt was vacated and the matter regarding custody and visitation was referred back to the regional custody docket following a hearing being held on whether the psychological evaluation should be updated.

 

The parties, thereafter, appeared before Judge C. Ian McLachlan on August 20, 2001 regarding whether Dr. Anderson’s evaluation should be updated.  The Respondent stated the following to the court:

 

MS. ANSELL:  - - part of the appealable issues, which are preserved per justice - - per the - - well, per Justice Berdon’s most recent letter to Attorney Drumm - - is that Mr. (sic) Anderson was subject to ex parte communication with both the guardian ad litem - -

 

THE COURT:  Dr. Anderson.

 

MS. ANSELL: - - and Attorney Traystman, rendering a problem.

 

(August 20, 2001 T., p. 17).    

Thereafter, the following exchange took place between the court and the Respondent:

 

MS. ANSELL:  But my objection to Ron Anderson was that, as I recall reading the transcript, he was given materials that were not agreed upon by all the parties to be given to him. And there were communications, admitted communications between him and Attorneys Traystman and Connolly, which were unbeknownst to other counsel, which were objected to.

 

THE COURT:  But did they have anything to do - -

 

MS. ANSELL:  And since Judge Keller’s - -

 

THE COURT:  - - did they have anything to do - - this is not a juvenile matters proceeding - - did they have anything to do with anything other than scheduling, the communications with - -

 

MS. ANSELL:  Yes, Your Honor.

 

THE COURT:  And what - -

 

MS. ANSELL:  That’s - -

 

THE COURT:  - - do you claim they had to do with?

 

MS. ANSELL:  I don’t have the transcripts in front of me, Your Honor.  They’re voluminous.  And I’m sorry - -

 

THE COURT:  Well, that’s - - that’ not good - -

 

MS. ANSELL:  - - but I don’t have them memorized.

 

THE COURT:  - - that’s not - - that’s not good enough, Attorney Ansell. You think there’s something in the transcript, but you can’t tell me what it is, is what you’re really telling me.

 

MS. ANSELL:  I just told you what it was.  That they had communicated - -

 

THE COURT:  No.  I asked you if it had something to do with something other than scheduling.  And you told me yes.

 

MS. ANSELL:  Yes.

 

THE COURT:  And I said, what was it?  And you told me you didn’t know.

 

MS. ANSELL:  It had to do with information.  They were giving information to Mr. (sic) Anderson regarding the case, the history of the case - -

 

(August 20, 2001 T., pp. 25-26). 

 

At the conclusion of the hearing, Judge McLachlan ordered that Dr. Anderson update the evaluation. 

Following the hearing, the Complainant sent a facsimile to the Respondent on August 24, 2001, stating that he was extremely surprised by the Respondent’s representations to both Justice Berdon and Judge McLachlan that the Complainant had ex parte communications with Dr. Anderson.  The Complainant requested that the Respondent forward a copy of the transcript confirming these statements.  The Respondent responded by facsimile dated August 24, 2001 stating that she could not understand why the Complainant would be surprised regarding allegations of ex parte communications with Dr. Anderson, and enclosed the November 9, 2000 motion to preclude Dr. Anderson’s testimony and evaluation filed by Attorney Kelley. 

 

The parties appeared before Judge McLachlan again on September 14, 2001 on the Respondent’s motion to reargue Judge McLachlan’s August 20, 2001 decision regarding updating the evaluation.  The Respondent’s representation regarding the Complainant’s ex parte communications with Dr. Anderson were again addressed by the court.  The Respondent advised the court that she had the transcripts regarding the Complainant’s communications but maintained that they were not relevant to the motion to reargue.  The following discourse, thereafter, took place between the Complainant, the Respondent and the court:

 

MR. TRAYSTMAN:  Your Honor, I would love to see those transcripts of what Attorney Ansell claims was the testimony that had to do with an affirmative finding that there was ex parte communication between myself and Dr. Anderson. Is she indicating to the Court right now before you that she has transcripts that confirm that I had ex parte communication?

 

THE COURT:  Was that your claim?”

 

MS. ANSELL:  No, your Honor.  I said that there was conflict between the parties regarding ex parte communication, and that the claim was that that evaluation had been tainted.

 

THE COURT:  I understand that was the claim.  And I asked you when we were here last time - - I remember the discussion, and I asked you specifically did it have to do with other than routine scheduling and those matters or did it have to do with the substance; and you assured me that it had to do with the substance.  And I said what, and you said you don’t remember.  And I said well, that really isn’t good enough.  And of course, now that’s what you cite in your motion to reargue for some other issue, not good enough.  But go ahead, Attorney Ansell.

 

MS. ANSELL:  I believe that at the time during the trial, what was at issue were background reports that were provided to the evaluator and - -

 

THE COURT:  You told me that you had a transcript about what the specific issues were.  And you told me - -

 

(September 14, 2001 T., pp. 24-25).

 

The Respondent, thereafter, quoted statements from the transcript to support her statements to the court.  The court responded by stating that the communications appeared to involve scheduling.  Later in the proceedings, the court asked the Respondent to provide the court with the information she alleged the Complainant improperly gave to the evaluator that was inappropriate.  Following the Respondent’s answer, the court stated the following:  “All right, and this is the last time I’m going to ask this question.  What specific information did you claim Mr. Traystman improperly supplied to Dr. Anderson?”  (September 14, 2001 T., p. 27).

 

The Respondent replied by stating that:  “Well, the claim from Attorney Kelly and Ms. Foster was that there were background reports which they were not privy to that I believe included private investigator evaluation but then later it was stated that they were given to the evaluator by the grandparents.”  (September 14, 2001 T., pp. 27-28).

 

The Complainant, thereafter, advised the court that the Respondent had indicated to Justice Berdon and to the court that she had information from the transcript.  In response, the court stated the following:  “And I’ve asked her that three times and she has not - - the only thing she has told me, there was some dispute about information.”  (September 14, 2001 T., p. 28).  At the conclusion of the hearing, the court denied the plaintiff’s motion for reargument.

 

This reviewing committee also considered the following evidence:

 

Attorney James Kelley testified that Donnanova Foster advised him that Dr. Anderson told her that he had communications with the Complainant during the course of the evaluation. Attorney Kelley indicated that he so advised the Respondent.  Attorney Kelley further testified, however, that he never told the Respondent that there was evidence in the transcript indicating that the Complainant had substantive ex parte communications with Dr. Anderson. 

 

Donnanova Foster testified that she also told the Respondent that Dr. Anderson had told her that he had had conversations with the Complainant.  Ms. Foster, however, could not recall whether Dr. Anderson told her the substance of his conversations with the Complainant.

 

The Respondent testified that she reviewed all the transcripts prior to filing the appeal.  The Respondent testified that she believed that she did tell Justice Berdon that there were allegations in the transcript that the Complainant had engaged in ex parte communications.  The Respondent’s counsel acknowledged that this statement to Justice Berdon was clearly a mistake.  The Respondent’s counsel argued, however, that the statement was not made intentionally and did not rise to the level of deceit or fraud. 

 

This reviewing committee concludes that the Respondent’s statements to the court regarding the Complainant’s communications with the evaluator, Dr. Anderson, were not accurate in violation of Rules 3.3(a)(1), 3.4(5) and 8.4(3) of the Rules of Professional Conduct.  The record reflects that the Respondent appeared at a hearing before Justice Berdon on August 15, 2001 and stated that:  “[T]here were communications ex parte between the evaluator and Attorney Connolly and Attorney Traystman and information provided to him.”  (August 15, 2001 T., p. 41).  After being pressed by the Complainant and the court to state the basis of the ex parte communications between the Complainant and the evaluator, the Respondent stated that she could review the transcript and point out the information to support her claims.  These statements were made, according to the Respondent’s testimony, after she had reviewed all the transcripts from the proceedings before the trial court.  The transcripts of the proceedings before the trial court, however, did not support the Respondent’s statements.  The record reflects that at the hearing held on December 5, 2000 before Judge Foley regarding Attorney Kelley’s motion to preclude the evaluator’s testimony and evaluation, the evaluator testified under oath that his discussions with the Complainant were limited to scheduling matters and that he did not have substantive discussions about the case with the Complainant.  The Respondent, therefore, knew or should have known by August 15, 2000, that the transcripts of the trial court proceedings did not support her statement that the Complainant had engaged in ex parte communications with the evaluator.

 

Despite the fact that the Respondent had been challenged by both the Complainant and the court to produce information in support of her statements, she appeared at a hearing five days later before Judge C. Ian McLachlan on August 20, 2001 and again stated that the Complainant had engaged in ex parte communications with the evaluator.  The Respondent stated that there were communications between the evaluator and the Complainant and that these communications were substantive and not limited to scheduling issues.  (August 20, 2001 T., p. 25).

 

The Respondent still made no effort to correct her false statements from the prior hearings when she appeared before Judge McLachlan on September 14, 2001.  The court had to ask the Respondent at least three times what was the basis of the Complainant’s ex parte communications with Dr. Anderson.  Finally, the Respondent advised the court that her claim was that the grandparents had provided the evaluator with ex parte background reports.

 

This reviewing committee concludes that the statements made to Judge McLachlan at the August 20, 2001 hearing and September 14, 2001 hearing were made recklessly by the Respondent, since the Respondent could have and should have reviewed the trial court transcripts prior to the August 20th hearing or at least by the September 14th hearing, to determine whether her statements to the court on August 15th were accurate.  Had the Respondent done so, she would have determined that her representations to the court that the Complainant had engaged in ex parte communications with the evaluator were false and that there was no evidence in the transcript to support such statements.  We find the Respondent’s failure to do so troubling, considering the serious nature of the Respondent’s allegations against the Complainant and considering the fact that these statements constituted the basis of the Respondent’s argument in support of her position. We are of the opinion that the Respondent knew or should have known that her statement to Justice Berdon was false and taken greater efforts to rectify this false statement when she appeared before Judge McLachlan on August 20th and September 14th.

 

This reviewing committee concludes that the Respondent’s statements to the court regarding the Complainant’s communications with the evaluator were false in violation of Rule 3.3(a)(1); were not supported by evidence in violation of Rule 3.4(5); and, constituted misrepresentation in violation of Rule 8.4(3) of the Rules of Professional Conduct.  We can not conclude by clear and convincing evidence, however, that the Respondent’s actions violated Rules 3.1, 3.3(a)(4) or 8.4(1) and (3) of the Rules of Professional Conduct.  Accordingly, since this reviewing committee finds that the Respondent engaged in ethical misconduct, we reprimand the Respondent.

 

 

 

___________________________________

Attorney Anne R. Hoyt

 

 

                                                           

Attorney Vincent M. DeAngelo

 

 

___________________________________

Ms. Johanna Kimball