STATE OF CONNECTICUT

STATEWIDE GRIEVANCE COMMITTEE

DANBURY J.D. GRIEVANCE CASE No. 15-0688

V.

MILLER, JOSEPHINE FEBRUARY 27, 2017

RESPONDENTS POST-HEARING BRIEF

I. INTRODUCTION AND STATEMENT OF FACTS

This grievance hearing was held on December 1, 2016 as a result of a referral

from the Connecticut Appellate Court regarding four cases consolidated at a show cause

hearing on December 4, 2014, an investigation by the Office of Chief Disciplinary

Counsel, and a referral by a superior court judge regarding three trial level cases handled

by Respondent. Respondent was not notified1 of the referral from the superior court judge

until after a reply brief was filed in the Writ of Error before the Supreme Court pointing

out disparate treatment of Respondent and a Caucasian attorney in two cases before that

same judge.

The hearing focused on alleged violation of various rules under the Connecticut

Code of Professional Responsibility, namely 1.1, 1.3, 3.1, 3.2, 3.4 (3) and 8.4 (4)

regarding competence, diligence, fairness to opposing party and counsel, misconduct and

conduct detrimental to the administration of justice.

1
While correspondence from the Disciplinary Counsel claims that the referral date
preceded the filing of the reply brief, the refusal of the reviewing panel to permit
questioning of the disciplinary counsel, means that there has been no opportunity to
search out the truth of this. Reasonable minds could question whether the referral was
made in retaliation for Respondent having presented evidence of racially disparate
treatment.
1
 At the hearing on December 1 Respondent was denied the right to present

witnesses in support of her defense and was denied the right to question two members

of the Office of Chief Disciplinary Counsel. The reviewing committee vacated the

subpoenas that had been served on Suzanne Sutton (who had investigated the claims

against Respondent) and Beth Baldwin (who had handled the attempted disciplinary

action against a comparator Caucasian attorney).

The scope of Respondents defense to the claims was limited by the reviewing

panel when it determined that the four cases that had been heard by the Appellate Court

could not be reviewed due to res judicata and collateral estoppel. The panel further heard

argument2 regarding whether the Supreme Court decision in Miller v. Connecticut

Appellate Court, 320 Conn 759 (2016) regarding the scope of the Appellate Court referral

should govern the hearing. That is, whether the Supreme Court allegation that the order

of referral was to determine if Respondents conduct was part of a larger pattern of

irresponsibility justifying investigation of conduct in state and [federal] court.

III. LEGAL ARGUMENTS

A. Pursuit of the Grievance Against Respondent is Tainted

By Unlawful Discriminatory and Retaliatory Motivation

In a sweepingly broad and unwarranted interpretation of the Appellate Court

Order referring Respondent for investigation by the Office of Chief Disciplinary Counsel,

the Supreme Court set the tone for a pre-ordained decision to discipline Respondent

regardless of the facts. Violating the statutory rules of construction, the Supreme Court

2
Respondent also submitted a written brief regarding the legal determination of the
Supreme Court in response to the Writ of Error filed in the Appellate Courts six month
suspension of Respondent from practice before the Appellate Court.
2
utilized the fiction that the order of referral by the Appellate Court could have been

clearer. This fiction was then used to broaden the referral from a request for an

investigation into the specific conduct giving rise to this writ of error.to a request for a

determination of whether Millers conduct before the Appellate Court was part of a larger

pattern of irresponsibility in Millers handling of her professional obligations. Again

ignoring the principle of strict construction, the court then stated we do not know whether

the Chief Disciplinary Counsel will find instances of neglectful or otherwise unacceptable

conduct by Miller in the Superior Court Miller v. Appellate Court, 320 Conn. 759

(2016). This reviewing committee then broadened the referral even further by adding

Respondents federal court cases to those be included among those examined.

As Justice Espinosa opined in LaPointe v. Commissioner of Correction, (Conn

2015) [i]t is not necessary to engage in any divination to discern the impetus driving

the majoritys decision. My conclusion is that the majority begins with the conviction that

the petitioner is innocent, and only constructs its analysis after it has arrived at that

conclusion, LaPointe dissent. In the instant case Respondent has been hailed before

this reviewing panel with the foregone conclusion that she is guilty of misconduct even

when the specific facts establish otherwise.

As noted in the brief submitted with regard to the issue of the scope of this hearing,

Respondent has been hawkish in protesting the discriminatory and retaliatory manner

that the judicial branch and its agents (disciplinary and grievance authorities) have treated

her. This has included (a) a complaint of discrimination filed with the Commission on

Human Rights & Opportunities against the Office of Chief Disciplinary Counsel [CHRO

3
Case No. 1610026] alleging a violation of C.G.S. 46a-71; (b) a complaint with CHRO

against the Statewide Grievance Committee [CHRO Case No. 1610342] also alleging a

violation of C.G.S. 46a-71; (c) a federal civil action in alleging discriminatory and

retaliatory investigation by disciplinary authorities in Miller v. Carrasquilla, et al. Civil

Action No. 3:15CV01111 (MPS).3 This reviewing panel may also take judicial notice of

the complaint of Respondent in Miller v. City of Bridgeport Police Department, et al.,[16-

4102cv] presently on appeal to the Second Circuit Court of Appeals that alleges, inter

alia, racial discrimination in the refusal to pay her as Caucasian lawyers, placement of

her on a no pay list, attempted bribery, and tortious interference with her contracts with

clients (e.g. Bridgeport Assistant City Attorney who encouraged Respondents client not

to use her but recommended a Caucasian lawyer).

In a well-researched law review article, [Moliterno, James E. "Politically Motivated

Bar Discipline"(2005) Faculty Publications, Paper 928

http://scholarship.law.wm.edu/facpubs/928] it has been documented that lawyers who

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

homogeneity of thought" have been subjected to unwarranted discipline processes.

Moliterno, Id.

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

3
The reviewing panel may take judicial notice of the pending appeal in this matter before
the Second Circuit Court of Appeals in Miller v. Carrasquilla, et al. [16-2896cv]
4
downfall of the profession to lawyers in political trials and encouraged the legal profession

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 dissenting from a Supreme Court's affirmance of a contempt conviction of a

lawyer whose otherwise unblemished 24 year record resulted in disbarment because he

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

are obscure, unpopular, or defenders of unpopular persons or unorthodox causes."

Sacher v. United States, 343 U. S. 1, 18 (1952 Black, J, dissenting).

The manner in which the disciplinary authorities in the instant case have chosen

to go after and investigate Respondent for matters that hardly raise an eyebrow for others

is explainable by the political and racial motivation because Respondent is a civil rights

lawyer who litigates unpopular causes and is unapologetically black in her worldview. In

a prior grievance hearing, the Chief Disciplinary Counsel has recommended a

5
presentment against Respondent for the stated reason that she did not like Respondents

attitude and in written communication in the same grievance that attorneys usually panic

when confronted with a grievance. The attitude of the lawyer and their lack of fear should

not be any factor in whether discipline is imposed or even recommended.

It is with these factors in mind, and discussion infra, that this reviewing panel

should examine the evidence and reach their determination.

B. There is No Clear and Convincing Evidence of a Lack of

Knowledge and Skills by Respondent to Competently
Perform

As a practitioner in the area of civil rights litigation for thirty-six years, the paper

trail that is sought to be created, is recognized by Respondent as a tried and true

technique. That is, if it is claimed that there is incompetence regarding an African-

American lawyer and few will question it. The disciplinary authorities, and this reviewing

panel, must first ignore Respondents thirty-six years of spotless practice covering public

and private sector, corporate in-house, defense and plaintiff representation. [R EX A] This

panel need not accept Respondents own assessment of her competence but may look

to the opinion of the same federal court judge who sanctioned her and thus set off multiple

rounds of disciplinary actions. [R EX B] It was evident at trial that plaintiffs counsel is

a highly capable and skilled trial attorney, and that those skills were indispensable to the

success of her client in this case, in which his testimony alone stood against the contrary

testimony of numerous police officers. His counsel was thoroughly prepared, organized,

and adept at all stages of argument and examination of witnesses. [R EX B, page 3]

Moreover, attorney John Williams, one of Connecticuts premier civil rights

6
attorneys, considered Respondent to be a highly skilled civil rights attorney and would

recommend her without hesitation to persons seeking representation in civil rights

litigation. [R EX C, 4]

The obvious attempt to create a paper trail may be demonstrated by the referral

made in the matter of Mazzo v. Town of Fairfield, CV12-6031781. In this matter it is

claimed that Respondent failed to produce her client for a deposition and filed

inappropriate caseflow requests. It is stunning that the judge making the referral and the

reviewing panel failed to recognize that the very documents presented to prove the

alleged incompetence themselves establish that the attorney who failed to produce his

client was not Respondent, but another attorney in the case. [R EX D; R EX E; TR. 104,

LL 26-27; TR. 105, LL 1-27; TR. 106, LL 1-12; TR. 107, LL 15-27; T. 108, LL 1-3] The

claim is absolutely false that Respondent refused or failed to produce her client for

deposition. The clients deposition took place on two separate occasions. [TR. 63, LL 2-

14] Rather than this matter demonstrating any incompetence or lack of diligence or any

other rule violation by Respondent, it clearly demonstrates the willingness of the judicial

branch and the disciplinary authorities to fail or refuse to even read the documentary

evidence before them and to recommend discipline just because they can. If anyone

should have been hailed before this reviewing panel, it should have been the Caucasian

attorney who actually engaged in the alleged misconduct in refusing to present his client

for deposition. To fail to discipline him demonstrates that there is a double standard, prima

facie evidence of racial and political motivation in this probable cause finding against

Respondent.

7
 Moreover, even the claim of improper use of caseflow request forms is refuted by

the evidence of all such forms filed in the case. What the documents establish is that,

once again, it was not Respondent, but another attorney in the case who filed caseflow

requests that were arguably inappropriate. [R EX F] The obvious question is why then

wasnt attorney Formica referred to the disciplinary authorities for improper use of the

caseflow forms? Indeed, any Connecticut attorney who engages in civil practice should

readily admit that caseflow request forms are utilized when there is insufficient time for a

motion to be placed on the calendar for oral argument and/or consideration. The

acceptance of such use by attorney Formica, with impunity, establishes that point. The

referral of Respondent to disciplinary authorities for such a matter should give some

cause for concern for any lawyer. [TR. 65, LL 20-27; TR. 108, LL 11-27; TR. 109, LL 1-

14; TR. 110, LL 23-27; TR. 111, LL 1-27; TR. 112, LL 1-12 TR. 113, LL 6-16]

The disciplinary authorities and the referring court have made a mountain out of a

molehill. When the Caucasian attorney in the Mazzo case failed to file even a caseflow

request, failed to file any motion for continuance, and did not appear for jury selection,

ABSOLUTELY NOTHING, was done to sanction him for his conduct. [TR. 113, LL 17-27;

TR. 114, LL 1-6; R EX G] By contrast, one of Respondents cases was dismissed by the

same court, when she did not appear for jury selection due to illness. Mezsaros v. Banks,

CV12-6027816; [TR. 113, LL 21-26].

C. There is No Clear and Convincing Evidence of a Lack of

Reasonable Diligence by Respondent in Handling Her Cases

With regard to each case cited by Disciplinary authorities, it is contended that

Respondent failed to show reasonable diligence in violation of Rule 1.1. Two examples

8
will be used to demonstrate that the judicial branch has strained in its efforts to create a

paper trail for sanctioning Respondent. In Willis v. Community Health Services, AC

36955,4 the Appellate Court dismissed an appeal5 for the purported reason that a

certificate of transcript was not timely filed. At the time of the show cause hearing6 in this

matter Respondent explained that she was out of the country when a rule nisi order was

issued requesting the filing of a transcript. Although the date for complying with the rule

nisi had passed by the time Respondent returned to the country, in a motion to open the

dismissal it was explained that the transcript in question had actually been filed with the

court some five months earlier in the same case but only under a different docket number.

This was apparently deemed to be such egregious misconduct that the Appellate Court

nevertheless dismissed the appeal.

In another example of the lengths to which the disciplinary authorities have gone

to find a basis to discipline Respondent, in Mezzaros v. Banks, CV12-6027816, the

claimed misconduct was that Respondent waited until 119 days before moving to open

the judgment of dismissal. Since parties are permitted 120 days within which to move to

4
Although the reviewing panel has apparently concluded that res judicata applies so that
no new evidence was received regarding this matter. However, the undisputed facts may
be taken judicial notice of for examination of the point being made by Respondent.
5
Although the reviewing panel apparently deems this matter to be governed by
principles of res judicata or collateral estoppel, it may nevertheless take judicial notice of
the underlying facts of the case.
6
Even the show cause hearing was unprecedented in that no prior case could be found
where the Appellate Court ordered an en banc hearing before all nine judges in order to
hear claims regarding essentially claims of procedural violations. While the Appellate
Court has authority to discipline attorneys, their sua sponte decision to utilize the en banc
procedure, normally reserved for matters of utmost importance to the administration of
justice in Connecticut practice was unique. Even an article in the Connecticut Bar Journal
found the Appellate Courts action in ordering the show cause hearing to be an unusual
twist. Professional Responsibility Review 2015 page 63, fn 22. [Emphasis added]
9
open a judgment, there can be no quarrel with Respondents action. She met the 120

day statute of limitations when filing to open the dismissal. When questioned at the time

of this grievance hearing as to why Respondent waited 119 days, the answer was:

A. .when the reference is made to me taking 119 days that was because I
was seeking to get other counsel for Mr. Banks. I was well aware that Judge Bellis was
not going to open the motion to open the judgment. And so I tried to get someone else
for him thinking that if he were represented by someone other than me, maybe he might
have a chance of her opening it, but was unsuccessful in finding anyone else to take the
case on.
Q Okay. Why do you saw that you were well aware that Judge Bellis wasnt
going to grant the motion to open?
A That would take a bit of telling, but if you listen to it, there had been a number
of instances where it has been made clear to me that Judge Bellis would side with
whoever was opposing counsel whatever case I was on. Even the referrals that shes
made to the Disciplinary Counsel I think when we go through some of the other cases are
going to establish that. In one specific instance, I had a conversation with Judge Bellis
at my request in her office because of something that I had heard from opposing counsel
in the Cimmino case.
Q Okay. But that has nothing to do with this case, right?
A No, youre asking me why I felt Judge Bellis would not open the motion and
Im telling you why. Theres a long history between Judge Bellis and I. So thats why Im
answering that question if you want me to continue.
Q I think youve given me an idea that you indicate that you felt that Judge
Bellis wouldnt.
A Not just that I felt, in the Cimmino case, there was an instance when
opposing counsel filed a motion to dismiss after a year and a half into the case. She had
filed a motion to strike. I distinctly remember that when we went to argue the motion to
dismiss, opposing counsel was asked by the Judge, not Judge Bellis, was asked by the
Judge why she waited for a year and a half to file a motion to dismiss. I dont think she
intended to say this, but opposing counsel said that she had gotten advice from
Judge Bellis that she should file a motion to dismiss.
Later on, when I attempted to get the transcript of that, that particular information
was deleted, it was not in the transcript. So because of that, I asked for a meeting
with Judge Bellis in her office because I wanted to find out why it was that she would be
given evident, excuse me, advice to opposing counsel in a case. She was not the Judge
of record on that case, but she was Presiding Judge. And I believe that that was
discriminatory for her to give advice to the other side. And so that is to say that there was
this history between Judge Bellis and I. So I felt like there wasnt going to be any
movement on her part with anything that has to do with me. Thats why I sought to try to
get other counsel for Mr. - Mr. Banks. [TR. 58-60] [Emphasis added]

10
 Further, in the Banks case, it is claimed that Respondent failed to appear for jury

selection. However, Respondent filed a case flow request asking a rescheduling of the

jury trial due to illness. Two matters are noteworthy regarding the Banks case. Firstly,

multiple opposing counsel were permitted by the trial judge to continue the jury selection

in order that they might attend the funeral of a colleagues wife. However, when

Respondent sought a continuance it was denied and the matter dismissed. Apparently,

a dead Caucasian is more important than a live Negro lawyer. [TR. 44, LL 6-13; TR 52,

LL 2-7] Secondly, the same trial judge who dismissed Respondents case for not

appearing for jury selection, failed to take any action when the Caucasian attorney in the

Mazzo case, failed to file a motion for continuance, failed to file a caseflow request, and

failed to appear for jury selection. Instead, the court simply sua sponte continued the jury

selection to a future date. [TR. 113, LL 17-27; TR. 114, LL 1-6; R EX G]

Notably, three of the four trial level cases referred to this reviewing panel were

cited by Judge Bellis as examples of alleged incompetence, lack of diligence, etc. by

Respondent (i.e. Stone, Mezzaros, and Mazzo). If advice has been given to attorneys

who are opposite Respondent on one case, it is a fair question whether these referrals

were motivated by something other than the claimed lack of competence, skill, or

diligence. Respectfully, it is submitted that there is an insufficient showing of clear and

convincing evidence to support these claims.

D. There is No Clear and Convincing Evidence that Respondent

Acted with Unfairness to Opposing Counsel

The claim that Respondent has acted in a manner that violates Rule 3.4 regarding

fairness to opposing party and counsel is so far-fetched as to be unbelievable. Rather

11
than unfairness to opposing party and counsel, a disturbing pattern of conduct has been

demonstrated that, with assistance from the judicial branch, an unfair advantage has been

given to opponents of Respondent. See transcript regarding the advice and counsel to

opposing counsel to file a motion to dismiss, dismissal of a case under circumstances

when there was no plausible reason to differentiate Respondent from Caucasian attorney.

[TR. 58-60; TR. 113, LL 17-27; TR. 114, LL 1-6; R EX G]

The comparator evidence regarding attorney Peters-Hamlin demonstrates how

little regard the Disciplinary Counsel has for instances when attorneys engage in

misconduct and conduct detrimental to the administration of justice. This attorney was

suspended for seven years by the New York State and Federal Court, disbarred in

Maryland state court but has never been reprimanded by Connecticut State or Federal

courts except for a retroactive suspension. The state judicial website does not list any

reprimand of her and she has not lost a single day of legal practice. Her misconduct is

amply demonstrated that while serving as lead counsel for a plaintiff in a trade secrets

infringement suit in New York, instructed a first-year associate to mark-up deposition

transcripts and claim them as attorney work product; knowingly made false statements to

mislead the court as to these events; and made copies and ordered additional copies of

deposition transcripts for use in another matter, in contravention of court confidentiality

orders. Respondent engaged in conduct involving repeated intentional dishonesty,

misrepresentations, and deceit. Judicial notice may be taken by this reviewing panel of

the matter of Attorney Grievance Commission of Maryland v. Kristan Peters-Hamlin, Misc.

Docket AG No. 30, September Term, 2015. Opinion by Hotten, M. Peters-Hamlin

pursued her appeal of a seven year suspension for seven years, during which time all

12
consideration of reciprocal discipline was held in abeyance by Connecticut State and

Federal courts. At the end of this extended period of appeals, a Connecticut superior

court judge found that Peters-Hamlin had suffered enough and that no discipline was

warranted. If Connecticut disciplinary authorities could overlook this history of

misconduct by this Caucasian female attorney, then it has no genuine cause to discipline

Respondent.

E. There is No Clear and Convincing Evidence that Respondent

Engaged in Conduct Prejudicial to the Administration of Justice

The catchall topic of conduct prejudicial to the administration of justice is

obviously an important one. However, the laudable and lofty purpose of ensuring proper

administration of justice has little meaning when there are clear examples when the

administration of justice is ignored as regards some members of the bar. See for example

the seven year inaction by the Disciplinary Counsel before it sought any action to

discipline Attorney Kristen Peters-Hamlin. [FST-CV15-6024364; In Re Peters-Hamlin

3:08gp00018 (JCH)] See also the refusal of Disciplinary Counsel to seek any meaningful

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. If the disciplinary authorities were truly concerned about

the administration of justice, they would not ignore such obvious instances of misconduct

by other attorneys who are well-connected and Caucasian.

13
 As the U. S. Supreme Court has said "[p]recision of regulation must be the

touchstone in an area so closely touching our most precious freedoms." N.A.A.C.P. v.

Button, 371 U. S. 415 (1963). Cf. In Re Primus, 435 U. S. 412 (1978).

There is more than ample evidence that Respondent has been subjected to a

double standard imposing discipline and the threat of discipline in order to chill her civil

rights litigation on her own behalf and that of her clients.

IV. CONCLUSION

More than fifty years ago the United States Supreme Court said that a State may

not, under the guise of prohibiting professional misconduct, ignore constitutional

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).

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 461 (1958).

When lawyers are disciplined for the purpose of silencing their "non-homogenous

voices" the public at large is harmed.

"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.

This reviewing panel has been convened for the purpose of carrying out the

politically motivated complaints from the Connecticut Judicial Branch and disciplinary

authorities to silence Respondent for her refusal to think and speak homogeneously, in

lock step with the majority Caucasian bar. It is respectfully submitted that this reviewing

14
panel should have the courage to reject the politically motivated efforts of the disciplinary

authorities and the judicial branch to create a paper trail for continued discipline of

Respondent.

THE RESPONDENT
By: __/s/Josephine S. Miller____________
Josephine S. Miller, JURIS #422896
152 Deer Hill Avenue, Suite 302
Danbury, CT 06810
Tel: (203) 512-2795
Fax: (203) 702-5188
Email: jmillerlaw@sbcglogal.net

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 CERTIFICATION

This is to certify that the foregoing Respondent Post-Hearing Brief was served via

electronic mail on February 27, 2017 upon the following:

Karyl Carrasquilla
Chief Disciplinary Counsel
100 Washington Street
Hartford, CT 06106

Elizabeth M. Rowe, Assistant Bar Counsel

Statewide Grievance Committee
287 Main Street, Second Floor
East Hartford, CT 06118

/s/Josephine S. Miller
Josephine S. Miller

16