AC 38235

In the Supreme Court of the State of Connecticut

_________

DISCIPLINARY COUNSEL

v.

JOSEPH ELDER

________

BRIEF AMICUS CURIAE

OF JOSEPHINE SMALLS MILLER
IN SUPPORT OF APPELLANT JOSEPH ELDER

________

JOSEPHINE S MILLER
152 Deer Hill Avenue
Suite 302
Danbury, CT 06810
(203) 512-2795

Amicus Curiae
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TABLE OF CONTENTS

TABLE OF AUTHORITIES.2

Interest of Amicus Curiae.. 3

Summary of Argument3

ARGUMENT

I. The Historical Pattern of Bar Discipline Has

Been Singularly Unkind to Lawyers Who are
not Politically Connected or Who Represent
Unpopular Causes or Individuals4

II. Although Bar Discipline Matters are Sui

Generis, such Uniqueness Should Not Be a
Means for Silencing Lawyers for Political
Reasons.6

III. Precision in the Regulation of Attorney

Conduct Must be the Touchstone.8

CONCLUSION10
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TABLE OF AUTHORITIES

Cases

Chicago Bar Ass'n v. McCallum, 173 N.E. 827 (Ill. 1930).6

In Re Griffiths, 413 U. S. 717 (1973) 9

In Re Primus, 435 U. S. 412 (1978)..8

In re Sawyer, 360 U. S. 622 (1959)6

Konigsberg v. State Bar, 353 U. S. 252 (1957)6

Miller v. Connecticut Appellate Court, SC19346.8, 9

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958)6

NAACP v. Button, 371 U.S. 415 (1963)8, 9

Sacher v. United States, 343 U. S. 1 (1952)5

Schware v. Board of Bar Examiners, 353 U. S. 232 (1957)..6

Truax v. Raich, 239 U. S. 33 (1915),,9

Other Authorities

Advisory Committee on Cultural Competency, Annual Report to Chief Justice

Chase T. Rogers, July 20136

Michelman, Frank, Brennan and Democracy (2005)..8

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

Levinson, Sandford, National Loyalty, Communalism, and the Professional Identity

of Lawyers, 7 Yale J.L. & Human. 49 (1995) 5, 6

Moliterno, James E. "Politically Motivated Bar Discipline"(2005) Faculty Publications,

Paper 928 http://scholarship.law.wm.edu/facpubs/928.....................................4, 7, 8
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Interest of Amicus Curiae

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

the United States Supreme Court.

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

politically motivated discipline of African-American attorneys like herself. Given 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

system is of interest to Amici.

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

extraordinary sanction of a year long suspension under circumstances where lawyers

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

to any issue of attorney ethics.

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
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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

status quo and cleanse itself of lawyers thought to be "impure" .

ARGUMENT

I. The Historical Pattern of Bar Discipline Has Been Singularly Unkind to

Lawyers Who are Not Politically Connected, Who Represent Unpopular
Causes or Individuals, or Who are Ethnically Distinct

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.

In a wide variety of contexts, such lawyers were disciplined or threatened with

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

work promised." 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

downfall of the profession to lawyers in political trials and encouraged the legal profession
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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

eagerness to discipline Attorney Elder.

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). Likewise, Attorney

Elder has had an unblemished thirty year record as a lawyer, and he sat as a member of

the Connecticut Board of Pardons for twenty years.

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

adoption of restrictions such as nationality based restrictions designed to impair the

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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

in financial assistance violations)

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

African-American attorneys differently than others.

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

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). In

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

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While we can determine the number of reported cases of professional discipline,

we can never determine the number of lawyers silenced and the number of clients who

went unrepresented. Justice Douglas described the professional phenomenon as a

"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

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.

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
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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

and unworkable standard that is no standard.

III. Precision in the Regulation of Attorney Conduct Must be the Touchstone

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

quality of vagueness and overbreadth into the area of attorney discipline.

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). 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.
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Michelman suggested that the reasoning in Button had remarkable implications directly

attacking the idea that " law stands neutrally and impartially above and apart from

politics,". Further, when Connecticut courts sought to uphold a prohibition on admission

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

[Fourteenth}Amendment to secure. In Re Griffiths, 413 U. S. 717 (1973) citing Truax v.

Raich, 239 U. S. 33, 35 (1915).

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

resolute determination to acknowledge and correct the injustice of racial disparity in

treatment of African-American lawyers because as stated by the Reverend Dr. Martin

Luther King, Jr., " injustice anywhere is a threat to justice everywhere."

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.
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bar, the regulation of attorney conduct becomes tainted, precision of regulation is

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

open the door to diversity?

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