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Remarks by Chief Justice Sullivan
Connecticut Bar Association
Annual Meeting June 13, 2005

Thank you, President Ury, President-elect Pepe, members of the Connecticut bar association, ladies and gentlemen. I appreciate the opportunity to speak to you tonight. This association has a long history of supporting the judicial branch, and I appreciate all that you do for the branch and for the legal profession.

As in past years, I look forward to this opportunity to review some of the initiatives the judicial branch has undertaken or progressed during the past year, and I would also like to share with you some efforts we are taking to address some current issues that affect the judicial branch.

The first topic that may be of interest to all of you concerns the progress that has been made to date by the committee on lawyer advertising. I am happy to report that the work of that committee is moving along and making progress. As we are all in agreement, appropriate lawyer advertising serves a legitimate goal in providing the public with helpful information to ensure access to the services of attorneys, but that need must not overshadow the fact that the legal profession and our courts have a legitimate interest in upholding the public's confidence and respect for our system of justice, as well as preserving the dignity of the profession. I, therefore, expect that the important work of this committee will help us strike a balance that takes all of these interests and concerns into account.
 

Chief Justice William J. Sullivan
Biography of Chief Justice William J. Sullivan

Judges' Corner
 


 

I will also share with you that I have a number of concerns about the increasing involvement of non-lawyers as mediators and arbitrators in family dissolution cases. The first concern is the impact this practice has for many of our judges who sit in the family courts, because they are finding themselves faced with proposed agreements, devised either by non-lawyer mediators or out-of-state lawyers who are unfamiliar with Connecticut law. These mediated agreements sometimes contain provisions that conflict with our statutory requirements, and they often do not even identify the name or credentials of the mediators who drafted them. The judge, who is prohibited from giving legal advice to the parties, is placed in the difficult position of having to explain to the parties why their proposed agreement cannot be approved as drafted, and the equally difficult position of having to disappoint people who thought they had completed this wrenching process by requiring them to go back and re-do their agreement. The second concern is equally important. It is a concern for the people who use these services. Although mediation is a respected and time honored way to resolve difficult divorce situations, my concern is that non-lawyer mediators and those who are lawyers not admitted in Connecticut may do the parties a disservice. We must remember that, for people who go through the difficult process of divorce, their settlement agreement may be the largest financial transaction they ever enter into. We must remember that property settlements, once entered as judgments, can never be modified. And we must remember that mediators who fail to protect their clients are unlikely to be subject to suit or to be covered by malpractice insurance to cover the losses. As these non-lawyer mediators may be treading into the prohibited area of the unauthorized practice of law, we are taking steps to look into the problem and to address it appropriately.

Another area of deep concern to me that has a very significant impact on public perception of lawyers is the serious issue of lawyer defalcation. As most of you may know, I was one of those lawyers and judges who initially disagreed that imposing a fee on individual lawyers was the way to go in order to compensate clients harmed by certain dishonest lawyers. The gravity of the situation, however, has changed my perspective, and I now see clearly the unfortunate need for this fee and for the invaluable work of the members of the client security fund committee who administer the fund. I regret to report, moreover, that we anticipate some very substantial claims that will impact the client security fund significantly in the very near future, as the result of lawyer defalcation.

the scope of the problem of lawyer defalcation is both complex and frustrating - in that it must necessarily even be a topic of focus. Our first line of attack on this problem requires taking steps to address certain root causes that lead some in our profession to succumb to temptations that are self-destructive and shattering to families and clients. As it has become apparent that some lawyers need assistance in handling personal problems before they become the problem of our entire profession, the attorney assistance advisory committee has been established, pursuant to section 51-81d of the Connecticut statutes, to provide for a lawyers assistance program that will offer confidential help to those lawyers who have problems with substance abuse and other personal problems that eventually lead to financial pressures and the erosion of their families and their professional responsibilities. We have been seeking to establish this program for 6 or 7 years now and we have finally met with success. However, we are not a pioneer in this field as 45 other states already have this program. So, as you can see, it's long overdue. We are hopeful that we can encourage lawyers to address these issues before they escalate into crisis situations.

Another avenue of attack on the problem of lawyer defalcation is the establishment of a task force on attorney trustee accounts. This was established recently by attorney Fred Ury, president of the CBA. I laud attorney Ury's efforts because i think such a committee has been long overdue. The members of that task force are very capable judges and lawyers who are investigating options that will help to reduce the number of incidents of lawyer defalcation in the future. It may surprise you to know that Connecticut lawyers have a billion dollars in trustee accounts on any given day. Moreover, most clients believe that trustee accounts are insured and that their money is safe in the hands of their lawyer. But that is, unfortunately, not always the case, as some lawyers have utilized the funds in their trust accounts in a variety of improper ways.
this task force is, therefore, looking at all options for preventing misuse of client funds, including the question of whether Connecticut should adopt a rule similar to the "new jersey rule," which provides that lawyers who are caught stealing from their clients are permanently disbarred, or whether attorneys who maintain funds for clients should be bonded. All options are on the table for finding ways to address this serious problem, and once the task force has developed its recommendations, it will draft proposed rules for consideration by the superior court rules committee. I am hopeful that these avenues we are pursuing will help us address this serious problem that impacts every one of us in the legal profession, directly or indirectly.

There are additional functions currently within the branch that also should be scrutinized for similar concerns. Last fall the Connecticut bar foundation sponsored a symposium on the topic of judicial independence. As I understand it, the decision to hold this symposium flowed from responses to a paper on judicial independence, written by two of my colleagues, Justice Peter Zarella and Judge Thomas Bishop, and published last summer in the Connecticut bar journal. At the symposium, two prominent constitutional scholars voiced their agreement with the concern raised in the paper, that the assumption by the judicial branch of various non-judicial functions puts the independence of the judiciary at risk. I, too, share those concerns. It is a good question whether many of these functions such as juvenile detention, victimís advocacy, child support enforcement, and others, would more properly belong in the executive branch rather than the judicial branch, so that judges can remain the impartial arbitrators the constitution requires them to be. The issues raised in the paper and echoed by the constitutional experts at the symposium are worthy of continued dialogue and decision making. In that regard, I am presently giving serious consideration to the creation of a commission on the judiciary to evaluate the current responsibilities of the judicial branch in light of its primary adjudicative function and to determine which, if any, of its many non judicial functions could better be performed by another branch of government. I expect you may hear more about this potential initiative in the coming months.

Finally, on a positive note, I am very pleased to acknowledge your organization's establishment of the Edward F. Hennessey award, to be given - not on an annual basis, but only when truly earned - to an attorney who has demonstrated exceptional professionalism and civility in the practice of law. This award will be presented tonight for the first time, and even though I have shared with you the story of Ed Hennessey on several previous occasions, I believe it warrants repeating one more time tonight - even for those who have already heard it - as one of you is about to receive this award that bears his name.
Attorney Hennessey came before the court during one of our Supreme Court road trips at the new Stamford courthouse where we had invited six local schools to attend oral arguments. He represented the appellee and his argument followed that of opposing counsel who had used all of his allotted time without reserving any time for rebuttal. With approximately 400 students in attendance, Ed Hennessey faced the court on a day when he was so ill he could barely stand. When I let him know it would be okay if he wanted to give his argument while seated, he declined, saying he wanted to do it the way it's supposed to be done. It was apparent to everyone present that he was having difficulty continuing, but he gave it his all and then had to conclude his argument before his allotted time had expired. Knowing that opposing counsel had failed to request any rebuttal time, attorney Hennessey informed the court that he had said just about all he had to say, and he then offered the remainder of his allotted time to his brother counsel in one of the finest examples of courtroom civility I have ever seen. Everyone present - and most importantly, the high school students - observed first hand the true definition of respect and professionalism and civility that every attorney should aspire to emulate, and it gives me great pleasure to know that this award has been established in memory of attorney Hennessey.

In closing, I would like to applaud the members of this organization for your service to the people of our state in providing them with competent and expert representation. Your presence here tonight exemplifies your dedication to your profession and to your efforts to solidify good communication between the bench and the bar.

My door as chief justice is always open to the bar for whatever help and support I can provide. I appreciate your kind attention this evening.
 

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