Silverman v. St. Joseph's Hospital
Silverman v. St. Joseph's Hospital
Opinion of the Court
This appeal arose out of proceedings in a malpractice action brought against the named defendant and two physicians and returned to the Superior Court in Fairfield County on the first Tuesday of August, 1968. The record discloses that the named plaintiff, Jerome Silverman, the administrator of the estate of Harold Nathan, resigned as administrator in April, 1972, during the pendency
A preliminary and necessarily lengthy recital of the facts surrounding and giving rise to this belated appeal is essential to place in context the limited issue involved. In October, 1968, the plaintiff applied to the Superior Court for permission to allow Alfred S. Julien, a member of the New York bar and not a member of the bar of this state, to take pretrial depositions of the defendants in preparation for the trial of the malpractice case. Over the objection of the defendants, the court (Bogdansld, J.) granted the application. Subsequently, in May, 1969, in an action brought by the defendants herein as plaintiffs, the court (Tierney, J.) granted an order permanently enjoining Julien from participating in the taking of the depositions. In November, 1970, the plaintiff applied to the Superior Court for permission to allow Julien to try the case. This application was denied by the court (LaMacchia, J.). In March, 1971, the then administrator and Mrs. Nathan commenced an action in the United States District Court for the district of Connecticut seeking a permanent injunction restraining Judge LaMacchia and the other judges of the Superior Court in Fairfield County from continuing a policy or practice which prevented them from engaging the services of Julien as their trial counsel in the state court action. By way of affirmative relief, they also sought an order directing the Superior Court judges to permit Julien to try the cases pro hac vice on behalf of the plaintiff in association with Con
On June 21, 1971, the judges of the Superior Court adopted § 15A of the Practice Book entitled “Attorneys of Other Jurisdictions Appearing Pro Hac Vice.”
Again the plaintiffs in the federal court action moved in that court seeking a final order granting the relief requested in their complaint — an injunction restraining the judges of the Superior Court
In December, 1972, a three-judge District Court decided the case, filing three separate opinions. Silverman v. Browning, supra. Judge Clarie in his opinion expressed the view that in denying the application filed pursuant to § 15A of the Practice Book the Superior Court misread the rule, in part, and ignored other pertinent provisions in certain respects. For these reasons and in the interests of federal-state comity, he was of the opinion that the Superior Court’s decision should be reviewed by this court. Silverman v. Browning, supra, 175-77. Judge Smith was of the opinion that the action in the federal court should be dismissed for want of a substantial federal question. Silverman v. Browning, supra, 180. Judge Newman was of the opinion that § 15A of the Practice Book contravened the equal protection clause of the federal constitution and was clearly unconstitutional. Silverman v. Browning, supra, 177-80. In view of the fact, however, that one of his colleagues favored abstention and the other dismissal, he concluded (p. 180): “In these circumstances, and solely to assemble a majority disposition, I concur in the result reached by
From this decision of the District Court, the plaintiffs in that court took a direct appeal to the United States Supreme Court which, on April 23, 1973, affirmed the decision of the District Court without oral argument or an opinion. Silverman v. Browning, 411 U.S. 941, 93 S. Ct. 1927, 36 L. Ed. 2d 406. Then on May 23, 1973, the plaintiff filed the present appeal to this court, claiming error in the May, 1972, judgment of the Superior Court denying the motion to admit Julien pro hac vice to argue this case on the trial.
As this recital of the background of this appeal indicates, the relatively simple issue presented by an appeal from the May, 1972 judgment of the Superior Court has been unnecessarily delayed, clouded and complicated. While it is true as stated by Judge Clarie in his decision of April 29, 1971, that “[t]his suit presents the delicate question of the right of a qualified and licensed out-of-state attorney to practice law in the state courts of Connecticut in a particular case,” adjudication of that question has been delayed and complicated by the successful efforts of the plaintiff to persuade the federal District Court to assume jurisdiction to intervene and issue orders with respect to the conduct of a trial in a trial court of this state in a
To the same effect was the decision of the three-judge District Court rendered December 4, 1972, after the decision of the Superior Court denying the plaintiff’s application. The District Court this time directed the plaintiffs to proceed with all reasonable diligence to obtain in this court appellate review of the Superior Court judgment denying Julien’s admission under the pro hac vice rule, continued the stay of the state court action, and again asserted
In many respects the situation is similar to that in Spector Motor Services, Inc. v. Walsh, 135 Conn. 37, 61 A.2d 89, and in Hoblitzelle v. Frechette, 156 Conn. 253, 240 A.2d 864. In the Spector case, this court (p. 70) indicated that “ [t]he trial court should not have decided whether the Corporation Business Tax Act was in violation of the United States constitution, because that question, as we have stated, is still before the federal courts for decision.” A further comment from that case also seems appropriate in the present circumstances (p. 42): “The plaintiff might have secured in the courts of this state the very relief which . . . [he] sought in the District Court; and we refrain from comment upon the long delay which must ensue before a final settlement of the controversy can be reached, due to . . . [his] invocation of the jurisdiction of the federal courts.” In the Hoblitzelle case, the District Court ordered an election in New Haven and there was a question as to whether § 9-167a of the General Statutes concerning minority representation applied to such an election. The District Court decided that the statute was not applicable. The United States Circuit Court of Appeals held that this decision was “premature” and that the question of the applicability of the statute should be presented if at all possible to the courts of the state for decision. Montano v. Lee, 384 F.2d 172 (2d Cir.). The District Court, however, retained
As if the assumption of jurisdiction by the District Court and its retention of jurisdiction pending a decision by the state courts, which it directed the plaintiffs to obtain, did not sufficiently confound the principal issue involved on this appeal, it is further confounded by the fact that the judgment from which the present appeal was taken was filed on May 5,1972. If that judgment was a final judgment, then the time for filing the appeal was under the provisions of § 601 of the Practice Book limited to twenty days. If, on the other hand, the appeal is considered to be permissible under the provisions
Despite the existence of all of these complications, we have, not without considerable hesitation and reluctance, decided to entertain the present appeal. Our decision is prompted by several considerations. Unlike the situation in the Spector and Hoblitzelle cases where the federal court had and exercised original jurisdiction and the later proceedings in the state court were thereafter undertaken at the direction of the federal courts which retained jurisdiction, in the present case it was the state trial court which had and was exercising original jurisdiction subject on appeal to review by this court, and it is the federal court which then chose, nevertheless, to intervene and interfere with the continuing exercise of state court jurisdiction. Paraphrasing what we said in Hoblitzelle v. Frechette, supra, 265: “The clear import of the District Court judgment is to assert complete direction and control of all aspects of . . . [the proceedings for the admission pro hac vice of Julien]. The plaintiffs . . . chose to invoke the jurisdiction of the District Court, and that court assumed jurisdiction even though the state courts were equally open to entertain the case [and were doing so]. Scott v. Germano, 381 U.S. 407, 409, 85 S. Ct. 1525, 14 L. Ed. 2d 477. It is neither our province nor our wish, in this proceeding, to consider the assumption, the scope or the result of the exercise of that jurisdiction.” In considering the merits of this appeal, we are merely exercising the undoubted appellate jurisdiction which this court has over the judgment
We turn now to a consideration of the merits of the plaintiff’s appeal. In limine, it is important to note that the administrator is the sole party plaintiff in these proceedings. Julien was not a party to these proceedings in the Superior Court and is not a party to this appeal, and there is no indication that he has ever attempted to intervene or present any claim in our courts that he has been denied any right. We are concerned solely with the plaintiff’s claim of a right to have his case tried by an attorney who has not been admitted to the Connecticut bar, and Julien has asserted no claim of his own. The rule of jus tertii is fully applicable. Tileston v. Ullman, 318 U.S. 44, 46, 63 S. Ct. 493, 87 L. Ed. 603; Mendez v. Mendez, 160 Conn. 237, 278 A.2d 795. A litigant may only assert his own constitutional
The plaintiff’s application pursuant to the provisions of § 15A of the Practice Book was entitled “Motion for Permission to Allow Attorney Alfred Julien of the New York Bar to Try This Case on Behalf of the Plaintiff as Provided for Under Section 15a of the Connecticut Practice Book, as Amended,” It alleged the pendency of the malpractice case, that it was a difficult case to try, that the plaintiff had retained Attorney Julien of the New York bar to handle the case, that Julien is one of the foremost medical malpractice trial attorneys in the United States and has tried numerous medical malpractice cases to successful conclusions, that he has had a great deal of experience, that the subject matter of the pending litigation is very technical in nature and difficult to prove and will require the services of an attorney who is familiar with the medical field, that the plaintiff retained Julien to handle this case because of his expertise, and that the outcome of the case will “affect the financial welfare of the estate of the decedent.” The application also recited that during the course of the trial the plaintiff’s Connecticut attorney would be present, would be responsible for all pleadings, briefs and other papers, and would assume full responsibility for the conduct of the trial and of Julien.
From the court’s denial of the application, the plaintiff filed the appeal to this court and, in accordance with the provisions of § 613 of the Practice Book, filed his request for finding and draft finding.
Because of the importance which attaches to what a party has actually proved as distinguished from what he has pleaded in one court or another, it is pertinent to examine the draft finding submitted by the plaintiff as his “statement ... of the relevant and material facts proven” in support of his application and his “claims of law made in the trial court with the rulings of the court thereon.” For this reason, we have printed in a footnote the entire draft finding
The trial court filed a finding of facts with the conclusions it reached thereon. It referred to the pending malpractice case and found that the plaintiff had retained Attorney Julien of the New York bar to handle the case for him, that Julien had referred the case to Connecticut counsel for the purpose of instituting suit, that that counsel had brought suit, that the plaintiff had moved for permission to allow Julien to he admitted specially for the trial pursuant to § 15A of the Practice Book, and that the court had denied the motion after argument. It then found that the plaintiff made no showing that the application was “a special or infrequent occasion,” that the only reason given by the plaintiff in open court on the hearing on the application was that the plaintiff “desired” Julien to represent him,
The conclusions are inescapable both that no evidence whatsoever was submitted to the trial court to show “good cause” why the application to admit Julien pro hac vice should be granted and that no claim of any violation of any constitutional right of the plaintiff was ever submitted to that court. Under these circumstances, we find no error in the conclusions reached by the court and in its denial of the application.
While this decision on the merits of the appeal is conclusive of the matter before us and no further discussion is required, the crossruff aspects of the proceedings instituted by the plaintiffs in the federal court and the observations of that court in Silverman v. Browning, 359 F. Sup. 173, prompt us to further comment. Both Judge Clarie and Judge Newman in their opinions suggested that the Superior Court and counsel appearing before it had misread or misconstrued the provisions of § 15A of the Practice Book
For all its ramifications, this case is essentially one where the trial court found that the plaintiff had not sustained his burden of proof, and we find that there was no error in that conclusion of the court.
There is no error.
In this opinion Loiselle, MacDonald, and Longo, Js., concurred.
“[Practice Book] Sec. 15A. —attorneys of other jurisdiction's appearing pro hac vice An attorney who is in good standing at the bar of another state, the District of Columbia, or the commonwealth of Puerto Bieo, may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state; provided, however, that a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Where feasible, the application shall be made to the judge before whom such cause is likely to be tried.
“[Practice Book] Sec. 614. form and contents of draft finding The draft finding shall contain, under separate headings, a statement, in consecutive, numbered paragraphs, of the relevant and material facts proven, the conclusions of the court, the claims of law made in the trial court with the rulings of the court thereon, and the ruling on evidence or other rulings on the trial which the appellant desires to have reviewed. The draft shall bo in substantial conformity with Form 603, statements of rulings on evidence shall comply with See. 648, and appropriate references to pages of the transcript shall be made as provided in Sec. 641.”
“FIRST: The following facts are found:
“1. The above captioned case was returnable to this Court on the first Tuesday of August, 1968.
“2. This case is a medical malpractice death action.
“3. The Plaintiff, Jerome Silverman, Administrator of the Estate of Harold Nathan, retained attorney Alfred S. Julien of New York*174 City, a member of the Bar of the State of New York, to handle this ease, and. to take whatever action necessary to protect the Plaintiff’s rights.
“4. The only state where this action could be instituted was the State of Connecticut.
“5. Attorney Alfred S. Julien referred this case to Attorneys Feingold & Fernino of Hartford, Connecticut for the purposes of instituting suit.
“6. Attorneys Feingold & Fernino brought suit on this ease in the Superior Court for Fairfield County at Stamford on behalf of the Plaintiff, Jerome Silverman, Administrator of the Estate of Harold Nathan.
“7. By motion dated April 13, 1972, the Plaintiff, Jerome Silver-man, Administrator of the Estate of Harold Nathan, moved for permission to allow Attorney Alfred S. Julien, to be admitted specially for the trial of this case, pursuant to Bule 15A of the Connecticut Practice Act.
“8. The Plaintiff’s motion was denied by the court on May 5, 1972, after argument.”
“[Practice Book] Sec. 223. raising questions op law In trials to the court, if counsel intends to raise any question of law which may be the subject of an appeal to the supreme court, he must state the same distinctly to the court before his argument is closed, and in such time as to give the opposing counsel an opportunity to discuss the question, and must request the court to take note of the point. If this be omitted, it will not be the duty of the court to decide the question. Counsel shall present the questions of law in writing, unless the exigencies of the case render this impracticable.”
See footnote 1, supra.
Dissenting Opinion
(dissenting.) As properly noted in the majority opinion, “we are merely exercising the undoubted appellate jurisdiction which this court has over the judgment of a trial court in this state.” That judgment is the denial by the Superior Court
An examination of the entire record discloses (1) that the parties and the court misunderstood the procedure for making a § 15A application for admission of an out-of-state attorney to participate in the trial of a case before a court of this state, and (2) that the trial court misconstrued the provisions of that rule.
Section 15A expressly provides that the application is to be made by “a member of the bar of this state.” See footnote 1 of the majority opinion. In this case, the application was made by the plaintiff through his Connecticut attorney. While this defect is not a matter of any substance, it is important to emphasize that such an application is not one brought by the litigant, but rather it is one that is brought by a member of the bar of this state and an officer of the court. See In re Application of Plantamura, 149 Conn. 111, 113, 176 A.2d 61, cert. denied, 369 U.S. 872, 82 S. Ct. 1141, 8 L. Ed. 2d 275; Heiberger v. Clark, 148 Conn. 177, 186, 169 A.2d 652. As in an application for admission to the bar, there are no adversary parties in a technical legal sense when application is made for an out-of-state attorney to appear pro hac vice pursuant to § 15A. See Heiberger v. Clark, supra, 182. For those reasons it is not surprising that § 15A does not require an evidentiary hearing to establish the facts set forth in the application. The rule only calls “for good cause shown upon written application.” Indeed, in this case the trial court did not take any evidence, and the parties “in opposition” did not dispute any of the facts set forth in the application.
The only “facts” properly before us are the undisputed representations in the written application. The conclusions of the trial court are therefore tested by those representations of fact.
The application in relevant part states that the outcome of the plaintiff’s malpractice case will “affect the financial welfare” of the decedent’s estate; that “the subject matter of the litigation at bar is very technical in nature and difficult to prove”; that “[A]ttorney . . . Julien . . . over the years has acquired a special skill or knowledge with respect to medical malpractice cases, which is important to the trial of the plaintiff’s cause of action”;
In ruling on the application the trial court stated: “The two principal bases on which he would be permitted here apparently are not present, are they? He [Julien] has no long-standing attorney-client relationship, and although he has a specialized skill, the litigant is certainly not unable to secure the services of Connecticut counsel who have the same skill.” The two principal bases referred to by the trial court are examples given in § 15A of what “may” constitute “good cause.” Those examples
I would therefore find error and remand the case with direction to reconsider the application.
It is, of course, proper to set forth in a finding the conclusions of the court and claims of law of the parties whieh do not appear on the face of the record, but there can be no “facts found” when no evidence is taken.
The application set forth Julien’s qualifications as follows: “Mr. Julien was admitted to the bar of New York in 1933 and is 'a veteran malpractice attorney’ (opinion of federal court injunction dated April 29, 1971, page 2). In addition, he has participated in a joint symposium held by the Hartford County Bar Association and Hartford County Medical Association, on May 11, 1970, at the
Ethical Consideration 3-9 of the Code of Professional Responsibility is relevant to the interpretation of Rule 15A:
“[T]he demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice.”
“The Canons and Disciplinary Rules contained in the Code of Professional Responsibility as adopted by the American Bar Association and as recommended by the House of Delegates of the Connecticut Bar Association for adoption were approved, and the Ethical Considerations of the Code as adopted by the American Bar Association were approved in principle, by the judges of the Superior Court effective Oct. 1, 1972. ...” Conn. Practice Book, p. 1 n.
Reference
- Full Case Name
- Jerome Silverman, Administrator (Estate of Harold Nathan) v. St. Joseph’s Hospital Et Al.
- Cited By
- 32 cases
- Status
- Published