DOCKET NO. CR06-0129997
DANIELSON SUPERIOR COURT
STATE OF CONNECTICUT: J.D. OF WINDHAM
VS
PAUL M. NGOBENI: NOVEMBER 15, 2007
CORRECTED
MEMORANDUM OF DECISION
Pursuant to an arrest warrant signed by the court on September 27, 2006, the defendant was charged by information with five counts, as follows:
Count 1- larceny in the sixth degree in violation of Genera' Statute § 53a-125b,
Count 2- practicing law while license is suspended in violation of General Statute § 51 -88,
Count 3- forgery in the third degree in violation of General Statute § 53a-140,
Count 4- larceny in the forth degree in violation of General Statute § 53a-125, and
Count 5- larceny in the third degree in violation of General Statute § 53a-124.
It is alleged that Paul Ngobeni was a licensed attorney in the state of Connecticut.
His license was suspended by order of the Superior Court (Bryant, J.) on or about December 19, 2005. (There have been subsequent disciplinary proceedings and orders as to Mr. Ngobcni which arc not considered by this warrant or by this opinion.) Mr. Ngobeni's privilege to practice law before the Board of Immigration Appeals and the Department of Homeland Security was suspended on or about February, 2006.
A trustee was appointed to assume the obligations of Mr. Ngobeni's practice.
The warrant alleges that Mr. Ngobeni met with a client in March, 2006 and on subsequent dates. The client alleges she hired Mr. Ngobeni to process an immigration matter through the United States Custom and Immigration Service. Mr. Ngobeni‘s services included a consultation, the quotation of a fee and the provision of a letter outlining the terms of the representation. The allegations support, if proven, a finding that Mr. Ngobeni was acting as an attorney-at-law. The forgery and larceny charges are based in part on the allegation that Mr. Ngobeni altered checks or money orders provided by his "client".
In a document entitled "Defendant's Verified Amended Motion to Dismiss" dated May 20, 2007, Mr. Ngobeni, representing himself, moves to dismiss the allegations of the complaint. The motion to dismiss is directed primarily to the charge of practice of law by persons not attorneys. For purposes of this motion, the court is treating the motion to dismiss as having been brought pursuant to Connecticut Practice Book § 41-8(2).
General Statute § 5 1-88 is entitled "Practice of law by persons not attorneys". The statute provides in relevant part as follows:
(a) A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attorney-at-law for another, in any court of record in this state, (2) make it a business to practice law, or appear as an attorney-at- law for another in any such court, (3) make it a business to solicit employment for an attorney-at-law, (4) hold himself out to the public as being entitled to practice law, (5) assume to he an attorney-at-law, (6) assume, use or advertise the title of lawyer, attorney and counselor-at-law, attorney-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term, in such manner as to convey the impression that he is a legal practitioner of law, or (7) advertise that he, either alone or with others, owns, conducts or maintains a law office, or office or place of business of any kind for the practice of law.
Subsection (b) of the statute provides that a person who violates the provisions of this statute shall be fined not more than two hundred fifty dollars or imprisoned not more than two months or both.
The defendant's first claim relates to the charge of the practice of law by persons not attorneys. The crux of the defendant's argument is that the purpose of this particular statute is to enforce the prohibition against the unauthorized practice of law by persons who have not been admitted as attorneys. By extension of the argument, since the defendant is admitted to the Connecticut bar, and his admission has not been revoked, he continues to be an attorney. As such, he is exempt from this statute.
In its response, the state argues that General Statute § 51-88 is a part and parcel of a chapter entitled "Attorneys" which includes sections 51-80 through 51-94. Under this chapter, the court is charged and empowered with the supervision of the practice of law by both attorneys and the prohibition against such practice by non-attorneys.
A review of this chapter shows that the court is given power to regulate the admission of attorneys, to investigate the qualifications of applicants, to impose an occupational tax, to regulate interest on lawyer's client's fund accounts, and etc. The chapter further establishes the power of the Statewide Grievance Committee and the Statewide Bar Counsel. The state's argument is that § 51-88 is part and parcel of the overall legislative scheme which allows the court broad supervision over the practice of law.
A casual review of other state's laws in this regard makes the distinction between lawyers and non-lawyers clear. More to the point, other states make clear the distinction between lawyers in good-standing (i.e. active members), and lawyers under suspension, such as the defendant in the present case. For example, the California State Bar Act, § 6125 states that "no person shall practice law in California unless the person is an active member of the state bar". Section 6126a states that "any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the state bar or otherwise authorised pursuant to statute or court rule to practice law in the state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in jail. . . or by a tine of up to one thousand dollars or both. .. ."
The applicable provision of the Massachusetts state law prohibits any individual,".... other than a member in good-standing of the bar of this Commonwealth. . ." from practicing law. See ALM GL Ch. 221, § 46A. Similarly, Rhode Island prescribes that "no person, except a duly admitted member of the bar in this state, whose authority as a member to practice law is in full force and effect, shall practice law in this state." The prohibition against the unauthorized practice of law contains the same limitations. See R.1. Gen. Laws § 1l-2'7-5, 11-27-12.
In short, a number of other jurisdictions distinguish between lawyers who are authorized to practice and those who are not in good standing with the bar. Those jurisdictions also make the more simple distinction between lawyers and non-lawyers.
One must presume that our legislature could also have distinguished between a suspended attorney and a non-attorney or lay person in writing this statute. To interpret the phrase "a person who has not been admitted as an attorney" to mean the same as a lawyer who has been admitted and is presently suspended is not logical.
It is worthy of note that the allegations of the warrant are that Mr. Ngobeni is suspended from the practice of law. There is no allegation that he has been disbarred or that he has resigned, which might call into question the fact his admission has been revoked in some form. There is also an obvious difference between an application for readmission and one for reinstatement. An attorney suspended from practice or placed on inactive status would apply for reinstatement or would be reinstated following the time specified in his suspension. An attorney who had been disbarred who resigned or retired would apply for readmission. Connecticut Practice Book Section 2-47 et seq.
Further, to adopt the interpretation urged by the state would lead to the conclusion that a suspended attorney is a lay person. As such, they would not be subject to the other provisions of the statutes with respect to attorney discipline nor would they be subject to the provisions of the Practice Book with respect to the regulation and the discipline of attorneys.
The state's argument and interpretation would make the language of the statute a nullity.
The court accordingly grants the defendant's motion to dismiss the second count of the information in this case.
In light of the foregoing ruling, the court declines to address the alternative grounds raised by the defendant that the provisions of General Statute § 5 1-88 are unconstitutionally vague.
The defendant also alleges that the state is without authority to prosecute him for practicing law in the federal arena because the supremacy clause of the United States Constitution prohibits the state from exercising such authority. The defendant's claim fails on two grounds. First, the defendant's right to practice before the Board of Immigration/Department of homeland Security is alleged to have been suspended.
Secondly, the issue as to whether the state can prosecute an attorney for the practice of law in a federal court is settled by the Appellate Court decision in the Statewide Grievance Commission v. Gifford. 76 Conn. App. 454, 820 A.2d, 309 (2003). "....the broad supervisory role of the judiciary in governing attorney conduct causes us to conclude that the plain language of the rule subjects the defendant, a licensed Connecticut attorney, to discipline by Connecticut courts for his actions in federal District Court." Id. p. 459.
The defendant next moves for a dismissal of all of the charges "because this prosecution is vindictive". Reading the allegations contained in this portion of the defendant's motion to dismiss, one is forced to wade through fields of ad hominem remarks. Once the remarks are removed, the argument remaining is that the prosecutor's actions "Lead to the inescapable conclusion that she has been motivated by vindictiveness against the defendant from the onset".
The defendant's entire argument is based on a premise that the prosecutor made a statement to the court at the time that bail was set that the defendant regarded as inaccurate. This court takes notice of the fact that the defendant's response was to file a grievance against the state's attorney, which was subsequently dismissed. The state's attorney has disqualified herself and a representative from the Chief State's Attorney's office now represents the prosecuting authority.
The argument is without any support whatsoever. There is no allegation, or even a suggestion of a fact, that the prosecuting authority and the defendant had any connection prior to the investigation of this action. There is no allegation or fact to support the claim of vindictiveness and/or animus. There is no credible allegation to support the required standard that the prosecutor harbored a genuine animus toward the defendant and also that the defendant would not have been prosecuted except for the animus. State v. Lee, 86 Conn. App. 323, 860 A.2d, 1268 (2004).
The defendant's motion to dismiss on the grounds of vindictive prosecution is hereby denied.
The defendant also moves that the charges be dismissed because of "proven prosecutorial misconduct". In addition to repeating and referring to the same allegations as made in the claim for vindictive prosecution, the defendant supports this claim with the allegation that the state's attorney had discussions about his case with a member of the Statewide Bar Counsel's office. After reviewing the allegations of this portion of the motion and the legal grounds cited for the granting of this motion, the court denies the motion to dismiss on the basis of prosecutorial misconduct.
Finally, the defendant alleges that the court lacks subject matter jurisdiction over the prosecution of an "admitted" attorney for violation of the rules of professional conduct or violation of a Superior Court order. To the extent that the defendant argues that the provisions of § 51-88 are not applicable to him under the terms of the present charges, the court has already agreed, and the court declines to address the other arguments made in this portion of the motion.
In conclusion, the court grants such portion of the defendant's motion as requests the motion to dismiss the Second Count of the information alleging practice of law by a person not an attorney. The balance of the defendant's motion is denied.
BY THE COURT
Robaina, J.
Click here to sign up to receive our free daily headline email newsletter
